Farid Ali Datoo v. State ( 2019 )

NUMBER 13-18-00192-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
FARID ALI DATOO, Appellant,
v.
STATE OF TEXAS, Appellee.
On appeal from County Court at Law No. 3
of Jefferson County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Perkes
Memorandum Opinion by Justice Perkes
In this civil forfeiture case, $49,518.00 was seized during the execution of a search
warrant on Fred’s Game Room in Beaumont, Texas. The operator, appellant Farid Ali
Datoo, was convicted of keeping a gambling place, a Class A misdemeanor. See TEX.
PENAL CODE ANN. § 47.04. After his conviction, the trial court ordered the seized money
forfeited to the Jefferson County District Attorney’s Office as gambling proceeds under
Article 18.18(a) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
ANN. art. 18.18(a).
On appeal, 1 Datoo contends that he was not subject to the automatic forfeiture
provisions under Article 18.18(a) but was instead entitled to notice and a contested
hearing under Article 18.18(b)-(f). See id. art. 18.18(b)-(f). The State concedes this
issue but counters that the judgment should be affirmed because Datoo waived the error.
Alternatively, the State asks us to reverse the judgment and remand the case so that it
can proceed under Article 18.18(b)-(f). Datoo requests that we render judgment that the
money be returned to him. We reverse and remand.
I. DISCUSSION
“Following the final conviction of a person for possession of a gambling device or
equipment, altered gambling equipment, or gambling paraphernalia . . . the court shall
order [seized gambling proceeds] forfeited to the state.” TEX. CODE CRIM. PROC. ANN.
art. 18.18(a); see generally TEX. PENAL CODE ANN. § 47.06 (titled, “Possession of
Gambling Device, Equipment, or Paraphernalia”). When, as here, the person is
convicted of another gambling offense, the person is entitled to notice and a hearing to
contest the forfeiture. TEX. CODE CRIM. PROC. ANN. art. 18.18(b)-(f); State v. Dugar, 553
S.W.2d 102, 104 (Tex. 1977). The State concedes that because Datoo was not
convicted for one of the enumerated offenses under Article 18.18(a), he was entitled to
1 This appeal was transferred to us from the Ninth Court of Appeals in Beaumont under a docket-
equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2
notice and a hearing under Article 18.18(b)-(f). See TEX. CODE CRIM. PROC. ANN. art.
18.18(a)-(f); Dugar, 553 S.W.2d at 104.
Nonetheless, the State asks us to affirm the judgment, asserting that Datoo waived
any error by failing to make a timely objection to the trial court. The State relies on Texas
Rule of Appellate Procedure 33.1(a) for the general proposition that an appellant must
present a “timely request, objection, or motion” to the trial court to preserve the complaint
for appellate review. See TEX. R. APP. P. 33.1(a). Although this is a civil proceeding,
Rule 33.1 applies with equal force to criminal and civil proceedings, and we agree with
the Texas Court of Criminal Appeals that “[t]he requirement that an objection be raised in
the trial court assumes that the appellant had the opportunity to raise it there.” Burt v.
State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013) (citations omitted). In other words,
the operation of Rule 33.1(a) may be suspended when the appellant does not have an
opportunity to comply with the rule. Landers v. State, 402 S.W.3d 252, 254 (Tex. Crim.
App. 2013). To hold otherwise would be inconsistent with the basic tenets of due
process—“notice and an opportunity to be heard at a meaningful time and in a meaningful
manner.” Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 930 (Tex. 1995) (citing
Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
In this case, it is undisputed that the trial court signed the forfeiture order without
conducting a hearing and without notice to Datoo. 2 Thus, the only possible relief Datoo
could seek from the trial court was post judgment. Datoo filed his notice of appeal within
thirty days, meaning he had an opportunity to timely file a motion for a new trial. See
2 According to the clerk’s time stamps, the trial judge signed the order of forfeiture approximately
three hours after Datoo pleaded no contest to keeping a gambling place.
3
TEX. R. CIV. P. 329a(b). However, while a motion for a new trial is a prerequisite to
presenting a complaint on appeal under certain circumstances, none of those
circumstances are present here. See TEX. R. CIV. P. 324(a), (b). In a similar case, the
Landers Court rejected the State’s argument that the defendant should have preserved
her complaint by filing a permissive, as opposed to mandatory, motion for a new trial.
