Opinion
02-23-00289-CV
03-14-2024
2014 Honda, Appellant v. The State of Texas, Appellee
On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. S-14651.
Before Sudderth, C.J.; Bassel and Womack, JJ.
MEMORANDUM OPINION
Bonnie Sudderth Chief Justice
In this civil-forfeiture case, we will affirm the trial court's summary judgment forfeiting a vehicle to the State.
I. Background
On September 4, 2020, law enforcement found Blake Webb Andrews sitting in the driver's seat of a parked Honda CRV. The vehicle's motor was running, and Andrews had observable signs of intoxication, including bloodshot and watery eyes, slurred speech, and the strong odor of alcohol on his breath. After he refused to take a Standardized Field Sobriety Test, Andrews was arrested. Following his arrest, Andrews consented to two breath tests, which showed alcohol-concentration results of 0.231 and 0.246 grams of alcohol per 210 liters of breath.
Andrews was charged with driving while intoxicated (DWI) with at least two prior DWI convictions, a third-degree felony. See Tex. Penal Code Ann. §§ 49.04(a), 49.09(b)(2). But pursuant to a plea bargain, Andrews pleaded guilty to a misdemeanor DWI offense and was sentenced to 30 days in jail. See id. § 49.09(a).
At the time of his September 2020 DWI arrest, Andrews had four prior DWI convictions.
In September 2020, the State filed a Notice of Seizure and Intended Forfeiture asserting its intent to seize Andrews's Honda CRV as contraband under Chapter 59 of the Texas Code of Criminal Procedure. In May 2023, the State moved for summary judgment on its civil forfeiture claim. In Andrews's response to the motion, he argued that the State had not satisfied its burden to show that his Honda CRV was contraband because (1) he had pleaded guilty to a misdemeanor DWI offense, not felony DWI, and (2) a genuine issue of material fact existed as to whether his Honda CRV had been used to commit his DWI offense. In August 2023, the trial court signed an order granting the State's motion for summary judgment. This appeal followed.
II. Discussion
In a single point, Andrews contends that the trial court erred by granting the State's summary judgment motion. To support this contention, he relies on three arguments. His first two arguments mirror those raised in his summary judgment response: first, that his Honda CRV does not qualify as contraband under Chapter 59 because the crime to which he pleaded guilty and for which he was convicted was a misdemeanor, not a felony, and second, that a fact issue exists regarding whether his Honda CRV was used in the commission of his DWI offense. Andrews's third argument is a constitutional one. He asserts that the forfeiture of his vehicle lacks proportionality and thus violates the Eighth Amendment's Excessive Fines Clause. See U.S. Const. amend. VIII. For the reasons discussed below, we reject all of Andrews's arguments.
A. Standard of Review
We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff is entitled to summary judgment on a cause of action if it conclusively proves all essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986).
B. Civil Forfeiture
Texas law allows the State to seize certain property and obtain it through a forfeiture proceeding if the property is "contraband." See Tex. Code Crim. Proc. Ann. arts. 59.01(2), 59.02(a), 59.04. Such a proceeding is "distinctly civil in nature: 'parties must comply with the rules of pleading as required in civil suits,' id. art. 59.05(a), cases 'proceed to trial in the same manner as in other civil cases,' and '[t]he state has the burden of proving by a preponderance of the evidence that property is subject to forfeiture,' id. art. 59.05(b)." State v. One (1) 2004 Lincoln Navigator, 494 S.W.3d 690, 693 (Tex. 2016). Seized property is contraband if it was used (or was intended to be used) in the commission of certain offenses. See Tex. Code Crim. Proc. Ann. art. 59.01(2). The requisite "substantial connection" between the "property to be forfeited and the criminal activity defined by the statute" may be proved by circumstantial evidence. $27,877.00 Current Money of U.S. v. State, 331 S.W.3d 110, 114, 119 (Tex. App.-Fort Worth 2010, pet. denied) (holding evidence factually sufficient to support forfeiture where claimant was unemployed, there was no evidence of a legitimate job or other legal source of income, and $23,020 was found in various denominations tied in hair bands inside a bag (citing State v. $11,014.00, 820 S.W.2d 783, 784, 785 (Tex. 1991))).
Here, the State alleged that Andrews's vehicle constituted contraband because it had been "used in the commission of . . . an[] offense under Chapter 49, Penal Code, that [was] punishable as a felony of the third degree or state jail felony" and Andrews had at least three prior DWI convictions. See Tex. Code Crim. Proc. Ann. art. 59.01(2)(A)(v).
The purpose of forfeiting contraband to the government is to keep the property and its proceeds from being used for illegal purposes. See Bennis v. Michigan, 516 U.S. 442, 452, 116 S.Ct. 994, 1000 (1996) ("Forfeiture of property prevents illegal uses . . . by imposing an economic penalty, thereby rendering illegal behavior unprofitable."); Fant v. State, 931 S.W.2d 299, 308 (Tex. Crim. App. 1996) (same). The State need not prosecute or obtain a criminal conviction against the property's owner to pursue civil forfeiture of contraband. See Tex. Code Crim. Proc. Ann. art. 59.05(d) ("A final conviction for an underlying offense is not a requirement for forfeiture under this chapter.").
C. The State Conclusively Proved the Elements of its Forfeiture Claim
In Andrews's first two arguments, he contends that-for various reasons-the State failed to prove that his Honda CRV constituted contraband for purposes of Chapter 59. See id. art. 59.01(2). We disagree.
First, the mere fact that Andrews pleaded guilty to a misdemeanor DWI offense pursuant to a plea bargain does not-as Andrews contends-prevent his vehicle from qualifying as contraband under the civil forfeiture statute. See id. As relevant here, the statute defines contraband as "property . . . used in the commission of . . . any offense under Chapter 49, Penal Code, that is punishable as a felony of the third degree or state jail felony, if the defendant has been previously convicted three times of an offense under that chapter." Id. art. 59.01(2)(A)(v) (emphasis added). Had the Legislature intended to limit the civil forfeiture statute's applicability to situations in which a defendant was actually punished for a felony DWI offense, it would have used the phrase "punished as" instead of "punishable as" in Article 59.01(2)(A)(v). See Samaripas v. State, 454 S.W.3d 1, 8 & n.5 (Tex. Crim. App. 2014) (noting that Legislature's use of "punished as" versus "punishable as" signals a significant distinction and that only "punished as" refers to how the offense was actually punished). Andrews has offered no authority suggesting that the Legislature intended such a limitation, and our precedent indicates otherwise. See One (1) 1998 Blue Chevrolet Camaro v. State, No. 02-10-00252-CV, 2011 WL 3426263, at *1-2 (Tex. App.-Fort Worth Aug. 4, 2011, no pet.) (mem. op.) (holding evidence sufficient to show that appellant's vehicle had been used in the commission of a felony under Penal Code Section 38.04-and thus constituted contraband subject to forfeiture- even though appellant had pleaded guilty to a lesser-included misdemeanor offense pursuant to a plea bargain). Because Andrews had four prior DWI convictions, his September 4, 2020 DWI offense was punishable as a felony, see Tex. Penal Code Ann. § 49.09(b)(2); this is all that the civil forfeiture statute requires, see Tex. Code Crim. Proc. Ann. art. 59.01(2)(A)(v); One (1) 1998 Blue Chevrolet Camaro, 2011 WL 3426263, at *1-2.
Second, there is no genuine issue of material fact regarding whether Andrews used his Honda CRV in the commission of his DWI offense. The State presented uncontested summary judgment evidence showing (1) that on September 4, 2020, Andrews had been found sitting in the driver's seat of a Honda CRV with the engine running while displaying observable signs of intoxication; (2) that he had been arrested for DWI; (3) that the Honda CRV had been seized by law enforcement shortly after Andrews's arrest; (4) that the breath tests administered to Andrews shortly after his arrest showed that his alcohol concentration was well above the legal limit; (5) that Andrews had four prior DWI convictions; (6) that he had been charged with felony DWI in connection with the September 4, 2020 incident; and (7) that he had ultimately pleaded guilty to-and been convicted of-a misdemeanor DWI offense. Because-as the State's summary judgment evidence showed-Andrews pleaded guilty to DWI, he cannot contest the fact that he operated a vehicle in a public place while intoxicated on September 4, 2020. See In re Commitment of Guest, 02-19-00295-CV, 2021 WL 1245087, at *10 (Tex. App.-Fort Worth Apr. 1, 2021, pet. denied) (citing Johnston v. Am. Med. Int'l, 36 S.W.3d 572, 576 (Tex. App.-Tyler 2000, pet. denied)); see also Tex. Penal Code Ann. 49.04(a). Further, the State's evidence showed that the seized Honda CRV was the vehicle that Andrews had operated while intoxicated. Thus, the State satisfied its burden to show that Andrews had used the Honda CRV in the commission of his September 4, 2020 offense. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd., 710 S.W.2d at 60; see also Tex. Code Crim. Proc. Ann. arts. 59.01(2), 59.05(b); State v. Five Thousand Five Hundred Dollars in U.S. Currency, 296 S.W.3d 696, 701 (Tex. App.-El Paso 2009, no pet.) (explaining that in a forfeiture proceeding, "the State must prove that there is a substantial connection between the property and the illegal activity").
The State's only summary judgment evidence showing that Andrews had been found in his vehicle with the engine running was the following excerpt from the arresting officer's affidavit:
Upon my arrival, I met with M. Villareal who identified herself as a TABC agent . . . . Villareal said that she was conducting a bar check at the location, and that she observed [Andrews] exit the bar and [that he] appeared to be stumbling while walking . . . . Villareal said that once the bar check was done, she came outside and observed Andrews sitting in the driver seat of a white Honda CRV . . . and noticed that the engine was running. Villareal said she approached [the] vehicle and had . . . Andrews turn the ignition off. Villareal then took the keys from Andrews and . . . placed them on top of the car.Villareal's out-of-court statements to the arresting officer are hearsay. See Tex. R. Evid. 801(d). But "[i]n the absence of an objection, hearsay in an affidavit is competent summary judgment evidence." Reyna v. Luna, No. 13-03-676-CV, 2005 WL 2559774, at *2 n.1 (Tex. App.-Corpus Christi-Edinburg Oct. 13, 2005, no pet.) (mem. op.) (citing Einhorn v. LaChance, 823 S.W.2d 405, 410 (Tex. App.-Houston [1st Dist.] 1992, writ dism'd w.o.j.)); see also Tex. R. Evid. 802 ("Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay."). Because Andrews did not object in the trial court to the hearsay in the arresting officer's affidavit, he has waived this issue. See Tex. R. App. P. 33.1(a); Silverado Truck & Diesel Repair, LLC v. Lawson, No. 05-18-00540-CV, 2019 WL 1467966, at *3 (Tex. App.-Dallas Apr. 3, 2019, no pet.) (mem. op.); Einhorn, 823 S.W.2d at 410. Thus, Villareal's statements constitute competent summary judgment evidence. See Reyna, 2005 WL 2559774, at *2 n.1; cf. Tex. Com. Bank, N.A. v. New, 3 S.W.3d 515, 517 (Tex. 1999) (holding unobjected-to hearsay constituted probative evidence in support of default judgment and satisfied requirement of evidence of unliquidated damages).
D. Andrews Failed to Preserve His Constitutional Complaint
On appeal, Andrews argues that forfeiture of his vehicle violates the Eighth Amendment's Excessive Fines Clause. See U.S. Const. amend. VIII ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."). But because he did not raise this issue at any point in the trial court, our Rule 33.1(a) analysis of a similarly unpreserved issue in an earlier civil-forfeiture case applies:
As a general rule, a constitutional claim must have been asserted in the trial court to be raised on appeal. See Tex. R. App. P. 33.1(a); Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (citing Wood v. Wood, 320 S.W.2d 807, 813 (Tex. 1959)); Walker v. Emps. Ret[.] Sys., 753 S.W.2d 796, 798 (Tex. App.-Austin 1988, writ denied) ("A constitutional challenge not raised properly in the trial court is waived on appeal."). This rule extends to the Excessive Fines Clause of the Eighth Amendment in civil proceedings. See Romero v. State, 927 S.W.2d 632, 634 n.2 (Tex. 1996) (refusing to consider whether a civil forfeiture violated the Excessive Fines Clause because the issue was not preserved); White Lion Holdings, L.L.C. v. State, No. 01-14-00104-CV,
2015 WL 5626564, at *4 (Tex. App.-Houston [1st Dist.] Sept. 24, 2015, pet. [denied]) (mem. op. on reh'g) ("Both due-process and excessive-fines arguments can be waived. By failing to preserve these arguments, [appellant] has waived them." (footnote omitted)); see also Sample v. State, 405 S.W.3d 295, 304 (Tex. App.-Fort Worth 2013, pet. ref'd) (holding that an appellant in a criminal appeal had failed to preserve an Eighth Amendment claim by not raising it in the trial court).
[Appellant] raised the Excessive Fines issue for the first time in his appellate brief. By failing to raise an Eighth Amendment claim in the trial court, he failed to preserve error, thereby waiving the issue. We overrule [Appellant]'s second issue.One 2006 Harley Davidson Motorcycle v. State, No. 02-16-00450-CV, 2017 WL 4819430, at *6 (Tex. App.-Fort Worth Oct. 26, 2017, no pet.) (mem. op.); see Tex. R. App. P. 33.1(a). Similarly, because Andrews has waived his excessive-fines complaint, we do not reach its merits.
Having concluded (1) that the State satisfied its burden to prove that Andrews's Honda CRV constituted contraband under Chapter 59 of the Texas Code of Criminal Procedure and (2) that Andrews has waived his excessive-fines complaint, we overrule Andrews's sole point.
III. Conclusion
Having overruled Andrews's sole point, we affirm the trial court's judgment.