Reza Vafaiyan v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-098-CV
REZA VAFAIYAN APPELLANT
V.
THE STATE OF TEXAS APPELLEE
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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Reza Vafaiyan, appearing pro se, appeals the trial court‘s order
granting Appellee The State of Texas‘s motion for summary judgment for
forfeiture of United States currency totaling $381, 244.75; a 2000 Pontiac Grand
Am; a 2001 Ford pickup truck; and the proceeds from the sale of the real
1
See Tex. R. App. P. 47.4.
property located at 2900 Kyle Cove in Wichita Falls. In seventeen issues,2
Vafaiyan argues that the trial court abused its discretion by ordering that the
preceding list of items be forfeited to the State, by denying his motion to recuse
Judge Price, by denying his motion for a hearing on his motion challenging the
seizure of his home, by granting the State‘s motion to sell his home, by failing to
make findings of fact and conclusions of law, by consolidating the five forfeiture
cases, by denying his motion for continuance, by sustaining the State‘s
objections to his supplemental response, by granting the State‘s motion for
summary judgment, and by denying his motion for reconsideration. We will
affirm.
II. BRIEF FACTUAL AND PROCEDURAL BACKGROUND3
According to the State‘s motion for summary judgment, ―[f]or a period of at
least four years, Reza Vafaiyan . . . plagued the Wichita Falls, Texas, community
by supplying individuals with a capacious amount of chemicals used in the illegal
manufacture of methamphetamine.‖ In April 2004, the State filed a notice of
seizure and intended forfeiture of United States currency totaling $2,452.00.
Thereafter, the State filed four additional cases involving additional currency,
2
Vafaiyan‘s issues include one through sixteen, as well as a separate issue
that he lists as ―15A.‖
3
Most of the arguments that Vafaiyan raises concern rulings on motions
that he filed. To avoid duplicity, we do not detail all of the motions that Vafaiyan
filed and the rulings thereon in this background section but instead discuss them
below under their respective headings.
2
vehicles, and Vafaiyan‘s house.4 In August 2008, the State filed a motion to
consolidate all five of the forfeiture cases that were pending against Vafaiyan and
filed a consolidated motion for summary judgment on all of the cases. Vafaiyan
filed a pro se response, claiming that he was representing himself in the forfeiture
case involving his house, and his attorney filed a response for all of the forfeiture
cases, including the forfeiture case involving Vafaiyan‘s house.5 The State
thereafter filed a motion objecting to improper summary judgment evidence
included in the summary judgment responses. The trial court sustained the
State‘s objections and granted the State‘s motion for summary judgment,
ordering a final judgment of forfeiture in favor of the State of Texas as to the
$2,452.00 in United States currency; the $200,382.62 in United States currency;
the $178,410.13 in United States currency; the 2000 Red Pontiac Four Door; the
2001 Maroon Ford F-150 Pick-up; and the proceeds from the sale of the real
property located at 2900 Kyle Cove.
Following the trial court‘s final judgment on forfeiture, Vafaiyan filed a
motion for reconsideration, rehearing, and new trial, as well as an amended
4
The State also brought a criminal case against Vafaiyan for first-degree
money laundering. In March 2006, a jury convicted Vafaiyan of first-degree
money laundering, and he received a life sentence. Vafaiyan appealed, and we
affirmed the conviction. See Vafaiyan v. State, 279 S.W.3d 374, 391 (Tex. App.–
–Fort Worth 2008, pet. ref‘d).
5
The record before us does not contain a ruling on Vafaiyan‘s motion to
remain pro se on his house case, which was filed on December 18, 2008.
However, Vafaiyan later filed a motion to dismiss his attorney, and his attorney
filed a motion to withdraw. On February 10, 2009, the trial court granted
Vafaiyan‘s attorney‘s motion to withdraw.
3
motion for reconsideration and new trial. The trial court denied these motions,
and this appeal followed.
III. Standard of Review
Because a majority of the issues that Vafaiyan raises are reviewed under
an abuse of discretion standard, we set forth that standard here. To determine
whether a trial court abused its discretion, we must decide whether the trial court
acted without reference to any guiding rules or principles; in other words, we
must decide whether the act was arbitrary or unreasonable. Low v. Henry, 221
S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.
2004). An appellate court cannot conclude that a trial court abused its discretion
merely because the appellate court would have ruled differently in the same
circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,
558 (Tex. 1995); see also Low, 221 S.W.3d at 620.
