Opinion
No. 07-16-00356-CV
07-23-2018
2000 GMC SIERRA TRUCK, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 372nd District Court Tarrant County, Texas
Trial Court No. D372-S-12984-15; Honorable Sheila Wynn, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Dianna J. Seymour, appeals from the trial court's judgment ordering forfeiture of her white 2000 GMC Sierra truck bearing a vehicle identification number of 1GTEC14TXYZ366627. By two issues, she challenges the sufficiency of the evidence to support the trial court's findings that (1) her son was an equitable owner of the truck and (2) she was not an innocent owner of the truck. We affirm.
Originally appealed to the Second Court of Appeals, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV'T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Second Court of Appeals and this court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3.
BACKGROUND
Seymour is the registered owner of the 2000 GMC Sierra truck the subject of this appeal. Her son, Jason Holland, lives with her and is insured to drive the truck. He was under surveillance by law enforcement for dealing drugs. The Tarrant County Narcotics Unit received a tip from a confidential informant that Holland would be delivering methamphetamine in a white GMC truck. Holland was stopped for an arrestable traffic violation, and when the truck was searched, officers found two baggies containing a crystalline powder that tested positive for methamphetamine. Based on the quantity of the drug, Holland was arrested for intent to deliver methamphetamine.
Holland was charged with delivery of a controlled substance in an amount of one gram or more but less than four grams and granted deferred adjudication community supervision for ten years. He was also assessed a fine of $1,000 which was not suspended. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(c) (West 2017). At the time of trial, he had two prior drug-related convictions.
Pursuant to chapter 59 of the Texas Code of Criminal Procedure, the truck Holland was driving was seized on August 27, 2015, as contraband used in the commission of a felony under chapter 481 of the Texas Health and Safety Code, otherwise known as the Controlled Substances Act. See TEX. CODE CRIM. PROC. ANN. art. 59.01(2)(B)(i), 59.02(a) (West 2018). On September 1, 2015, the State timely provided Notice of Seizure and Intended Forfeiture supported by a sworn statement from the officer who seized the truck. Art. 59.04(a), (c). Seymour filed her answer denying the State's allegations. The case was tried to the bench.
Lieutenant Randy Baker testified that when he was with the Tarrant County Narcotics Unit, a confidential informant, who had made previous drug buys from Holland at the home he shared with Seymour, informed him that Holland would be transporting methamphetamine in a white 2000 GMC Sierra truck. During her testimony, Seymour acknowledged her son's prior drug-related convictions but denied any knowledge of his making drug deals from their residence or transporting drugs in the truck.
She testified that she bought the truck in 2012 from a business associate as an extra vehicle for hauling items she did not want in her other vehicle. She explained that Holland was the primary user of the truck as transportation to and from work and that he stored his tools in the truck. He was listed on her insurance policy as a driver of the truck. However, she denied ever conveying the truck to Holland.
During cross-examination, the prosecutor presented her with a certified copy of the title history of the truck which reflected that Holland had originally signed the title. She clarified that Holland was the intended owner of the truck but when he could not afford it, she changed the title to reflect herself as the sole owner.
When Seymour completed her testimony, the trial court asked her what her plan for the truck was when she purchased it. She explained that it was simply an extra vehicle but that Holland drove it more than she did because he had no other vehicle. When the truck was seized, she and Holland were the only insured drivers and Holland had his own set of keys to the truck.
After brief arguments, the trial court found that Holland was "at the very least" an equitable owner of the truck making the truck the proper subject of a forfeiture under chapter 59. The trial court signed a judgment finding sufficient evidence to subject Seymour's truck to forfeiture from which she now appeals.
APPLICABLE LAW
A forfeiture proceeding is a civil proceeding. Art. 59.05(a), (b). In a forfeiture proceeding, the State is required to prove by a preponderance of the evidence that the seized property is contraband and that there is a substantial nexus or connection between the property to be forfeited and the statutorily defined criminal activity. See Vafaiyan v. State, No. 02-09-00098-CV, 2010 Tex. App. LEXIS 7273, at *22 (Tex. App.—Fort Worth Aug. 31, 2010, pet. denied) (mem. op.); $43,774.00 United States Currency v. State, 266 S.W.3d 178, 182 (Tex. App.—Texarkana 2008, pet. denied). As relevant in this case, contraband is defined as property that is used in the commission of any felony under chapter 481 of the Texas Health and Safety Code. Art. 59.01(2)(B)(i).