Landers, 402 S.W.3d at 253–55. Because the trial court denied Datoo the opportunity
to object at the time the error was committed, and because no rule of procedure
compelled Datoo to seek post judgment relief before filing his appeal, we conclude that
Datoo may present his complaint for the first time on appeal. See id.; see also Rickels
v. State, 108 S.W.3d 900, 902 (Tex. Crim. App. 2003) (holding that the defendant could
present his complaint for the first time on appeal because “the [trial] court modified the
terms of [the defendant’s] probation without a hearing, and [the defendant] had no
opportunity to object.”).
Next, we turn to the proper disposition of the seized property. Datoo cites $6,300
in U.S. Currency v. State for the proposition that we should render a judgment that the
money be returned to him. See No. 14-98-00738-CV, 2000 WL 1535242, at *2 (Tex.
App.—Houston [14th Dist.] Oct. 19, 2000, pet. denied) (not designated for publication).
The “sole point of error” in that case was whether the trial court erred in proceeding under
Article 18.18(a) when the appellant was convicted of an offense that was not listed in
Article 18.18(a). Id. at *1. After concluding that the trial court had erred, the court of
appeals, without discussion, reversed the judgment and rendered a judgment that the
money be returned to the appellant. Id. at *2; but see Pardue v. State, 252 S.W.3d 690,
4
697 & n.3 (Tex. App.—Texarkana 2008, no pet.) (vacating a judgment under Article
18.18(a) but noting that the State was not precluded from pursuing a forfeiture under an
alternative procedure). If the final disposition of the seized money was presented as a
distinct issue—as it has been in this case—it is not apparent from the two-page opinion.
Without an explanation of its disposition, we find $6,300 in U.S. Currency unpersuasive
on the issue before us and decline to follow it.
The State has requested instead that we remand the case for a proceeding under
Article 18.18(b)-(f). See Pardue, 252 S.W.3d at 697 & n.3. We agree that this is the
proper disposition. Datoo correctly identifies the trial court’s error in this case as a due
process violation. Article 18.18(b)-(f) expressly requires notice and the opportunity for
an interested person to contest the proposed forfeiture in an adversarial proceeding.
TEX. CODE CRIM. PROC. ANN. art. 18.18(b)-(f); Hardy v. State, 102, S.W.3d 123, 127 (Tex.
2003). By ordering an automatic forfeiture under Article 18.18(a), the trial court denied
Datoo these due process protections. See id.; Than, 901 S.W.2d at 930. However, it
is well-settled that “the remedy for a denial of due process is due process,” not a judgment
on the merits. Than, 901 S.W.2d at 933 (citing Perry v. Sindermann, 408 U.S. 593, 603
(1972)).
Moreover, Datoo’s suggested disposition ignores the fact that the State has
already established its interest in the seized property. The State’s only burden in this
forfeiture process was to demonstrate probable cause to the magistrate that issued the
search warrant. 3 See TEX. CODE CRIM. PROC. ANN. art. 18.01(b); Hardy, 102 S.W.3d at
3We also note that unlike Chapter 59 of the Code of Criminal Procedure, which provides another
method for seizing and forfeiting contraband, the State was not required to initiate a show cause hearing in
5
129. Under Article 18.18(f), Datoo, not the State, now bears the burden of proving by a
preponderance of the evidence that the seized money is not gambling proceeds and that
he is entitled to possession. See TEX. CODE CRIM. PROC. ANN. art. 18.18(f); Hardy 102,
S.W.3d at 128–29. Thus, the trial court’s error did not divest the State of its interest in
the seized property nor relieve Datoo of his burden to overcome the State’s interest. The
only thing Datoo is entitled to under the statutory scheme is notice and an opportunity to
contest the forfeiture. See TEX. CODE CRIM. PROC. ANN. art. 18.18(b)-(f).
II. CONCLUSION
Accordingly, we reverse the judgment and remand for further proceedings
consistent with this opinion.
GREGORY T. PERKES
Justice
Delivered and filed the
12th day of December, 2019.
this case; instead, that duty fell to the magistrate that issued the search warrant. Compare TEX. CODE
CRIM. PROC. ANN. art. 59.04(a) (“If a peace officer seizes property under this chapter, the attorney
representing the state shall commence proceedings under this section not later than the 30th day after the
date of the seizure.”) with id. art. 18.18(b) (“If there is no prosecution or conviction following seizure, the
magistrate to whom the return was made shall notify in writing the person found in possession of the . . .
gambling proceeds . . . to show cause why the property seized should not be destroyed or the proceeds
forfeited.”)
6