An abuse of discretion does not occur when the trial court bases its
decisions on conflicting evidence. In re Barber, 982 S.W.2d 364, 366 (Tex.
1998) (orig. proceeding). Furthermore, an abuse of discretion does not occur as
long as some evidence of substantive and probative character exists to support
the trial court‘s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.
2002).
IV. MOTION TO RECUSE WAS MOOT AND BIAS WAS NOT SHOWN
In his first issue, Vafaiyan argues that the trial court abused its discretion
by denying his motion to recuse Judge Mark Price from presiding on the
4
forfeiture case involving Vafaiyan‘s house. Specifically, Vafaiyan argues that
Judge Price ―served as a lawyer with [the] City Attorney in the matter in
controversy and his association with City Att. who ‗threatened me out of city
broke.‘‖ In his third issue, Vafaiyan argues that the trial court abused its
discretion by denying his motion to sanction the district attorney for fraud, his
motion to dismiss, his motion to stay, and his motion to lease his house.
Vafaiyan claims that the denial of his motions proves that Judge Price was
biased in favor of the State.6 Because both of these issues relate to Vafaiyan‘s
arguments regarding Judge Price, we will analyze them together.
The denial of a motion to recuse is reviewed under an abuse of discretion
standard on appeal. See Tex. R. Civ. P. 18a(f). The Texas Supreme Court has
stated,
‗[J]udicial rulings alone almost never constitute a valid basis for a
bias or partiality motion,‘ and opinions the judge forms during a trial
do not necessitate recusal ‗unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.
Thus, judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.‘
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240–41 (Tex. 2001) (quoting Liteky v.
United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)). Furthermore,
expressions of impatience, dissatisfaction, annoyance, and even anger do not
6
Although we are unable to locate in the record before us or on the Wichita
County Civil Case Summary sheet any motion to lease house and any order
denying such motion, we will, in the interest of justice, presume that such motion
was filed and that an order exists denying it.
5
establish bias or partiality. Id. at 240. ―A judge‘s ordinary efforts at courtroom
administration—even a stern and short-tempered judge‘s ordinary efforts at
courtroom administration—remain immune.‖ Id. (quoting Liteky, 510 U.S. at 556,
114 S. Ct. at 1147).
Here, the record reflects that although Judge Price was initially assigned to
the forfeiture case relating to Vafaiyan‘s house on Kyle Cove, the State filed a
motion to consolidate all of the forfeiture cases, and Judge Brotherton presided
over the forfeiture cases after they were consolidated. Because Judge Price did
not preside over Vafaiyan‘s forfeiture cases, we hold that Vafaiyan‘s issue
relating to his motion to recuse Judge Price is moot. See Bailey v. State, No. 03-
09-00276-CR, 2010 WL 2428085, at *2 (Tex. App.––Austin June 18, 2010, pet.
filed) (mem. op., not designated for publication) (holding that appellant‘s motion
to recuse became moot when his trial was conducted by a visiting judge, rather
than the judge appellant sought to recuse). We therefore overrule Vafaiyan‘s first
issue. Moreover, because judicial rulings alone do not constitute a basis for a
bias, we hold that Judge Price‘s rulings on Vafaiyan‘s motions do not constitute
bias and that no abuse of discretion has been shown.7
7
To the extent that Vafaiyan appears to argue that Judge Price was
previously employed by the City, the record from the hearing on the motion to
recuse demonstrates that the trial court found that the forfeiture was
accomplished by district and state employees, not city employees, and that the
City of Wichita Falls was not a party to the case.
6
We overrule Vafaiyan‘s third issue.8
V. CONSOLIDATION WAS NOT AN ABUSE OF DISCRETION
In his fifth issue, Vafaiyan argues that the trial court abused its discretion
by consolidating the five forfeiture cases into one. Vafaiyan argues that the
consolidation was in violation of Texas Rule of Civil Procedure 174 because it
―prejudiced‖ him since the cases were ―all different in facts and circumstances,
time[,] date, [and] witnesses.‖9
We review the trial court‘s decision to consolidate under an abuse of
discretion standard. See Owens-Corning Fiberglas Corp. v. Martin, 942 S.W.2d
712, 715 (Tex. App.––Dallas 1997, no writ). Texas Rule of Civil Procedure 174
governs the consolidation of actions. Tex. R. Civ. P. 174. Rule 174(a) provides,
When actions involving a common question of law or fact are
pending before the court, it may order a joint hearing or trial of any or
all the matters in issue in the actions; it may order all the actions
consolidated; and it may make such orders concerning proceedings
therein as may tend to avoid unnecessary costs or delay.
