$5,000 in U.S. Currency and Chris A. Anderson v. State ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00040-CV
$5,000 IN U.S. CURRENCY AND CHRIS A. ANDERSON,
Appellants
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 81438
MEMORANDUM OPINION
Chris Anderson appeals from a default judgment that granted the forfeiture of
$5,000 to the State of Texas. See TEX. CODE CRIM. PROC. ANN. Ch. 59 (West 2006).
Anderson complains that the trial court erred by granting the forfeiture, abused its
discretion by allowing evidence to be admitted that was found by an unlawful search
and seizure, and abused its discretion by not granting a continuance or allowing
Anderson to appear by telephone. Because we find no reversible error, we affirm the
judgment of the trial court.
Anderson was served with the petition seeking forfeiture of $5,000 that was
seized during a traffic stop in Ellis County, Texas. Anderson filed an answer with the
trial court but did not appear for trial. After a bench trial, the trial court granted the
State's petition and forfeited the $5,000 in question to the State.
Anderson has set forth six issues in his pro se brief; however, he did not provide
any argument or authorities to support issue four relating to whether the forfeiture was
lawful in the absence of evidence of drugs, drug paraphernalia, or a confession.
Anderson also did not provide any argument or authorities to support issue five
relating to whether law enforcement officers can search a closed container without a
warrant or consent. Anderson relies on his other issues to provide the argument for
issues four and five but does not address them further. We will overrule issues four
and five because they were inadequately briefed. See TEX. R. APP. P. 38.1(i).
Sufficiency of the Evidence
Although it is unclear from his brief, we will construe Anderson's first and
second issues to be complaints of the sufficiency of the evidence to support the
forfeiture. The State has addressed both legal and factual sufficiency in its brief;
therefore, we will analyze the record under both standards as well.
Standard of Review
Under civil preponderance-of-the-evidence standards, evidence is legally
insufficient only when (a) there is a complete absence of evidence of a vital fact, (b) the
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court is barred by rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than
a mere scintilla, or (d) the evidence establishes conclusively the opposite of the vital
fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005); Uniroyal Goodrich Tire Co. v.
Martinez, 977 S.W.2d 328, 334 (Tex. 1998). The final test for legal sufficiency is "whether
the evidence at trial would enable reasonable and fair-minded people to reach the
verdict under review." City of Keller, 168 S.W.3d at 827. In making this determination,
we credit favorable evidence if a reasonable fact-finder could credit it, and disregard
contrary evidence unless a reasonable fact-finder could not disregard it. Id. So long as
the evidence falls within the zone of reasonable disagreement, we may not substitute
our judgment for that of the fact-finder. Wilson, 168 S.W.3d at 822. The trier of fact is
the sole judge of the credibility of the witnesses and the weight to give their testimony.
Id. at 819. Although we consider the evidence in a light most favorable to the
challenged findings, indulging every reasonable inference that supports them, we may
not disregard evidence that allows only one inference. Id. at 822.
When considering a factual sufficiency challenge, we must consider and weigh
all of the evidence, not just that evidence which supports the verdict. Mar. Overseas
Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). We must take into account and weigh all
of the evidence and may set aside a verdict on the basis of factual insufficiency only if
the evidence is so weak or if the finding is so against the great weight and
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preponderance of the evidence that it is clearly wrong and unjust. Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam) (citing Pool v. Ford Motor Co., 715
S.W.2d 629, 635 (Tex. 1986)).
"Contraband" is property of any nature used in the commission of various
enumerated crimes, including any felony under Chapter 481 of the Texas Health and
Safety Code (the Texas Controlled Substances Act) or Chapter 34 of the Penal Code
(Money Laundering). TEX. CODE CRIM. PROC. ANN. art. 59.01(2). Contraband is subject
to seizure and forfeiture by the State. TEX. CODE CRIM. PROC. ANN. arts. 59.02(a),
59.03(a)—(b). Civil rules of pleading apply in forfeiture proceedings. See TEX. CODE
CRIM. PROC. ANN. art. 59.05(a). Forfeiture proceedings are tried in the same manner as
other civil cases, and the State has the burden to prove by a preponderance of the
evidence that the property in question is subject to forfeiture. TEX. CODE CRIM. PROC.
ANN. art. 59.05(b). The State also has the burden to show probable cause existed for
seizure of the property. $56,700 in U.S. Currency v. State, 730 S.W.2d 659, 661 (Tex. 1987)
(citing Tex. Const. art. I, § 9). Probable cause, in the context of civil forfeiture, is "a
reasonable belief that 'a substantial connection exists between the property to be
forfeited and the criminal activity defined by the statute.'" Id. (quoting United States v.
$364,960.00 in U.S. Currency, 661 F.2d 319, 323 (5th Cir. 1981)). However, the State does
not have to prove that a specific crime was committed. Spurs v. State, 850 S.W.2d 611,
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613 (Tex. App.—Tyler 1993, writ denied); $ 162,950 in Currency of the United States, 911
S.W.2d at 529.
