State v. Francisco Javier Narvaez and Amalia Narvaez ( 2000 )

NUMBER 13-98-116-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

THE STATE OF TEXAS,

Appellant,

v.

FRANCISCO JAVIER NARVAEZ

AND AMALIA NARVAEZ, Appellees.

___________________________________________________________________

On appeal from the 138th District Court of Cameron County, Texas.

___________________________________________________________________

O P I N I O N

Before Justices Dorsey, Yañez, and Chavez Opinion by Justice Yañez

The State brings this appeal from a judgment dismissing the State's second amended original petition and notice of seizure and intended forfeiture. The State appeals the dismissal in two issues.⁽¹⁾ We affirm.

On October 4, 1989, agents from the Texas Department of Public Safety and the Harlingen, Texas, Police Department raided a house in Harlingen, Texas, and seized approximately nine tons of cocaine. Several people were arrested as a result of the raid, including Francisco Javier Narvaez, who was ultimately tried in federal court and found guilty on sixteen charges involving drug trafficking. At Narvaez's trial, the federal government also sought forfeiture, under federal criminal law, of three pieces of property, including the 2.61 acre tract of land which is the subject of this appeal.⁽²⁾ The federal jury returned a verdict in favor of forfeiture on two of the pieces of property, but did not allow forfeiture of the 2.61 acres. The 2.61 acres in question will be referred to as "the property" throughout this opinion.

On August 1, 1991, officer Leonel Silva of the Harlingen Police Department, swore out an affidavit to obtain a warrant to search, and seize, the property. On August 29, 1991, the State of Texas, through the Cameron County Attorney, filed a petition and notice of forfeiture naming Francisco and Amalia Narvaez as defendants. See Tex. Code Crim . Proc. Ann. Art. 59.01 (Vernon Supp. 2000). Following a pretrial hearing, the trial court dismissed the case as being barred by res judicata and collateral estoppel. The trial court held that the State's civil forfeiture suit was barred as a result of the unsuccessful forfeiture attempt at Francisco Narvaez's criminal trial in federal court. The case was appealed to this Court. State v. Narvaez, 900 S.W.2d 846 (Tex. App.--Corpus Christi 1995, no writ). Because "a prior adjudication of an issue in a criminal matter is not res judicata or estoppel by judgment to a subsequent civil action involving that same fact issue," this Court reversed and remanded the case to the trial court. Id. at 847.

On November 24, 1997, there was a pretrial hearing on several motions filed by the Narvaezes in their answer to the State's second amended petition. Included was a motion to dismiss for lack of jurisdiction, a motion to dismiss for failure to state a cause of action, and a motion to set aside the search warrant. Following the hearing the trial court notified the parties, by a letter dated January 6, 1998, that it would grant judgment for the Narvaezes. The letter directed the Narvaezes to prepare a judgment.

On January 27, 1998, the court signed the judgment, apparently as prepared by the Narvaezes' counsel. The judgment is poorly worded, and reads as though it was granted following a bench trial on the merits of the case.

The State filed a motion to vacate the judgment and requested findings of fact. The court denied the motion to vacate and refused to issue findings of fact on February 19, 1998. The State filed a notice of appeal on February 26, 1998. That same day the trial court signed another order denying the State's motion to vacate, but granting the request for findings of fact, which the court issued along with the order. By two issues, the State appeals the judgment of the trial.

In its first issue, the State argues that the court erred in signing a judgment holding that the State had failed to prove the property to be contraband because the State was not given adequate notice of trial, as required under the rules of civil procedure. Tex. R. Civ. P. 245. Under rule 245, the parties to a suit must be given "reasonable notice of not less than forty-five days . . . of a first setting for trial, or by agreement of the parties." Id.

The clerk's record for the hearing in question shows that it was understood, by the judge and both parties, to be a hearing on the Narvaezes' motions. The court's docket sheet shows that on October 28, 1997, a pretrial hearing was ordered, with the hearing to be held on November 24, 1997. The State did not complain to the trial court of any deficiency in notice as to the hearing. The hearing began with the State putting on witnesses to oppose the Narvaezes' motion to suppress the search and seizure warrant. Most of the record pertaining to the hearing involves examination and cross-examination of officer Silva about his affidavit, which was used to obtain the warrant to search and seize the property. Following the hearing that the court decided to dismiss the case. The court did not treat the hearing as a trial. The court heard testimony, and received into evidence, exhibits offered by the defense, including the warrant and the affidavit which was used to secure the warrant. A review of the record leads this Court to conclude that the trial court held a pre-trial hearing and determined, based on the evidence presented at the pretrial hearing, that the case should be dismissed. Because there was no trial, the State was not required to receive notice of a trial under the rules of civil procedure. The State's first issue is overruled.