8
To the extent that Vafaiyan‘s argument encompasses a challenge to the
propriety of the ruling on the motion to lease his home, we hold that the record
before us does not reveal that the trial court abused its discretion because article
59.02(e) allows the trial court to sell the seized property if that is the only method
by which the value of the property may be preserved. See Tex. Code Crim.
Proc. Ann. art. 59.02(e) (Vernon Supp. 2009).
9
Vafaiyan also argues that holding the consolidation hearing in the
absence of one party was improper and invalid. But the record reveals that he
was present at the hearing. Vafaiyan does not have standing to argue for others
who were not present and does not show how he was harmed by the fact that
they were not present.
7
Tex. R. Civ. P. 174(a). Rule 174 gives the trial court broad discretion to
consolidate cases with common issues of law or fact. See Martin, 942 S.W.2d at
716. However, if ―all of the facts and circumstances of the case unquestionably
require a separate trial to prevent manifest injustice, and there is no fact or
circumstance supporting or tending to support a contrary conclusion,‖ the trial
court does not have any discretion to order consolidation. Womack v. Berry, 156
Tex. 44, 51, 291 S.W.2d 677, 683 (1956).
The trial court may consolidate actions that relate to substantially the same
transaction, occurrence, subject matter, or question. See Martin, 942 S.W.2d at
716. The actions should be so related that the evidence presented will be
material, relevant, and admissible in each case. Id. In deciding whether to
consolidate, the trial court must balance the judicial economy and convenience
that may be gained by the consolidation against the risk of an unfair outcome
because of prejudice or jury confusion. Id.
Even if the cases share common questions of law and fact, an abuse of
discretion may be found if the consolidation results in prejudice to the
complaining party. Id. However, we may not presume prejudice; it must be
demonstrated. Id. Where the record does not reveal actual prejudice, the
consolidation does not provide a basis for reversal. Id.
Here, the record reveals that the two vehicles, the home, and the sums of
money were seized because they were all related to Vafaiyan‘s sale of
pseudoephedrine to methamphetamine makers. That overall scheme connected
8
the items, even though they were seized at different times. Moreover, Vafaiyan
does not demonstrate how he was prejudiced by the consolidation of the cases.
He argues that having four counsel in one case creates ―great confusion for
parties, counsel[], [and] juries and ultimately prejudices [him] where the State is
attempting to strip [him] out of 30 years[‘] life saving[s].‖ This case, however, was
not tried to a jury, and the record does not reflect that the trial court was confused
by the various counsel or by the different facts and circumstances, nor does the
record reflect that Vafaiyan was prejudiced.10 An unfavorable decision, by itself,
is not evidence of prejudice. See id. (stating that we cannot presume prejudice).
We cannot say that the trial court here acted without reference to any guiding
rules or principles or acted in an arbitrary and unreasonable manner by
consolidating the forfeiture cases under rule 174. See Tex. R. Civ. P. 174. We
therefore hold that the trial court did not abuse its discretion by consolidating the
five forfeiture cases involved in this appeal. See Martin, 942 S.W.2d at 719
(holding that trial court did not abuse its discretion by consolidating asbestos-
exposure cases). We overrule Vafaiyan‘s fifth issue.
VI. DENYING CONTINUANCE WAS NOT AN ABUSE OF DISCRETION
10
As stated by the assistant district attorney at the hearing on the motion to
consolidate,
The witnesses that will testify I think would testify to the same facts.
Obviously, the times of seizure and circumstances regarding the
seizure of each piece of property will be a little bit different, but the
common scheme of the profits that were made by Mr. Vafaiyan in
these cases will be the same throughout each case.
9
In his seventh issue, Vafaiyan argues that the trial court abused its
discretion by refusing to compel the State to produce thirteen items ―necessary to
respond to the [S]tate[‘s] motion for [summary judgment]‖ and by failing to follow
166a(g).11 Specifically, Vafaiyan complains that the trial court abused its
discretion when it denied his motion for continuance, in which he requested an
additional thirty days after the requested documents were received, to respond to
the State‘s motion for summary judgment.
We review a trial court‘s ruling on a motion for continuance for an abuse of
discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800
(Tex. 2002). The trial court‘s ruling denying a motion for continuance will not be
disturbed unless a clear abuse of discretion is evident in the record. See Barron
v. Vanier, 190 S.W.3d 841, 847 (Tex. App.—Fort Worth 2006, no pet.) (op. on
reh‘g). If the appellant provides no record of the evidence presented to the trial
court, we must presume that the evidence supports the ruling. See Green v.
