Manuel Cardenas v. State ( 2012 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00212-CV
ONE (1) 2002 CADILLAC DEVILLE, VIN 1G6KD54Y42U228530,
Appellant
v.
The STATE of Texas,
Appellee
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2011-CI-04965
Honorable Richard Price, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Karen Angelini, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: December 19, 2012
REVERSED AND REMANDED
Appellant Manuel Cardenas brings this appeal from the trial court’s order granting
summary judgment for the State in a forfeiture proceeding. On appeal, Cardenas contends the
trial court erred in granting summary judgment because: (1) he was denied the opportunity to be
present at the summary judgment hearing; and (2) there was insufficient evidence to demonstrate
the property forfeited, a 2002 Cadillac Deville, was contraband used or derived from narcotics
trafficking and subject to forfeiture. We hold the State’s evidence did not establish, as a matter
04-12-00212-CV
of law, a reasonable belief that a substantial nexus exists between the vehicle forfeited and
narcotics trafficking. We reverse and remand.
BACKGROUND
The State brought a forfeiture action against Sammy Barraza, Melissa Barraza, and
Cardenas 1 for U.S. currency in the amount of $365.96, a 2002 Cadillac Deville, and other
property seized by Deputy Sheriff Bryan Smith pursuant to a narcotics search warrant executed
on the Barraza residence.
In his affidavit, Deputy Smith stated he executed a narcotics search warrant on the
residence of Sammy and Melissa Barraza, where he found, among other things: a clear plastic
bag containing marijuana, packaging material, a digital scale, and firearms. Deputy Smith
asserted his belief that Sammy and Melissa Barraza are drug dealers who receive money and
other items of value in exchange for narcotics. Deputy Smith stated he also seized U.S.
currency, jewelry, consumer electronics, and a 2002 Cadillac Deville, which was owned by
Cardenas, 2 because he believed these items were proceeds of narcotics trafficking.
The State filed its original notice of intended forfeiture and filed discovery requests,
including requests for admissions directed to Sammy and Melissa Barraza, but not to Cardenas.
The State then filed a motion for summary judgment as to the 2002 Cadillac Deville, which was
owned by Cardenas. In support of its motion, the State relied on Deputy Smith’s affidavit and on
the Barrazas’s deemed admissions. After a hearing on the motion, the trial court granted
summary judgment, ordering Cardenas to forfeit any interest in the seized vehicle. Cardenas
perfected this appeal.
1
The record is unclear about the relationship, if any, between the Barrazas and Cardenas. However, the record
shows Cardenas is the owner of the vehicle seized during the narcotics search.
2
Cardenas was not present at the residence at the time of the search. There is no indication in the record that he was
ever charged with any crime connected to the search.
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ANALYSIS
Cardenas challenges the trial court’s order granting summary judgment and forfeiting his
interest in the 2002 Cadillac Deville. Cardenas argues the trial court erred in granting summary
judgment because: (1) he was denied the opportunity to be present at the summary judgment
hearing; 3 and (2) there was insufficient evidence to demonstrate the vehicle was contraband
subject to forfeiture.
Standard of Review
Summary Judgment
We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010); $24,156.00 in U.S. Currency v. State, 247 S.W.3d 739, 742 (Tex.
App.—Texarkana 2008, no pet.). A traditional motion for summary judgment is granted only
when the movant establishes there are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law. Lesieur v. Fryar, 325 S.W.3d 242, 246 (Tex. App.—San
Antonio 2010, pet denied) (citing Browning v. Prostok, 165 S.W.3d 336, 244 (Tex. 2005)). On
review, we take evidence favorable to the nonmovant as true and indulge every reasonable
inference from the evidence in its favor. Lesieur, 325 S.W.3d at 246 (citing Am. Tobacco Co. v.
Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)). In deciding whether there is a material fact issue
precluding summary judgment, all conflicts in the evidence are disregarded and evidence
favorable to the nonmovant is accepted as true. Cole v. Johnson, 157 S.W.3d 856, 859 (Tex.
App.—Fort Worth 2005, no pet.) (citing Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d
170, 173 (Tex. 1995)).
3
Cardenas contends he was not present at the summary judgment hearing. While the record is unclear on this point,
given our holding with regard to Cardenas’s second point of error, we need not consider his first point of error
relating to his attendance at the summary judgment hearing.
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When a plaintiff moves for summary judgment on its own cause of action, it must
establish each element of its claim as a matter of law in order to prove it is entitled to summary
judgment. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). Once a movant
establishes its right to summary judgment, the burden shifts, and the nonmovant must produce
some evidence raising a genuine issue of material fact. Cole, 157 S.W.3d at 860; Romo v. Tex.
Dep’t of Transp., 48 S.W.3d 265, 269 (Tex. App.—San Antonio 2001, no pet.).