The evidence presented at the hearing showed that officer Silva's affidavit was insufficient to establish probable cause necessary to support a warrant. In determining if the facts alleged in a probable cause affidavit are sufficient to support a warrant, the totality of the circumstances are considered. See Ramos v. State, 934 S.W.2d 358, 363 (Tex. Crim. App. 1996) (whether the facts alleged in a probable cause affidavit sufficiently support a search warrant is determined by examining the totality of the circumstances). Whether probable cause exists is determined by looking at the facts contained within the affidavit and the reasonable inferences which may be drawn from those facts. See Carroll v. State, 911 S.W.2d 210, 216 (Tex. App.--Austin 1995, no pet.). Probable cause for seizure of a person's property is a "reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute." $18,800 In U.S. Currency v. State, 961 S.W.2d 257, 260 (Tex. App.--Houston [1st Dist.] 1997, no writ).

In the present case, Silva's affidavit explains that nine tons of cocaine were seized at a "stash house"⁽³⁾ and that the drug traffickers established a business named "Harlingen Back-Hoe" as a front behind which to carry on their illegal trade. The affidavit stated that cocaine was stored at Harlingen Back-Hoe, before being shipped to Houston. The only connection between the drug trafficking and the property now in question was a ledger book, found at the stash house, that officer Silva stated would "indicate" telephone calls to the Narvaez home. Although the affidavit states that it is the belief of the affiant that the property is contraband under article 59.01 of the Texas Code of Criminal Procedure, there are no facts in the affidavit to support that conclusion.

The drug seizure which led to the State's seizure of the property occurred on October 4, 1989. Article 59.01 of the code of criminal procedure did not take effect until October 18, 1989. Act of August 2, 1989, 71st Leg., 1st C.S., ch. 12, 1989 (amended 1999) (current version at Tex. Code Crim. Proc. Ann. art. 59.01 (Vernon Supp. 2000)). The Narvaezes argue that the property is not subject to seizure because if it is contraband, it achieved the status as contraband before the forfeiture provision took effect. We do not reach this issue, because we find that the affidavit fails to allege facts sufficient to show that the property was contraband under article 59.01.

Article 59.01 originally defined property as contraband if it was used in the commission of a variety of felonies, or acquired with proceeds gained from those felonies. Id. The current version expands the list of crimes which can be used to define property as contraband. See Tex. Code Crim Proc. Ann. art. 59.01 (Vernon Supp. 2000). The affidavit used to obtain the warrant does not allege that the property was used in any crime at all, nor does it allege any facts to support a claim that the property was acquired with proceeds from any of the crimes required under the code of criminal procedure. See Id. The affidavit does not support the seizure warrant, and the judge was correct in dismissing this case.

The State's second issue challenges the trial court's findings of fact and conclusions of law.⁽⁴⁾ The State first argues that the trial court should not have issued findings of fact at all, citing as support for the argument, the Texas Supreme Court's decision in IKB Industries (Nigeria) Ltd. B. Pro-Line Crop., 938 S.W.2d 440 (Tex. 1997). The proceedings listed in IKB in which findings of fact should not be filed are all proceedings in which the court rules without considering any evidence. Id. at 443. In the instant case, the trial court did consider evidence, specifically the search and seizure warrant and the supporting affidavit. Findings of fact were appropriate in this case. See Zimmerman v. Robinson, 862 S.W.2d 162, 164 (Tex. App.--Amarillo 1993, no writ) (holding that trial court has a duty to file requested findings of fact and conclusions of law where there has been an evidentiary hearing to the court).

The State next argues that the evidence is insufficient to support the trial court's findings. The standards for reviewing the legal and factual sufficiency of the evidence supporting the court's findings of fact are the same as the standards applied in reviewing the legal and factual sufficiency of the evidence supporting a jury's finding. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). A challenge to the factual sufficiency of the evidence will succeed "only if [the verdict] is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust." Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). A challenge to the legal sufficiency of the evidence will succeed only if there is no more than a mere scintilla of evidence. Merrell Dow Pharmaceuticals v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 53 U.S. 1119, 118 S. Ct. 1799, 140 L. Ed. 2d 939 (1998). In the instant case the evidence is both factually and legally sufficient to support the trail court's findings of fact and conclusions of law.

The trial court found that the affidavit used to secure the search and seizure warrant did not contain facts to support the warrant. We agree that Silva's affidavit, as discussed above, failed to allege facts to support the warrant. The trial court did not err in making this finding, nor did the court err in its conclusion of law that the warrant was issued without probable cause. These findings of fact and conclusions of law support the dismissal of the State's case. With the warrant declared invalid, there is no property to support this suit. The State's second issue is overruled.

The judgment of the trial court is AFFIRMED.

________________________

LINDA REYNA YAÑEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 24th day of August, 2000.

1. This is the second time this case has been dismissed by the trial court and appealed to this Court. State v. Narvaez, 900 S.W.2d 846 (Tex. App.--Corpus Christi 1995, no writ).

2. The 2.61 acre tract was bought by Amalia Narvaez in 1984, and has a house situated on it. Amalia Narvaez is the wife of Francisco Narvaez.

3. The "stash house" is not the house on the property at issue in this action.

4. The State's brief incorrectly describes the court's order as being the appellee's order, further stating that the trial court should not have "endorsed" the "appellees' order." When findings of fact are signed by a judge, they "become those of that judge regardless of who prepared or recommended them." Ikard v. Ikard, 819 S.W.2d 644, 651 (Tex. App.--El Paso 1991, no writ). It is standard practice for the prevailing party to draft findings of fact. Id.