Kaposta, 152 S.W.3d 839, 842 (Tex. App.—Dallas 2005, no pet.).
A litigant who fails to diligently use the rules of civil procedure for discovery
purposes is not entitled to a continuance. State v. Wood Oil Distrib., Inc., 751
S.W.2d 863, 865 (Tex. 1988). In deciding whether a trial court abused its
discretion by denying a motion for continuance seeking additional time to conduct
discovery, we consider factors such as the length of time the case has been on
11
Although Vafaiyan‘s brief references ―166(g),‖ it appears that he meant
―166a(g)‖ because he does not complain that the trial court should have required
the State to set forth an additional statement of pertinent facts.
10
file, the materiality and purpose of the discovery sought, and whether the party
seeking the continuance has exercised due diligence to obtain the discovery
sought. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).
Here, the record reveals that the State filed its notice of seizure and
intended forfeiture in April 2004 and that the forfeiture cases were consolidated
on August 4, 2008. Also on August 4, 2008, the State filed its motion for
summary judgment. Two weeks later, Vafaiyan‘s attorney filed his first motion for
continuance, and that same day, the trial court granted a continuance until
October 29, 2008. On August 27, 2008, Vafaiyan, proceeding pro se, filed a
motion for continuance, requesting ninety days to respond to the State‘s motion
for summary judgment, but there is no ruling on this motion in the record before
us. On October 24, 2008, Vafaiyan‘s attorney filed his second motion requesting
a continuance until November 29, 2008. On October 27, 2008, Vafaiyan, acting
pro se, filed a motion requesting that the summary judgment be ―dismissed‖ or
alternatively that he be granted a ninety-day continuance. That same day, the
trial court granted a continuance until November 29, 2008. On November 21,
2008, Vafaiyan‘s attorney filed his third motion requesting a continuance until
January 29, 2009, because ―[t]here are hundreds of pages of exhibits,‖ ―[i]t has
taken hours to go through these exhibits,‖ and ―[t]he effort to obtain discovery
[because his client was in the penitentiary] has proven most difficult.‖ Without
receiving an explicit ruling on the third motion for continuance, on January 29,
2009, Vafaiyan‘s counsel filed a response to the State‘s motion for summary
11
judgment,12 and Vafaiyan filed his ―Pre Production Respon[se] To State[‘s]
Motion For Summary Judgment And Motion For Continuance Till Requested
Production, Discovery Obtained.‖ The trial court thereafter denied Vafaiyan‘s
request for an additional continuance.
In summary, the record demonstrates that the initial case had been on file
for over four years before the State filed its motion for summary judgment; that
Vafaiyan had been granted multiple continuances; that Vafaiyan‘s attorney was
able to file a response to the State‘s motion for summary judgment on January
29, 2009, despite Vafaiyan‘s claims that additional evidence was needed to
prove that the property had been obtained legally; that Vafaiyan himself was able
to file a response; and that the trial court did not consider the motion and
responses until February 24, 2009. Moreover, Vafaiyan‘s motion complained
that he had requested the documents from the State in September 2008, but he
did not explain his failure to make diligent efforts to secure such discovery since
2004 when the initial case was filed. Because all of the pertinent factors weigh in
favor of the State, we hold that the trial court acted within its discretion by
denying Vafaiyan‘s motion for continuance. See Two Thirty Nine Joint Venture,
145 S.W.3d at 161 (listing factors); Duerr v. Brown, 262 S.W.3d 63, 79 (Tex.
App.––Houston [14th Dist.] 2008, no pet.) (holding that one year was sufficient
time for discovery and concluding that all factors weighed in favor of denying
continuance). We overrule Vafaiyan‘s seventh issue.
12
This response also covered Vafaiyan‘s house at 2900 Kyle Cove.
12
VII. NO ABUSE OF DISCRETION SHOWN BY DENYING VAFAIYAN’S
MOTION FOR LEAVE TO FILE UNTIMELY SUPPLEMENTAL RESPONSE
In his eighth issue, Vafaiyan argues that the trial court abused its discretion
by sustaining the State‘s objections to his untimely supplemental response and
by granting summary judgment for the State.13 Vafaiyan contends that TDCJ
rules prevented him from obtaining a stamp to mail his supplemental response
and that this constituted ―excusable neglect,‖ not conscious indifference.