Facts
Anderson was stopped because he was driving a vehicle that had a defective
license plate light at approximately 4:40 a.m. Sandra Borst was the owner of the vehicle
and was a passenger in the vehicle. At the scene, Anderson told the officer that they
were driving from Kansas City to Houston to visit family and friends; however, they
did not have luggage in the vehicle with them. Borst told the officer that they were
traveling to Dallas, although they were south of Dallas at that time.
Borst consented to a search of the vehicle. Anderson denied having substantial
sums of money in the car. The officer found three "novelty containers" in the car, or
containers that were labeled as cans of Barbasol shaving cream, Reddi Whip Whipped
Cream, and Planter's Peanuts. The containers had removable bottoms which could be
used to conceal or store small items. According to the officer's testimony, the containers
were of a type commonly used by drug dealers to secrete money or drugs. The peanut
container had $5,000 in it. The container was placed in an officer's vehicle. Another
officer testified that the area where Anderson was stopped is known for high drug
trafficking activity.
A drug dog was brought to the scene who alerted to the vehicle and the trunk.
The officers found a pipe under the passenger seat that had cocaine residue in it. No
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other illegal drugs or paraphernalia were found in the vehicle. Later at the DPS office,
the dog aggressively alerted to the container containing the currency after the three
containers were set out on the floor, which demonstrated that the dog smelled the odor
of an illegal narcotic.
A criminal history check showed that Anderson had been convicted for
possession with intent to distribute crack cocaine and his supervised release was
revoked for engaging in unlawful drug activity.
Later at the DPS office, Anderson claimed that he was traveling to Houston from
Kansas to purchase some used cars. However, when asked about where he was
planning to purchase the vehicles and how he intended to transport them back to
Kansas, Anderson told the interrogating officer that he had not thought about those
issues. Anderson further told the officer that he had check stubs that would show the
ownership of the $5,000; however, the officer testified that the stubs and the
documentation later provided by Anderson in his discovery responses did not explain
why he had $5,000 in his possession. Anderson had claimed that he paid his bills with a
check card through his bank.
Using the appropriate standards in our review of the record and the arguments
advanced by the parties, we find that the evidence was legally and factually sufficient to
support the judgment of forfeiture. We overrule issues one and two.
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Unlawful Search and Seizure
In his third issue, Anderson complains that the container in which the $5,000 in
question was found was found as a result of an unlawful search and seizure. The State
argues, and Anderson does not dispute that Borst gave the officer consent to search the
vehicle.
The standard for measuring the scope of consent under the Fourth Amendment
is that of "objective" reasonableness, i.e., what the typical reasonable person would have
understood by the exchange between the officer and the individual. See Florida v.
Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1804, 114 L. Ed. 2d 297 (1991); State v. Garrett,
177 S.W.3d 652, 657 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd).
"Absent an officer's request or a suspect's consent limiting a search to a particular
area of a vehicle, such as the trunk or passenger compartment, a request to search 'the
car' reasonably includes all areas of the vehicle and excludes none." Montanez v. State,
211 S.W.3d 412, 416 (Tex. App.—Waco 2006, no pet.) (quoting Garrett, 177 S.W.3d at 657-
58). "It is objectively reasonable that an unlimited consent to search a vehicle will
extend to every part of the vehicle within which contraband may be hidden." Id.
When asked for permission to search the vehicle, Anderson deferred to Borst as
the owner of the vehicle. Borst consented to the search of the vehicle without limitation.
There was no evidence and Anderson does not contend that any objection was made by
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Borst or himself refusing consent to search the containers. The search of the containers
did not exceed the scope of the consent given. We overrule issue three.
Failure to Appear
In his sixth issue, Anderson complains that the trial court abused its discretion by
proceeding in his absence, and that error constituted a due process violation. However,
Anderson has not directed us to any place in the record where he requested a bench
warrant in order to allow him to personally appear at trial; thus, he has failed to
preserve his contention that the trial court should have allowed him to appear
personally at the trial. See TEX R. APP. P. 33.1(a). See also In re M.M., 980 S.W.2d 699,
701-02 (Tex. App.—San Antonio 1998, no pet.); Pedraza v. Crossroads Sec. Sys., 960 S.W.2d
339, 342 (Tex. App.—Corpus Christi 1997, no pet.); Conely v. Peck, 929 S.W.2d 630, 633
(Tex. App.—Austin 1996, no writ). Further, he has not shown that he requested to
appear by any alternative means. Anderson does not complain that he did not have
notice of the hearing. Anderson has not preserved this issue for our review. TEX. R.
APP. P. 33.1(a). We overrule issue six.
Conclusion
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 29, 2013
[CV06]
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