Five Hundred Twenty Two Dollars in United State Currency One Firearm Scope Two Cell Phones And Silver Mercedes ML 320 Vin 4JGAB54E77A260775 v. State ( 2019 )

AFFIRMED; Opinion Filed January 22, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01250-CV
FIVE HUNDRED TWENTY TWO DOLLARS IN UNITED STATE CURRENCY; ONE
FIREARM; SCOPE; TWO CELL PHONES; AND SILVER MERCEDES ML 320 VIN
#4JGAB54E77A260775, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 397th Judicial District Court
Grayson County, Texas
Trial Court Cause No. CV-16-1161
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Nowell
Opinion by Justice Nowell
This case presents an appeal from a final judgment of forfeiture ordering money and
property be forfeited to the State of Texas. Following a bench trial, the court found the money and
property that are the subject of this suit1 (collectively, “Property”) were used or intended to be used
in the commission of a felony. Mark Zimmerman owned the Property. In three issues,
Zimmerman argues the trial court erred by denying his motion for discovery, proceeding with trial
before discovery was conducted, and violating his civil rights by ordering his personal bank
1
The final judgment lists the money and property as: “1) five hundred twenty two dollars in United States currency; 2) Smith & Wesson,
Body Guard 38. SPL., serial number: CPK0750BG38; 3) Remington Model 710, 7MM serial number: 71281551, Bushnell Scope, Caldwell Bipod;
4) LG cell phone, model# LGMS330, IMEI# 355867-07-330680-8; 5) Samsung cell phone, model# SM-G530Tl, IMEI# 359130/06/648921/4; and
(6) Silver, Mercedes, ML320, 4JGAB54E71A260775, TX. GJC-9097.”
account be frozen. In a fourth issue, Zimmerman asserts the Grayson County jail and its officials
violated his civil rights by denying his access to the law library. We affirm the trial court’s
judgment.
At the beginning of the trial, the judge stated this civil forfeiture proceeding followed a
criminal case in which a jury found Zimmerman guilty.2 Zimmerman was incarcerated at the time
of the civil trial. The State announced it was ready to proceed with trial. Zimmerman, acting pro
se, stated he wanted to file a motion for continuance, but had been unable to obtain one from the
law library. Additionally, he advised the court he wanted to file a motion for discovery because
the State had not provided any. He stated he previously filed a motion seeking discovery, but did
not know whether an order was entered. Zimmerman primarily sought documents relating to the
freezing of his personal checking account; he did not know whether the account was frozen at the
time of trial. The State explained to the trial court that it executed a subpoena for Zimmerman’s
bank records, but it did not seek money from his checking account in its notice of seizure.
The State was not aware of any discovery requests from Zimmerman, but represented that
any discovery would have been the same documents that were produced in Zimmerman’s criminal
case along with Zimmerman’s own bank records. Regarding its evidence in the civil case, the
State told the trial court: “there is nothing that’s going to be used that Mr. Zimmerman didn’t see
in his criminal case.”
Following the trial, the court entered a final judgment of forfeiture ordering the Property
be forfeited to the State. This appeal followed.
In his first and second issues, Zimmerman argues the trial court erred by denying his motion
for discovery and proceeding with trial. Although Zimmerman informed the court that he filed a
2
This Court considered the merits of Zimmerman’s appeal from his criminal conviction in Zimmerman v. State, No. 05-17-00492-CR, 2018
WL 3968419 (Tex. App.—Dallas Aug. 20, 2018, no pet.). Zimmerman was convicted of four drug-related offenses.
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motion seeking discovery, no motion appears in the record. If we were to assume Zimmerman
filed such a motion, he did not obtain a ruling on the motion. “To preserve a complaint for
appellate review, a party must (1) complain to the trial court by way of ‘a timely request, objection,
or motion; and (2) the trial court must rule or refuse to rule on the request, objection, or motion.’”
Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 164 (Tex. 2018) (quoting Mansions in the Forest,
L.P. v. Montgomery Cty., 365 S.W.3d 314, 317 (Tex. 2012) (per curiam)); see also TEX. R. APP.
P. 33.1(a) (preservation of error). Because Zimmerman did not file a motion or obtain a ruling on
any request he may have presented to the trial court, we conclude he has not preserved his
complaint for appellate review. We overrule Zimmerman’s first and second issues.
In his third issue, Zimmerman asserts the trial court violated his civil rights by ordering a
freeze on his personal bank account. The record does not include an order freezing Zimmerman’s
bank account. A civil forfeiture action is an in rem proceeding and the trial court’s jurisdiction
depends on its control over the property at issue. See State v. Thirty Thousand Six Hundred Sixty
Dollars and no/100, 136 S.W.3d 392, 405 (Tex. App.—Corpus Christi 2004, pet. denied) (en
banc); see also State v. One Million Seven Hundred Eleven Thousand Sixty-one Dollars and
Seventy-nine Cents ($1,711,061.79) in U.S. Currency, Elgin Watch, Rope Necklace, ID Bracelet,
Two (2) Costume Jewelry Rings, & Five (5) Silver Bars, No. 04-18-00379-CV, 2018 WL 6793787,
at *2 (Tex. App.—San Antonio Dec. 27, 2018, no pet. h.). When the property is not within the
court’s control, the trial court does not have jurisdiction over it. See Thirty Thousand Six Hundred
Sixty Dollars and no/100, 136 S.W.3d at 405. Because the State did not seek forfeiture of
Zimmerman’s bank account, the account did not fall within the trial court’s control and the trial
court lacked jurisdiction to take action with respect to it. Further, there is no evidence the trial
court acted beyond its jurisdiction to order the account be frozen. We conclude Zimmerman’s
third issue presents nothing for our review, and we overrule his third issue.
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In his fourth issue, Zimmerman argues the Grayson County jail and its officials violated
his civil rights by denying him access to the law library. Zimmerman informed the trial court he
sought a motion for continuance to obtain documents related to the title of the vehicle subject to
this suit. The State did not argue at trial that the vehicle was purchased with illegal proceeds.
Rather, it showed the car was used in the course of a felony drug transaction and, therefore, was
subject to forfeiture. The trial court concluded any documents related to Zimmerman’s
procurement of the title to the vehicle were unnecessary. Zimmerman does not assert the trial
court’s conclusion was in error or any error probably caused the rendition of an improper judgment.
See TEX. R. APP. P. 44.1 (reversible error in civil cases). Having reviewed the record, we conclude
the trial court did not err. Additionally, Zimmerman did not argue in the trial court that his civil
rights were violated; therefore, we do not consider that argument on appeal. See TEX. R. APP. P.
33.1(a). We overrule Zimmerman’s fourth issue.
We affirm the trial court’s judgment.
171250F.P05
/Erin A. Nowell/
ERIN A. NOWELL
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
FIVE HUNDRED TWENTY TWO On Appeal from the 397th Judicial District
DOLLARS IN UNITED STATE Court, Grayson County, Texas
CURRENCY; ONE FIREARM; SCOPE; Trial Court Cause No. CV-16-1161.
TWO CELL PHONES; AND SILVER Opinion delivered by Justice Nowell.
MERCEDES ML 320 VIN Justices Schenck and Reichek participating.
#4JGAB54E77A260775, Appellant
No. 05-17-01250-CV V.
THE STATE OF TEXAS, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 22nd day of January 2019.
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