In a summary judgment proceeding, the nonmoving party may file and
serve opposing affidavits or other written responses no later than seven days
prior to the scheduled hearing.14 Tex. R. Civ. P. 166a(c). Only with the trial
court‘s permission may the nonmoving party file summary judgment evidence
past the seven-day deadline. See id. We review a trial court‘s ruling on a motion
for leave to file a late summary judgment response for an abuse of discretion.
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002);
McClure v. Denham, 162 S.W.3d 346, 349 (Tex. App.––Fort Worth 2005, no
pet.).
13
We note that Vafaiyan‘s argument challenges only the trial court‘s ruling
sustaining the State‘s objections to his supplemental response to the State‘s
motion for summary judgment. Vafaiyan does not challenge the trial court‘s
ruling sustaining the State‘s objections to his affidavit and to the summary
judgment evidence filed by his counsel.
14
The trial court can decide the motion for summary judgment on
submission, without an appearance by the attorneys before the court. Martin v.
Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). Regardless,
the hearing date determines the time for response to the motion. Id.
13
Here, as noted above, the State filed its motion for summary judgment on
August 4, 2008. Within that motion, the State gave notice that their motion would
be submitted to the trial court for consideration without a hearing on August 29,
2008 at 5:00 p.m. Thereafter, as noted above, Vafaiyan and his attorney filed
multiple motions for continuance and ultimately filed their responses on January
29, 2009. On February 2 and February 4, 2009, the attorneys signed a Rule 11
Agreement, agreeing that the State had until 5:00 p.m. on February 17, 2009, to
file a reply to Vafaiyan‘s summary judgment response and stating that the new
final submission date for the motion for summary judgment would be extended
until 5:00 p.m. on February 23, 2009.15
On February 11, 2009, Vafaiyan filed a ―Motion For Continuance And
Request [for] Leave To Amend The Response To The State[‘s] Motion For
Summary Judgment,‖ in which Vafaiyan stated that ―[l]ately‖ he had received
evidence that supported his summary judgment response and that he wished to
amend his previous response to incorporate the ―new evidence.‖ On February
17, 2009, the trial court denied Vafaiyan‘s motion for continuance and leave to
amend his response. Vafaiyan thereafter placed his supplemental response in
the TDCJ mail on February 20, 2009, but it was not received by and filed with the
15
Vafaiyan did not sign the agreement, and therefore argues that it is void
because he was representing himself pro se in the forfeiture case involving his
house. The Rule 11 Agreement was approved by the trial court and filed on
February 5, 2009, but the document does not state whether Vafaiyan received a
copy. Because, as discussed below, Vafaiyan‘s motion for continuance and
leave to amend his response were denied, the failure to include Vafaiyan in the
Rule 11 Agreement is harmless.
14
trial court until February 26, 2009. As noted above, the trial court considered the
motion for summary judgment and response on February 24, 2009. The State
filed objections to Vafaiyan‘s supplemental response, and the trial court
sustained the State‘s objections.
Based on the foregoing, Vafaiyan failed to obtain the trial court‘s
permission, as required by rule 166a(c), to file his response. Thus, we interpret
Vafaiyan‘s argument to be that the trial court erred by denying his motion for
leave to supplement his response. Yet, Vafaiyan‘s motion for leave does not
specify when he received the ―new evidence,‖ what the ―new evidence‖ consisted
of, where the ―new evidence‖ came from (though it intimates that it was not from
the State), and why he could not have obtained the ―new evidence‖ prior to the
time his initial response was filed. Because Vafaiyan did not show why his failure
to timely supplement was not intentional or the result of conscious indifference,
see Carpenter, 98 S.W.3d at 688, we hold that the trial court did not abuse its
discretion by denying Vafaiyan‘s motion for leave to supplement his summary
judgment response. See McClure, 162 S.W.3d at 349 (holding that trial court did
not abuse its discretion by overruling appellant‘s motion for leave to file
supplemental evidence because appellant did not show that his failure to timely
produce affidavit was not intentional or the result of conscious indifference). We
overrule this portion of Vafaiyan‘s eighth issue.
VIII. SUMMARY JUDGMENT FOR THE STATE WAS PROPER
15
In the remainder of his eighth issue and in issues six, eleven, twelve,
thirteen, fourteen, fifteen, fifteen A, and sixteen, Vafaiyan challenges whether the
trial court‘s grant of summary judgment forfeiting his assets in favor of the State
was proper. Specifically, Vafaiyan argues that there was no probable cause to
seize the property, that the search affidavits were based on hearsay, that all of
the seizures were therefore illegal, and that the State failed to show a nexus
between the property that was forfeited and any criminal activity.
