1-Man's Rolex Watch, Yellow in Color W/Yellow Bezel v. State ( 2006 )

NO. 07-05-0165-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 18, 2006
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IN RE ONE MAN’S ROLEX WATCH YELLOW GOLD,
ONE YELLOW GOLD BRACELET, and ONE YELLOW GOLD MAN’S RING
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FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. 90,912-B; HON. JOHN BOARD, PRESIDING
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Opinion
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Before QUINN, C.J. and REAVIS and CAMPBELL, JJ.
Omar Mendoza appeals from a post-answer default judgment forfeiting his interest
in a Rolex watch, gold bracelet, and gold ring. The forfeiture occurred under the auspices
of Chapter 59 of the Code of Criminal Procedure. Mendoza contends that the default
judgment should be reversed because he 1) was afforded no notice or was denied
sufficient notice of the trial and 2) was denied the ability to obtain a record of the forfeiture
hearing since the proceeding was not memorialized. We address only the second issue
for it is dispositive and, upon addressing it, reverse the judgment.
Issue Two – No Recording of the Trial
A forfeiture proceeding is civil in nature. Thus, the procedures to be followed are
those applicable to other civil suits in general. TEX . CODE CRIM . PROC . ANN . art. 59.05(b)
(Vernon Supp. 2005) (stating that “[a]ll cases under this chapter shall proceed to trial in the
same manner as in other civil cases”). Furthermore, statute places upon the State the
burden of proving, by a preponderance of the evidence, that the item being forfeited is
subject to forfeiture. Id.
Next, authority holds that the failure to have a court reporter transcribe an
evidentiary proceeding when the appellant and his counsel are absent from it constitutes
reversible error. Sharif v. Par Tech, Inc., 135 S.W.3d 869, 873 (Tex. App.–Houston [1st
Dist.] 2004, no pet.); Chase Bank of Texas, N.A. v. Harris County Water Control & Improv.
Dist., 36 S.W.3d 654, 655-56 (Tex. App.–Houston [1st Dist.] 2000, no pet.); see Rogers v.
Rogers, 561 S.W.2d 172, 173-74 (Tex. 1978) (holding that if an appellant “exercises due
diligence and through no fault of his own is unable to obtain a proper record of the
evidence introduced, this may require a new trial where his right to have the case reviewed
can be preserved in no other way”).
Here, the clerk’s record discloses that the State sued to forfeit the property
mentioned earlier. Mendoza was joined as a party and filed a verified answer denying his
opponent’s purported right to relief. When the proceeding ultimately came for trial, neither
Mendoza nor his attorney of record was present. Thereafter, the trial court rendered the
post-answer default judgment at issue. That the trial occurred on the designated date is
undisputed, as is the fact that a court reporter transcribed neither the evidence presented
nor the argument proffered at the hearing. These circumstances evince reversible error
of the kind described in Rogers, Sharif, and Chase Bank.
Additionally, we reject the State’s contention that no error arose because the trial
court was able to grant judgment based solely on the State’s pleadings. A post-answer
default judgment may not be entered based solely on the pleadings; rather, the plaintiff
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must offer evidence and prove his claim. In re K.B.A., 145 S.W.3d 685, 690 (Tex.
App.–Fort Worth 2004, no pet.); Sharif v. Par Tech, Inc., 135 S.W.3d at 873. And, to the
extent that the trial court insinuated in its judgment that it received evidence at the trial, the
proceeding was evidentiary in nature and controlled by Rogers, Sharif, and Chase Bank.
We also reject the contention that Rogers and its progeny is not controlling because
Mendoza failed to urge an issue on appeal questioning the sufficiency of the evidence.
Without a record of the evidence, one can hardly claim with any semblance of authority
that the evidence was insufficient. And, we opt not to require from Mendoza that which
he cannot do (i.e. review the record and attack the sufficiency of the evidence) as a
condition to preserving his complaint. Gilley v. Anthony, 404 S.W.2d 60, 64 (Tex. Civ.
App.–Dallas 1966, no writ) (holding that the law will not require one to do the fruitless).
Accordingly, we sustain issue two, reverse the judgment, and remand the cause for
new trial.
Brian Quinn
Chief Justice
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