Approximately $31,421.00 v. State ( 2015 )


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  • Reversed and Rendered in Part, Reversed and Remanded in Part, and
    Majority and Concurring Opinions filed November 24, 2015.
    In The
    Fourteenth Court of Appeals
    NO. 14-14-00385-CV
    APPROXIMATELY $31,421.00, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 157th District Court
    Harris County, Texas
    Trial Court Cause No. 2012-13933
    CONCURRING OPINION
    Under the applicable standard of review and the charge submitted to the
    jury, the trial evidence is legally insufficient to support the jury’s finding that the
    money seized from the claimant is contraband. Therefore, the proper course is to
    reverse the forfeiture judgment, render judgment ordering the State to return the
    seized property, and remand for further proceedings. Because the majority reaches
    this result, I join in the court’s judgment, but I respectfully decline to join the
    majority opinion. My analysis is narrower.
    In his second issue, claimant Fredi Azuara Enriquez argues that the trial
    evidence is legally insufficient to support the jury’s finding that the money seized
    from him is contraband. The State did not object to this part of the jury charge,
    and this court measures the sufficiency of the evidence under the charge given,
    even if it does not correctly state the law.1
    Under the charge given, the money is contraband if it was used or intended
    to be used in the commission of one of the following felony offenses or if the
    money was the proceeds gained or acquired from the commission of one of these
    offenses:
    (1)         knowingly or intentionally delivering or possessing with intent to
    deliver a controlled substance, including cocaine, methamphetamine,
    and heroin, or
    (2)         knowingly or intentionally delivering more than one-fourth of an
    ounce of marijuana.
    Under the charge given, the money also is contraband if it was used or intended to
    be used in the commission of the felony offense of knowingly acquiring or
    maintaining an interest in, concealing, possessing, transferring, or transporting the
    proceeds of any offense classified as a felony in Texas or in the United States of
    America.
    At trial, Officer Piel testified that it was probable that the drug-detection dog
    alerted to Enriquez’s bag because the bag had been in recent proximity to a large
    1
    See Osterberg v. Peca, 
    12 S.W.3d 31
    , 55 (Tex. 2000) (holding that appellate court could not
    review the sufficiency of the evidence based on a particular legal standard because that standard
    was not submitted to the jury and no party objected to the charge on this ground or requested that
    the jury be charged using this standard); Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc., 
    201 S.W.3d 272
    , 283–86 (Tex. App.—Houston [14th Dist.] 2006, no. pet.) (reviewing sufficiency of
    evidence based on unobjected-to jury instruction and rejecting various arguments based on
    different legal standards).
    2
    amount of controlled substances. There is no evidence that the drug-detection dog
    alerted to the money or that the money was inside Enriquez’s bag when the dog
    alerted to the bag. Nothing in the record tells us what controlled substance the dog
    detected. The dog was trained to alert to heroin, cocaine, methamphetamines, and
    marijuana. Presuming that the evidence is legally sufficient to support a finding
    that the money had recently been near a large amount of controlled substances, the
    evidence is still lacking because the large amount of controlled substances may
    have been marijuana being used in a criminal enterprise in which the marijuana
    was delivered in amounts of less than one-fourth of an ounce, which would not
    constitute a felony offense.
    Considering the evidence in the light most favorable to the challenged
    finding, indulging every reasonable inference that would support it, crediting
    favorable evidence if reasonable jurors could, and disregarding contrary evidence
    unless reasonable jurors could not, the trial evidence would not enable reasonable
    and fair-minded people to find that the money is contraband under the charge
    submitted to the jury.2 Therefore, the evidence is legally insufficient to support the
    jury’s finding that the seized money is contraband.
    /s/       Kem Thompson Frost
    Chief Justice
    Panel consists of Chief Justice Frost and Justices Jamison and Busby (Jamison, J.,
    majority).
    2
    See City of Keller v. Wilson, 
    168 S.W.3d 802
    , 823, 827 (Tex. 2005).
    3
    

Document Info

Docket Number: 14-14-00385-CV

Filed Date: 11/24/2015

Precedential Status: Precedential

Modified Date: 9/29/2016