A. Law on Forfeiture
Chapter 59 of the Texas Code of Criminal Procedure prescribes the
procedures governing civil forfeiture, which is an in rem proceeding against
contraband. State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692–93 (Tex.
2004); Hardy v. State, 102 S.W.3d 123, 126–27 (Tex. 2003). Under chapter 59,
property, including currency, that has been used in the commission of a felony or
that constitutes proceeds gained from the commission of a felony in violation of
Chapter 481 of the Texas Health and Safety Code (the Texas Controlled
Substances Act) is contraband subject to forfeiture. Tex. Code Crim. Proc. Ann.
art. 59.01(2) (A)–(D) (Vernon Supp. 2009); Real Prop. Located at 4125 Blanton,
Wichita Falls v. State, 230 S.W.3d 476, 481 (Tex. App.—Fort Worth 2007, pet.
denied).
In a Chapter 59 forfeiture hearing, the trial court must first determine
whether the property in question is indeed ―contraband‖ as defined by the statute.
Tex. Code Crim. Proc. Ann. arts. 59.01(2) (Vernon Supp. 2009), 59.05 (Vernon
16
2006); 1996 Cadillac & 2002 Lincoln Autos. v. State, No. 02-07-00017-CV, 2008
WL 163552, at *4 (Tex. App.—Fort Worth Jan. 17, 2008, no pet.) (mem. op.).
The State must establish, by a preponderance of the evidence, a substantial
nexus or connection between the property to be forfeited and the statutorily
defined criminal activity. State v. $11,014.00, 820 S.W.2d 783, 785 (Tex. 1991);
Forty-Seven Thousand Two Hundred Dollars U.S. Currency v. State, 883 S.W.2d
302, 306 (Tex. App.—El Paso 1994, writ denied); 1996 Cadillac & 2002 Lincoln
Autos., 2008 WL 163552, at *4. Thus, the State must prove, considering all the
evidence, that it is more reasonably probable than not that the seized property
was either intended for use in, or derived from, a violation of the offenses
enumerated in the forfeiture statute. $9,050.00 in U.S. Currency v. State, 874
S.W.2d 158, 161 (Tex. App.—Houston [14th Dist.] 1994, writ denied).
The State may prove the required substantial nexus through circumstantial
evidence. $11,014.00, 820 S.W.2d at 785. When relying on circumstantial
evidence, the State must offer evidence that raises more than a mere surmise or
suspicion regarding the source of the property or money. Id. However, the State
is not required to exclude every possible means by which a person may have
acquired the seized property. $7,058.84 in U.S. Currency v. State, 30 S.W.3d
580, 586 (Tex. App.—Texarkana 2000, no pet.); Four Thousand One Hundred
Eighty-Two Dollars in U.S. Currency v. State, 944 S.W.2d 24, 27 (Tex. App.—
Texarkana 1997, no writ). The trial court may draw any and all reasonable
17
inferences from the circumstances shown by the evidence. $7,058.84, 30 S.W.3d
at 586.
B. The $2,452.00 and the $200,382.62 in U.S. Currency
In his twelfth issue, Vafaiyan argues that the trial court erred by ordering
the forfeiture of $2,452.00 in currency. In issue fifteen A, Vafaiyan argues that
the trial court erred by ordering the forfeiture of $200,382.62 that was located in a
safety deposit box.
The record contains the affidavit of Bobby Dilbeck, an investigator with the
Drug Enforcement Division of the Wichita County District Attorney‘s Office, who
averred the following:
3. In March of 2004, I was involved in an investigation into the
activities of Reza Vafaiyan, a/k/a Gholamereza Vafaiyan
(―Vafaiyan‖). On March 22, 2004, Task Force officers, including
myself, John Spragins, Chris Taylor, and Jim Whitehead were
conducting surveillance on the Walgreens store at the intersection of
Kemp and Southwest Parkway in Wichita Falls, Texas. Employees
of that business had called law enforcement on numerous occasions
to identify subjects purchasing large amounts of pseudoephedrine.