Applicable Law
Forfeiture
Chapter 59 of the Texas Code of Criminal Procedure prescribes the procedures governing
civil forfeiture, which is an in rem proceeding against contraband. State v. Silver Chevrolet
Pickup VIN 1GCEC14T7YE257128 Tag No. 3TMX16, 140 S.W.3d 691, 692–93 (Tex. 2004);
Hardy v. State, 102 S.W.3d 123, 126–27 (Tex. 2003). Under Chapter 59 of the Texas Code of
Criminal Procedure, property, including currency, is subject to seizure and forfeiture if it is
found to be contraband. TEX. CODE CRIM. PROC. ANN. art. 59.02(a) (West Supp. 2012).
Contraband is property used or intended to be used in the commission of certain felonies, or
proceeds derived from those felonies. TEX. CODE CRIM. PROC. ANN. art. 59.01(2)(A)-(D); Silver
Chevrolet Pickup, 140 S.W.3d at 692.
In forfeiture proceedings, the State must show probable cause for seizing a person’s
property. TEX. CONST. art. I, § 9; State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991). To
show probable cause, the State must establish a reasonable belief that a substantial nexus or
connection exists between the property to be forfeited and the statutorily defined criminal
activity. $11,014.00, 820 S.W.2d at 785; $27,877.00 Current Money of U.S. v. State, 331
S.W.3d 110, 114 (Tex. App.—Fort Worth 2010, pet. denied). Thus, the State must prove that it
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is more reasonably probable than not that the seized property was either intended for use in, or
derived from, a violation of the offenses enumerated in the forfeiture statute. $27,877.00
Current Money of U.S., 331 S.W.3d at 114 (citing State v. Five Thousand Five Hundred Dollars
in U.S. Currency, 296 S.W.3d 696, 701 (Tex. App.—El Paso 2009, no pet.)).
The State may prove the required substantial nexus through circumstantial evidence. Id.
(citing $11,014.00, 820 S.W.2d at 785). When relying on circumstantial evidence, the State
must offer evidence that raises more than a mere suspicion regarding the source of the property
or money. Id.
Deemed Admissions
A party may serve on another party—no later than thirty days before the end of the
discovery period—written requests that the other party admit the truth of any matter within the
scope of discovery, including statements of opinion or a fact or of the application of the law to
fact. See TEX. R. CIV. P. 198.1. When a party does not return answers to a request for
admissions within thirty days, the matters in the request are deemed admitted against that party.
Wal–Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 355 (Tex. 1998); see also TEX. R. CIV. P.
198.2(c) (“If a response is not timely served, the request is considered admitted without the
necessity of a court order.”). A matter admitted under this rule is conclusively established as to
the party making the admission unless the court permits the party to withdraw or amend the
admission. State v. Carrillo, 885 S.W.2d 212, 214 (Tex. App.—San Antonio 2004, no pet.)
(emphasis added); TEX. R. CIV. P. 198.3.
Admissions of fact on file at the time of a summary judgment hearing are proper
summary judgment proof and will support a motion for summary judgment. Acevedo v. Comm’n
for Lawyer Discipline, 131 S.W.3d 99, 105 (Tex. App.—San Antonio 2004, pet. denied). A
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party who fails to expressly present to the trial court any written response in opposition to a
motion for summary judgment based on deemed admissions waives its right to raise any
arguments or issues post-judgment. Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797
(Tex. 2008). Issues not expressly presented to the trial court by written notice, answer, or other
response shall not be considered on appeal as grounds for reversal. Id.
Application
In his second point of error, Cardenas contends there was insufficient evidence to
demonstrate the vehicle was contraband subject to forfeiture. 4 The State had the burden of
proving, as matter of law, that it was more reasonably probable than not that the seized property
was either intended for use in, or derived from, a violation of the offenses enumerated in the
forfeiture statute. See $11,014.00, 820 S.W.2d at 785. The State provided the affidavit of Bryan
Smith, the deputy sheriff who executed the narcotics search on the Barraza residence. In his
affidavit, Smith swore Sammy Barraza showed him the location of a bag with marijuana, as well
as packaging material, a digital scale, and eight firearms located throughout the house. Smith
also found $357.96 in U.S. currency in Sammy Barraza’s pocket. Smith explained he believed
the Barrazas acquired valuable items with the proceeds of narcotics trafficking, and this belief
led him to seize, among other things, the 2002 Cadillac Deville parked outside the Barraza
residence.
However, the affidavit provides no evidence the vehicle was used or intended to be used
in the commission of narcotics trafficking, or that it was proceeds derived from such felony. See
Silver Chevrolet Pickup VIN 1GCEC14T7YE257128, 140 S.W.3d at 692; see also TEX. CODE
CRIM. PROC. ANN. art. 59.01(2)(A)-(D). There is no evidence in the record connecting the
4
Although Cardenas presents his second point of error as a sufficiency challenge, this court must review the
evidence under the standard of review applicable to appeals from summary judgments.
