1990 Z71 Chevrolet Extended Cab Pickup VIN 2GCEK19K7L-1224899, LIC. 9919WB v. State ( 2002 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

1990 Z71 CHEVROLET EXTENDED CAB        )

PICKUP VIN #2GCEK19K7L1224899,             )

LIC. #9919WB,                                                    )     No.  08-01-00304-CV

                                                                              )

Appellant,                          )                 Appeal from the

                                                                              )

v.                                                                           )     143rd District Court

                                                                              )

THE STATE OF TEXAS,                                     )     of Reeves County, Texas

                                                                              )

Appellee.                           )     (TC# 00-07-16769-CVR)

                                                                              )

                                                                              )

O P I N I O N

Ralph Muniz appeals from the trial court=s order to forfeit the 1990 Z71 Chevrolet Extended Cab Pickup VIN #2GCEK19K7L1224899, LIC. #9919WB (Athe truck@).  Two issues are presented on appeal:  (1) the trial court erred in granting forfeiture against an innocent owner; and (2) the evidence is legally and factually insufficient.

Ralph Muniz is the registered owner of the truck in question, but he lent the truck to his uncle Antonio Lujan Muniz (ATony@) for his use, since Tony=s vehicle had problems.  From before January 2000 and up to July 7, 2000, Tony used the truck, putting the insurance in his name and paying for its repairs.

On January 12, 2000, Narcotics Investigator Paul Deishler set up surveillance over a mobile home.  A blue Z71 truck, license # 991-9WB, pulled up to the mobile home then departed.  The same truck was stopped for a traffic violation by Patrol Officer Juan Vasquez a short while later.  Inside the truck were Joel Muniz and Benjamin Muniz, as well as some cocaine in a white baggy on the floor of the truck.  Investigator Deishler said $10,000 was found on Joel, which was forfeited.  Joel was convicted in federal court of possession of cocaine with intent to distribute.  Although the truck was impounded at the time, it was later released to Tony, Joel and Benjamin=s brother, in April or May 2000.  

The truck, Tony, and Benjamin were again involved in a drug-related investigation at a carwash on July 7, 2000.  While executing a search warrant, a sheriff=s deputy discovered inside the building a white powder that field-tested positive for cocaine, cash, and material for packaging cocaine.  Another sheriff=s deputy with a narcotics canine searched the truck parked on the premises and found traces of powder around the seat, which field-tested positive for cocaine.  As a result of the search, Tony, the owner of the carwash, was arrested for possession of cocaine with intent to deliver and pleaded guilty to the charge.

In the first issue, Ralph complains the trial court forfeited the truck against an innocent owner.

A party must plead an affirmative defense in the pleadings. Tex.R.Civ.P. 94.  However, even when the defendant did not specifically plead a affirmative defense, the Texas Supreme Court has recognized exceptions for the defenses of parental immunity and illegality, if the plaintiff anticipated the defense in its pleading and the defense was established at trial as a matter of law. Shoemaker v. Fogel, Ltd., 826 S.W.2d 933, 937 (Tex. 1992); Phillips v. Phillips, 820 S.W.2d 785, 789 (Tex. 1991).  The defense of Ainnocent owner@ against forfeiture in Article 59.02(c) of the Code of Criminal Procedure is an affirmative defense.  Tex.Code Crim.Proc.Ann. art. 59.02(a), (c)(Vernon Pamph. 2002); Bochas v. State, 951 S.W.2d 64, 68 (Tex.App.--Corpus Christi 1997, pet. denied).

Tony Muniz and Ralph Muniz never pleaded the affirmative defense of Ainnocent owner@ to the trial court.  The State=s notice of seizure and forfeiture did not anticipate the defense, and the State objected to Ralph Muniz presenting the defense.  Since the defense was never pled and the issue was not tried by consent, Ralph has waived the issue.  We overrule the first issue.  

In the second issue, Ralph challenges the sufficiency of the evidence to uphold the judgment of forfeiture. 

When an appellant brings a Ano evidence@ or legal sufficiency challenge, this Court will consider only the evidence tending to support the trial court=s judgment.  Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).  If more than a scintilla of evidence exists, the no evidence challenge fails.  $47,200.00 U.S. Currency v. State, 883 S.W.2d 302, 306 (Tex.App.--El Paso 1994, writ denied).  Evidence is Ano more than a scintilla@ 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.  Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).  Evidence is factually insufficient to uphold the verdict if the finding is so against the great weight and preponderance of all of the evidence as to be manifestly unjust.  In re King=s Estate, 244 S.W.2d 660, 661 (Tex. 1951).  It is not our province to interfere with the fact finder=s resolution of the conflicts in the evidence or to weigh the credibility of the witnesses and their testimony.  Reynolds v. Kessler, 669 S.W.2d 801, 807 (Tex.App.--El Paso 1984, no writ).

Property may be subject to seizure and forfeiture if it is shown to be contraband.  Tex.Code Crim.Proc.Ann. art. 59.02(a). Contraband is property used or intended to be used in the commission of crimes described in Article 59.01(2) of the Texas Code of Criminal Procedure, including drug-related offenses under Chapter 481 of the Texas Health and Safety Code.  Tex.Code Crim.Proc.Ann. art. 59.01(2); Tex.Health&Safety Code Ann. ' 481.002 et seq. (Vernon Pamph. 2002).  The State must prove that property is contraband by a preponderance of the evidence.  Tex.Code Crim.Proc.Ann. art. 59.05(b).  The proof may be direct or circumstantial.  State v. $11,014.00, 820 S.W.2d 783, 785 (Tex. 1991).

The truck was used or intended to be used on two different dates in the commission of possession of cocaine with intent to deliver, a crime described in Article 59.01(2) of the Texas Code of Criminal Procedure.  See Tex.Code Crim.Proc.Ann. art. 59.01(2)(B)(i); Tex.Health&Safety Code Ann. '' 481.102(3)(D), 481.112, 481.115.  On January 12, 2000, cocaine was found inside the truck with Benjamin Muniz and Joel Muniz, who was arrested and convicted for possession of cocaine with intent to deliver.  Six months later on July 7, 2000, cocaine was found inside a building and the truck.  Again, Benjamin Muniz was involved and Antonio Muniz plead guilty to the charge of possession of cocaine with intent to deliver. 

There is more than a scintilla of evidence to support the finding. Furthermore, the finding is also not so against the great weight and preponderance of all of the evidence as to be manifestly unjust.  The trial court did not err in finding that the truck was contraband and thus subject to forfeiture.  We overrule the second issue.

The judgment of the trial court is affirmed.

June 20, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

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