On March 22, 2004, Walgreens employees contacted officers and
gave the description of a male subject who had just purchased two
boxes of pseudoephedrine tablets. During the surveillance, officers
observed that this individual was Vafaiyan, an individual who officers
recognized and knew owned a convenience store business named
Krystal Mart in Wichita Falls, Texas, and observed Vafaiyan exit the
store and enter a red Pontiac Grand Am vehicle. I knew that an
investigation was pending with the U.S. Drug Enforcement
Administration (―DEA‖) regarding Vafaiyan‘s purchase of and resell
of various chemicals used in the manufacture of methamphetamine,
including pseudoephedrine. After Vafaiyan left the Walgreens store,
officers followed him to another Walgreens store located in Wichita
Falls, Texas. Officers observed Vafaiyan enter the Walgreens, and
saw him purchase two more boxes of pseudoephedrine tablets.
Officers continued to follow Vafaiyan as he left that Walgreens, and
18
saw Vafaiyan drive in an erratic manner. Vafaiyan was stopped and
detained, and his identity was confirmed through his driver‘s license.
4. Upon approaching Vafaiyan‘s vehicle, officers observed two
plastic bags laying in the front seat of the vehicle, with two boxes of
pseudoephedrine tablets in each bag. Based on the information
gained in the prior investigation and based on Vafaiyan‘s purchases
on that day, he was arrested for possession or transport of certain
chemicals with intent to manufacture a controlled substance. In a
suitcase located within the trunk of the vehicle, numerous receipts
were found from businesses in the Wichita Falls and Dallas/Fort
Worth areas indicating the purchase of a large number of
pseudoephedrine tablets, lithium batteries, and ether starting fluid.
From my experience in the investigation of illegal drug activity, I
know that all of these items are used in the manufacture of
methamphetamine. . . . Vafaiyan told me on that day that he knew
the items he had been purchasing were used to manufacture
methamphetamine.
5. Along with the receipts, officers also found a quantity of 20 dollar
bills located in the suitcase in Vafaiyan‘s trunk. The money was
counted at the scene, in Vafaiyan‘s presence, and it totaled $2,300.
Vafaiyan also had an additional $152 in his wallet. Based on the
DEA investigation and the facts learned in my surveillance of
Vafaiyan, this money was seized as being proceeds from Vafaiyan‘s
illegal activity of money laundering and transporting certain
precursor chemicals with intent to manufacture methamphetamine.
6. On April 28, 2004, I served a grand jury subpoena on the
Texoma Community Credit Union, and learned that Vafaiyan had
three accounts and a safe deposit box at that establishment. I know
based on my experience and training in the field of narcotics that
persons often keep proceeds from illegal activity in bank accounts
and safe deposit boxes. Based on this knowledge and the other
knowledge I had gained regarding Vafaiyan‘s illegal activities, I
applied for and received an evidentiary search warrant for
[Vafaiyan‘s safety deposit box]. . . .
7. On April 29, 2004, pursuant to the warrant, I conducted a search
of Vafaiyan‘s safety deposit box at the Texoma Community Credit
Union. My search revealed $200,382.62 in United States currency
in quantities of 50 dollar bills, 100 dollar bills, and loose coins. The
50 dollar bills and 100 dollar bills were packaged in two plastic Wal-
19
Mart bags. Based on the investigation of Vafaiyan‘s criminal
activities and the profits from his large scale selling of precursor
materials used in the manufacture of methamphetamine, DPS officer
Mark Ball seized the $200,382.62 in currency as contraband. . . .
The record also contains depositions from several convicted
methamphetamine manufacturers who testified regarding the frequency of their
purchases of pseudoephedrine tablets from Vafaiyan. One of the individuals who
purchased pseudoephedrine tablets from Vafaiyan stated in his deposition that
during May and June 2003, he gave Vafaiyan $2,000–$3,000 three times a
week, and then after that, he gave Vafaiyan $2,000–$3,000 approximately once
a month until January 2004. Other individuals testified to similar large
purchases. Moreover, in his affidavit, Sergeant Ball averred that he personally
reviewed paperwork and receipts that were seized from Vafaiyan‘s vehicles, the
Kyle Cove property, and Krystal Mart, as well as sales records from Target, Wal-
Mart, and other various distributors. Based on his review of those records, he
calculated that Vafaiyan purchased
at least the following amounts of pseudoephedrine: 384 boxes and
bottles in 2000; 1,375 boxes and bottles in 2001; 9,593 boxes and
bottles in 2002; 11,206 boxes and bottles in 2003; and 521 boxes
and bottles from January through April 2004. In total, from January
2000 to April 2004, Vafaiyan purchased 26,079 boxes and bottles of
pseudoephedrine, along with 9,257 starting fluid cans and 12,137
lithium batteries. My review of Vafaiyan‘s receipts also indicated that
during this time period, Vafaiyan spent $211,284.81 on these
materials. . . .