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Barrazas to the vehicle, other than the fact it was parked outside their home. We hold that
simply because the vehicle was parked in or near a residence containing narcotics does not
establish the nexus between the vehicle and the sale or distribution of narcotics. See $7,058.84
in U.S. Currency v. State, 30 S.W.3d 580, 587 (Tex. App.—Texarkana 2000, no pet.) (noting fact
that money is found at or near controlled substance does not establish by itself nexus between
money and sale
or distribution of a controlled substance).
Furthermore, in reviewing other forfeiture cases and the evidence used to establish a
nexus between the property forfeited and drug trafficking, this court finds no evidence of the
kind that reflects the vehicle may have been connected to the Barraza’s alleged narcotics
trafficking. See, e.g., $43,774.00 U.S. Currency v. State, 266 S.W.3d 178, 186 (Tex. App.—
Texarkana 2008, pet. denied) (noting secret compartments in vehicle forfeited and alerted by
drug dog were evidence supporting nexus between vehicle and drug trafficking). Thus, we hold
the deputy’s affidavit does not, as a matter of law, establish a nexus between the vehicle and
narcotics trafficking. See Rhone-Poulenc, Inc., 997 S.W.2d at 223 (noting plaintiff moving for
summary judgment must establish each element of claim as a matter of law in order to be entitled
to summary judgment); $11,014.00, 820 S.W.2d at 785 (stating State must establish reasonable
belief that substantial nexus or connection exists between property to be forfeited and statutorily
defined criminal activity).
The State also relied on requests for admissions served on the Barrazas as summary
judgment evidence to establish the car was contraband. Those requests for admissions asked the
Barrazas to admit, concerning the 2002 Cadillac Deville, that: (1) it was subject to seizure and
forfeiture; (2) it was in their possession and under their control; (3) it was proceeds gained from
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the commission of a felony under Texas Health and Safety Code sections 481.120 and 481.121
and a felony under Texas Penal Code section 34.02; and (4) the vehicle was acquired with
proceeds gained from the commission of a felony under Texas Health and Safety Code sections
481.120 and 481.121 and a felony under Texas Penal Code section 34.02. The Barrazas did not
respond to the request for admissions, and therefore, the requests were deemed admitted by the
Barrazas. See TEX. R. CIV. P. 198.2(c) (noting unanswered requests for admissions are
considered admitted without court order).
Although deemed admissions are competent summary judgment evidence, TEX. R. CIV.
P. 166a(c), Acevedo, 131 S.W.3d at 105, the admissions are only conclusively established as to
the party making the admission. Carrillo, 885 S.W.2d at 214. Therefore, the Barrazas’s
admissions are only conclusively established against them, not Cardenas; he was never served
with any requests for admissions. The State argues Cardenas did not object to the Barrazas’s
admissions by filing a controverting affidavit or any other competent summary judgment
evidence. However, the State fails to cite any authority, and we have found none, that requires a
party to object to another’s deemed admissions.
We recognize forfeiture law, as a civil matter, is subject to a lesser standard of proof. See
$43,774.00 U.S. Currency, 266 S.W.3d at 188. However, we hold the State’s evidence did not
meet this lesser standard of proof and raised only a mere suspicion that the vehicle was
contraband, and did not establish, as a matter of law, a reasonable belief that a substantial nexus
exists between the vehicle forfeited and the Barraza’s narcotics trafficking. 5 See $27,877.00
5
We recognize that under Article 59.02(h)(1) of the Texas Code of Criminal Procedure, property may not be
forfeited if the owner, at the forfeiture hearing, proves by a preponderance of the evidence that he was not a party to
the offense giving rise to the forfeiture and that the contraband was stolen, purchased with money stolen from the
owner, or used without the effective consent of the owner in the commission of the offense. TEX. CODE CRIM.
PROC. ANN. art. 59.02(h)(1) (West Supp. 2011). However, in the context of summary judgment, as in this case, it is
the State who has the burden to prove the nexus between the property and the offense as matter of law before the
property owner has any burden of proof.
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Current Money of U.S., 331 S.W.3d at 114; $11,014.00, 820 S.W.2d at 785. Accordingly, we
sustain Cardenas’s second point of error and reverse the trial court’s judgment.
CONCLUSION
We reverse the trial court’s summary judgment forfeiting Cardenas’s interest in the 2002
Cadillac Deville and remand for further proceedings consistent with this court’s opinion. 6
Marialyn Barnard, Justice
6
We note that in our judgment we assess costs against the State of Texas. See Tex. Att’y Gen. Op. No. DM-459
(1997) (stating that in absence of provision exempting State from liability for costs in particular case, State, like
other parties, is liable for costs).
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