Once the State meets its burden of proof, a defendant may avail herself of the innocent owner defense provided in article 59.02(c)(1) of the Code. 2009 Black Infiniti G3S v. State, No. 02-14-00342-CV, 2016 Tex. App. LEXIS 9828, at *5-6 (Tex. App.—Fort Worth Aug. 31, 2016, no pet.) (mem. op.); $43,774.00 United States Currency, 266 S.W.3d at 182. Forfeiture is avoided if the defendant shows, by a preponderance of the evidence, that she acquired and perfected the interest prior to or during the act giving rise to the forfeiture and did not know or should not reasonably have known of the act giving rise to the forfeiture or that it was likely to occur at or before the time of acquiring and perfecting the interest. Id.
ISSUE ONE—FINDING THAT SEYMOUR'S SON WAS EQUITABLE OWNER OF TRUCK
Seymour contends the evidence is legally and factually insufficient to support the trial court's finding that her son was an equitable owner of her truck that resulted in its forfeiture. We disagree.
When, as here, no findings of fact or conclusions of law were requested or filed, we imply all findings and conclusions in support of the judgment. See Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011) (holding that the trial court's judgment should be upheld on any theory supported by the record); Tigh v. De Lage Landen Fin. Servs., 545 S.W.3d 714, 723 (Tex. App.—Fort Worth 2018, no pet.). We review the evidence to support the trial court's implied findings of fact by the same standards we apply to review the evidence to support jury findings, that is, by applying the legal and factual sufficiency tests. See 2004 Volkswagen Jetta v. State, 285 S.W.3d 507, 510 (Tex. App.—Dallas 2009, no pet.); Hopkins v. State, No. 02-02-130-CV, 2003 Tex. App. LEXIS 1448, at *6 (Tex. App.—Fort Worth 2003, no pet.) (mem. op.).
Seymour's legal sufficiency challenge requires us to examine the record for evidence that supports the trial court's adverse finding, while ignoring all evidence to the contrary. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). A legal sufficiency challenge may only be sustained when the record discloses (a) a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence, or (d) the evidence conclusively establishes the opposite of the vital fact in question. Id. at 810. In conducting a legal sufficiency review, we must consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that supports the verdict. Id. at 822. The test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Id. at 827.
A factual sufficiency challenge requires a reviewing court to consider, examine, and weigh all the evidence in the record, not just that evidence which supports the verdict. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998), cert. denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450 (1998). In doing so, the court no longer considers the evidence in the light most favorable to the disputed finding; instead, the court considers and weighs all the evidence and sets aside that finding only if it is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. at 407. In conducting a factual sufficiency review, we cannot, however, reweigh the evidence and set aside the finding merely because we feel that a different result is more appropriate. Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986).
ANALYSIS
Under article 59.01(6), "owner" is defined as a person who claims an equitable or legal ownership interest in property. An equitable interest in a vehicle is recognized when a person is in possession of a vehicle and exclusively uses the vehicle. The law does not require that an equitable owner of a vehicle be named on the title. See $574.37 U.S. Coin & Currency v. State, No. 02-06-434-CV, 2008 Tex. App. LEXIS 1729, at *17 (Tex. App.—Fort Worth March 6, 2008, no pet.) (mem. op.) (citing First Nat. Bank of El Campo, TX v. Buss, 143 S.W.3d 915, 922 (Tex. App.—Corpus Christi 2004, pet. denied) (recognizing that a person in possession of a vehicle who is the intended owner of that vehicle has an equitable possessory right even if not named on the vehicle's title)). See also 2004 Volkswagen Jetta, 285 S.W.3d at 511 (concluding that use of vehicle as primary driver a majority of the time even though title was in another party's name established driver was an equitable owner).