20
Sergeant Ball also reviewed paperwork related to Vafaiyan‘s personal bank
accounts, as well as accounts related to his Krystal Mart business. Sergeant Ball
averred that
the Krystal Mart account had a positive balance in 2002 of
$1,778.43, it then had negative balances of $5,874.10 and
$6,884.67 in 2003 and 2004, respectively. In other words, during
the time of law enforcement‘s overall investigation into Vafaiyan‘s
activities, Vafaiyan‘s Krystal Mart business account showed a loss. I
believe that this is further evidence that the large amounts of cash
seized from Vafaiyan were proceeds from his criminal activities,
rather than any legitimate source.
Based on the evidence attached to the State‘s motion for summary
judgment, the circumstantial evidence established a substantial nexus that the
$2,452.00 and the $200,382.62 were proceeds gained from the commission of a
felony in violation of Chapter 481 of the Texas Controlled Substances Act, which
made the sums of currency contraband subject to forfeiture. See Tex. Code
Crim. Proc. Ann. art. 59.01(2)(C); Tex. Health & Safety Code Ann. ch. 481; Four
Thousand One Hundred Eighty-Two Dollars in U.S. Currency v. State, 944
S.W.2d 24, 28–29 (Tex. App.––Texarkana 1997, no writ) (holding that evidence
was legally sufficient to support forfeiture of currency when testimony established
more than a mere surmise or suspicion that the money was connected to drug
trafficking, even though appellant was convicted for possession of
methamphetamine rather than for sale of it, because baggies and scales were
also recovered). Because the State demonstrated probable cause for seizing the
currency by establishing a substantial connection or nexus between the currency
21
and the defined criminal activity, the trial court did not err by ordering the
forfeiture of the contraband currency. See $11,014.00, 820 S.W.2d at 785. We
overrule Vafaiyan‘s twelfth issue and his issue fifteen A.
C. The House and $4,300.00 in U.S. Currency
In his sixth issue, Vafaiyan argues that the trial court erred by ordering the
forfeiture of his house and $4,300.00 in U.S. currency. The summary judgment
evidence presented by the State reveals that in early April 2004, Dale Newkirk,
Diversion Investigator with the United States Drug Enforcement Administration,
contacted DPS Sergeant Mark Ball and asked him to assist with an investigation
of Vafaiyan. On April 25 and 26, 2004, DPS troopers and officers with the
Wichita Falls Police Department followed Vafaiyan to the Dallas/Fort Worth area;
from there to Shreveport, Louisiana; and then back to the Dallas/Fort Worth area.
During the surveillance, Newkirk observed Vafaiyan stop at eleven different
stores, including Wal-Mart, Target, and two wholesale distributors. During two of
those stops, Newkirk observed Vafaiyan purchase pseudoephedrine tablets. On
April 27, 2004, Vafaiyan returned to his home at Kyle Cove and was arrested
pursuant to a warrant for possession of methamphetamine. Sergeant Ball
thereafter submitted an eighteen-page affidavit detailing the surveillance that had
been performed on Vafaiyan. A magistrate found that ―the verified facts stated
by Affiant in said Affidavit show that Affiant has probable cause for the belief
expressed therein and establish existence of proper grounds‖ and issued a
search warrant for Vafaiyan‘s home.
22
During the search of Vafaiyan‘s home, officers found, among other things,
two cases, each of which contained twenty-four boxes of ten-count Sudafed 24-
Hour; $4,300.00 in U.S. currency in a desk drawer in a bedroom; a sack
containing suspected pseudoephedrine pills in a desk drawer; receipts for pills,
batteries, and Coleman fuel; empty boxes for starter fluid and pseudoephedrine;
and a wireless observation system. In his deposition, Vafaiyan admitted that he
had kept cases of Sudafed at his house and said that it was for safety purposes
(i.e., so it would not all get stolen if his store was broken into).
Based on the evidence attached to the State‘s motion for summary
judgment, the State had probable cause to search and seize Vafaiyan‘s home
because he had been seen purchasing large quantities of pseudoephedrine, as
well as other precursor ingredients used in the manufacture of
methamphetamine,16 and taking them back to his house. The circumstantial
evidence established a substantial nexus that Vafaiyan‘s home was being used
in the commission of a felony in violation of Chapter 481 of the Texas Controlled
Substances Act, which made his home contraband subject to forfeiture. See
Tex. