Opinion
NO. 02-14-00342-CV
08-31-2016
2009 BLACK INFINITI G3S (VIN #JNKCV61E99M310051) APPELLANT v. THE STATE OF TEXAS APPELLEE
FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 179,751-B MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Glenna Kay Schumann appeals from a judgment awarding possession of a 2009 Infiniti to the Wichita Falls Police Department under the civil forfeiture statute. See Tex. Code Crim. Proc. Ann. arts. 59.01-.14 (West 2006 & Supp. 2016). In three issues, appellant, the owner of the Infiniti, contends that the evidence was legally insufficient to show that the car was contraband under article 59.01(2)(B)(i), that the evidence was factually insufficient to contradict the evidence supporting her innocent-owner affirmative defense, and that the trial court therefore erred by finding the car to be contraband. We affirm.
I. BACKGROUND
On September 18, 2013, Wichita Falls police officer Jonathan Lindsey pulled over appellant while she was driving the Infiniti. Appellant had been driving on Highway 287 and had just passed a sign that the police had placed along the side of the road indicating that the next exit was the last one before a drug checkpoint. After abruptly taking that exit, appellant failed to completely stop at the next intersection and turned without signaling. Appellant had a passenger in the car with her.
According to Officer Lindsey, appellant was nervous, was shaking, had a shaky voice, and seemed to be "thinking longer than average" when answering his questions. He described appellant as having an "extreme level" of nervousness. The passenger smelled of burnt marijuana and had a backpack on the floorboard between her legs. Appellant declined to allow the police to search the car, so a K9 officer performed an open-air sniff of the car. The officers could smell burnt marijuana from outside the car, and the K9 alerted to the passenger side door.
In the backpack, officers found a marijuana pipe and a zippered pouch containing crystal methamphetamine. While searching the car, officers found $95 in the car's center console and at least $1,825 in appellant's wallet. They also found two notebooks belonging to appellant that appeared to be transactional ledgers; handwritten notations in the notebooks contained references to various names, dates, weights, monetary amounts, and other items. Officers also found a "fix-it flat" can with an empty false bottom in the car.
The trial court admitted both notebooks into evidence.
Officers arrested both appellant and her passenger for "manufacture/delivery" of methamphetamine and seized the Infiniti. A grand jury subsequently no-billed the indictment presented against appellant for the same offense, and the State dismissed the charges against her. However, the State proceeded with forfeiture proceedings against the Infiniti. After a bench trial, the trial court entered judgment awarding possession of the Infiniti to the Wichita Falls Police Department.
II. APPLICABLE LAW
Property that is contraband is subject to seizure and forfeiture under chapter 59 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 59.02(a). As the supreme court has noted,
Though found in the criminal-procedure code, such forfeiture proceedings are 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). If the state carries its burden and "the court finds that all or any part of the property is subject to forfeiture, the judge shall forfeit the property to the state." Id. art. 59.05(e).State v. One (1) 2004 Lincoln Navigator, No. 14-0692, 2016 WL 3212490, at *1 (Tex. June 10, 2016). In a chapter 59 forfeiture hearing, the trial court must first determine whether the property in question is "contraband" as defined by the statute. See Tex. Code Crim. Proc. Ann. arts. 59.01(2), 59.05; 1996 Cadillac & 2002 Lincoln Autos. v. State, No. 2-07-017-CV, 2008 WL 163552, at *4 (Tex. App.—Fort Worth Jan. 17, 2008, no pet.) (mem. op.). Contraband is defined, in part, as "property of any nature, including real, personal, tangible, or intangible, that is . . . (B) used or intended to be used in the commission of: (i) any felony under Chapter 481, Health and Safety Code (Texas Controlled Substances Act)." Tex. Code Crim. Proc. Ann. art. 59.01(2)(B)(i). Conviction of an underlying offense is not required for forfeiture under the civil forfeiture statute. Id. art. 59.05(d).
The State must establish, by a preponderance of the evidence, a substantial nexus or connection between the property to be forfeited and the statutorily defined criminal activity. State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991); 1996 Cadillac & 2002 Lincoln Autos., 2008 WL 163552, at *4; see Tex. Code Crim. Proc. Ann. art. 59.05(b) ("The state has the burden of proving by a preponderance of the evidence that property is subject to forfeiture."). Thus, the State must prove, considering all the evidence, that it is more reasonably probable than not that the seized property was either intended for use in, or derived from, a violation of any one of the offenses enumerated in the forfeiture statute. Vafaiyan v. State, No. 2-09-098-CV, 2010 WL 3432819, at *7 (Tex. App.—Fort Worth Aug. 31, 2010, pet. denied) (mem. op.); see $9,050.00 in U.S. Currency v. State, 874 S.W.2d 158, 161 (Tex. App.—Houston [14th Dist.] 1994, writ denied). The State may prove the required substantial nexus through circumstantial evidence. $11,014.00, 820 S.W.2d at 785.
Chapter 59 provides an affirmative defense to forfeiture. See Tex. Code Crim. Proc. Ann. art. 59.02(c); Hopkins v. State, No. 2-02-130-CV, 2003 WL 329588, at *1-2 (Tex. App.—Fort Worth Feb. 13, 2003, no pet.) (mem. op.). Pursuant to article 59.02(c)(1), the trial court may not forfeit an owner's interest in property if the owner proves by a preponderance of the evidence that (1) the owner acquired and perfected an interest in the property before or during the act or omission giving rise to the forfeiture, and (2) the owner did not know or should not reasonably have known (a) of the act or omission giving rise to the forfeiture or (b) that it was likely to occur at or before the time of acquiring and perfecting the interest. Tex. Code Crim. Proc. Ann. art. 59.02(c)(1); Hopkins, 2003 WL 329588, at *1-2. After the State has met its burden by proving the property is contraband, the burden shifts to the party claiming the innocent-owner defense to prove it by a preponderance of the evidence. See $43,774.00 U.S. Currency v. State, 266 S.W.3d 178, 182 (Tex. App.—Texarkana 2008, pet. denied).
III. ANALYSIS
A. Legal Sufficiency of the Evidence to Support Contraband Finding
Appellant contends in her first and second issues that the State failed to prove that the Infiniti was contraband as defined by the statute. Specifically, she claims that no evidence connects the use of the car to any drug dealing, manufacturing, or packaging and that the mere possession of the methamphetamine while in the car does not show that the car itself was connected to that possession.
We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
Anything more than a scintilla of evidence is legally sufficient to support the finding. Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004) (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).
Here, the evidence showed that the methamphetamine in the backpack weighed fifteen grams. Possession of four or more but less than two hundred grams of methamphetamine is a second-degree felony. Tex. Health & Safety Code Ann. §§ 481.102, 481.115(d) (West 2010). Courts have held that a vehicle can be considered contraband when connected to a possession-only felony offense. See State v. One 2005 Hummer, No. 05-08-00353-CV, 2009 WL 2371078, at *2 (Tex. App.—Dallas Aug. 4, 2009, no pet.) (mem. op.); 1991 Nissan Pickup v. State, 896 S.W.2d 344, 344-45 (Tex. App.—Eastland 1995, no writ); see also State v. One 1992 Ford Explorer, No. 05-97-01023-CV, 2000 WL 225628, at *2 (Tex. App.—Dallas Feb. 29, 2000, pet. denied) (not designated for publication). In each of these cases, the courts held that by driving a vehicle while in possession of a felony weight of a controlled substance, the driver necessarily used the vehicle to facilitate the possession, thus establishing the required statutory nexus. See One 2005 Hummer, 2009 WL 2371078, at *2; 1991 Nissan Pickup, 896 S.W.2d at 344-45; see also One 1992 Ford Explorer, 2000 WL 225628, at *2.
Appellant argues that "the only offense that was arguably established on the night of the traffic stop was the passenger's possession of narcotics." But chapter 59 "does not require any proof that a person committed a crime—it only requires that the state prove by a preponderance of the evidence that the property is contraband." One (1) 2004 Lincoln Navigator, 2016 WL 3212490, at *6.
Appellant points out that the indictment "accusing [her] of possession" was no-billed by a grand jury and was dismissed by the State. However, the indictment alleged that appellant possessed the methamphetamine with the intent to deliver, which requires additional elements of proof. See Tex. Health & Safety Code Ann. § 481.002(8), (38) (West Supp. 2016), § 481.112 (West 2015).
Officer Lindsey testified that appellant seemed to take the exit abruptly as if she had not planned to do so. Appellant told him she was driving to North Richland Hills from Chilicothe but that she was going to stop to see her brother, who lived on University Drive in Wichita Falls. According to Officer Lindsey, the direction appellant was turning would have taken her on a very indirect route to University Drive from Highway 287. Officer Lindsey described appellant's nervousness as extreme.
Officer Rodney Burchett, who had been assigned to the organized crime narcotics unit for the last nine years and had worked over 100 narcotics-related cases, testified that containers with false bottoms—such as the one found in the car—were used in methamphetamine trafficking to conceal the drugs. Additionally, he had seen notebooks like the ones found in the Infiniti before; in his opinion, the notations in the notebooks referred to drug transactions. Although appellant testified that not all of the handwriting in the notebooks was hers, she said that the entries were for massages she gave and that the weights and measurements described jewelry that she had sold. However, she could not explain why one of the entries would have showed that someone owed her $2,400. Finally, the trial court admitted two prior convictions of appellant's for possession of a controlled substance.
Appellant was self-employed as a traveling massage therapist and sold gold and silver jewelry.
Based on the foregoing, we hold that the evidence was legally sufficient to show by a preponderance of the evidence that appellant used the car in possessing fifteen grams of methamphetamine. See One (1) 2004 Lincoln Navigator, 2016 WL 3212490, at *6; One 2005 Hummer, 2009 WL 2371078, at *2; 1991 Nissan Pickup, 896 S.W.2d at 344-45; see also Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) (listing various factors courts consider in determining whether person has sufficient affirmative links to drugs to prove possession-related offenses); One 1992 Ford Explorer, 2000 WL 225628, at *2. Because the evidence is legally sufficient to show that the Infiniti was contraband under article 59.01(2)(B)(i), we overrule appellant's first and second issues.
B. Innocent-Owner Affirmative Defense
In her third issue, appellant contends that the trial court's rejection of her innocent-owner affirmative defense was against the great weight and preponderance of the evidence. The State contends that she failed to plead this defense and that the issue was not tried by consent.
Generally, an affirmative defense must be pled in a responsive pleading, or the defense is waived. See Tex. R. Civ. P. 94; MAN Engines & Components, Inc. v. Shows, 434 S.W.3d 132, 136-37 (Tex. 2014); Alexander v. Kent, 480 S.W.3d 676, 701 (Tex. App.—Fort Worth 2015, no pet.). "To determine whether an issue was tried by consent, the reviewing court must examine the record, not for evidence of the issue, but rather for evidence of trial of the issue." Emerson Elec. Co. v. Am. Permanent Ware Co., 201 S.W.3d 301, 309 (Tex. App.—Dallas 2006, no pet.). Trial by consent is reserved for exceptional cases. Hartford Fire Ins. Co. v. C. Springs 300, Ltd., 287 S.W.3d 771, 779-80 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Consent may be found only when evidence regarding a party's unpled 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 re A.B.H., 266 S.W.3d 596, 600 (Tex. App.—Fort Worth 2008, no pet.) (op. on reh'g).
Although appellant's ownership of the car was not disputed, the State presented evidence that she had owned the car since at least January 2013. Appellant also denied knowing that there had been methamphetamine in her car or that officers had even found methamphetamine in her car. However, this same evidence was relevant to the issue of whether the Infiniti was contraband. Nothing in the record indicates that the parties understood that the evidence of ownership and of appellant's knowledge of the presence of the methamphetamine was being admitted with regard to the innocent-owner affirmative defense. When evidence relevant to both a pled and an unpled issue has been admitted without objection, the doctrine of trial by consent should generally not be applied. Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 281 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). Because appellant failed to plead this affirmative defense and it was not tried by consent, we conclude that she waived it.See Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 851 (Tex. App.—Dallas 2005 pet. denied) ("If an affirmative defense is not pleaded or tried by consent, it is waived, and the trial court has no authority to make a fact finding on that issue."). We overrule appellant's third issue.
Even if appellant had not waived her affirmative defense, the evidence was nevertheless factually sufficient to support the trial court's adverse ruling. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) ("When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence."). --------
IV. CONCLUSION
Having overruled appellant's three issues, we affirm the trial court's judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE PANEL: GARDNER, GABRIEL, and SUDDERTH, JJ. DELIVERED: August 31, 2016