The evidence established that on the date of the truck's seizure, Seymour's son was the primary user and kept his tools for work in the truck. He was listed on the insurance policy as a driver of the truck and had his own set of keys. Seymour also testified that originally, her son was the intended owner of the truck but was removed from the title because he could not afford to buy it.
Viewing the evidence in the light most favorable to the judgment, we conclude the evidence is legally sufficient to support the trial court's finding that Holland was an equitable owner of the white 2000 GMC Sierra truck that was seized. We also find the trial court's finding is not against the great weight and preponderance of the evidence so as to be clearly wrong and unjust. Issue one is overruled.
ISSUE TWO—TRIAL BY CONSENT OF INNOCENT OWNER DEFENSE
By her second issue, Seymour asserts that although she did not plead the affirmative defense of innocent owner provided in article 59.02(c)(1) of the Code, the issue was tried by consent and the trial court erred in finding against her. We disagree.
Generally, an affirmative defense must be plead in a responsive pleading or it is waived. See TEX. R. CIV. P. 94; Alexander v. Kent, 480 S.W.3d 676, 701 (Tex. App.—Fort Worth 2015, no pet.). Even if an affirmative defense is not pleaded, an affirmative defense may be tried by express or implied consent. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991). To determine if trial was by consent, the reviewing court examines the entire record, not for evidence of the issue, but for evidence of trial of the issue. 2009 Black Infiniti G3S, 2016 Tex. App. LEXIS 9828, at *10-11 (citing Emerson Elec. Co. v. Am. Permanent Ware Co., 201 S.W.3d 301, 309 (Tex. App.—Dallas 2006, no pet.)). Consent may be found only when evidence regarding a party's unplead issue is developed under circumstances indicating both parties understood the issue was in the case and the other party failed to make an appropriate complaint. In the Interest of A.B.H., 266 S.W.3d 596, 600 (Tex. App.—Fort Worth 2008, no pet.) (noting that trial by consent is for exceptional cases and should be applied with care). (Emphasis added).
ANALYSIS
While Seymour was testifying, she claimed she never conveyed the truck to her son and she also denied any knowledge that he was dealing drugs from the home they shared and using the truck to deliver those drugs. The State objected on the ground that Seymour was "attempting to set up an innocent owner defense . . . under Rule 94 of the Texas Rules of Civil Procedure" which she had not plead in her answer. The trial court overruled the objection and asked to hear further testimony.
Seymour continued her testimony and in response to being asked if she gave her son "permission to do any of the things that he did with [her] truck," she answered, "[n]o." The State renewed the "innocent owner" objection and the trial court responded, "I understand."
Seymour argues that although the State's first objection was overruled, the State's subsequent objection was not ruled on resulting in waiver of the State's contention that the "innocent owner" defense was not tried by consent. We disagree. A trial court' ruling may be made expressly or implicitly. Based on its prior ruling, the trial court's response was an implicit ruling. See TEX. R. APP. P. 33.1(a)(2)(A). See also Blum v. Julian, 977 S.W.2d 819, 823 (Tex. App.—Fort Worth 1998, no pet.) (concluding that revision to predecessor of Rule 33.1(a) relaxed the former requirement of obtaining an express ruling).
An affirmative defense cannot be tried by consent when the opposing party makes an appropriate complaint. During Seymour's testimony, the State objected to development of the innocent owner defense on the ground that Seymour had not plead it in her answer. Although the trial court allowed Seymour to continue testifying, there could be no trial by consent because the State had already complained about that line of questioning. Seymour's failure to plead the innocent owner defense and the State's objections to trying the defense by consent resulted in a waiver of that affirmative defense. Issue two is overruled. See 2009 Black Infiniti G3S, 2016 Tex. App. LEXIS 9828, at *12 (citing Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 851 (Tex. App.—Dallas 2005, pet. denied)).
CONCLUSION
Having overruled both of Seymour's issues, we affirm the trial court's judgment.
Patrick A. Pirtle
Justice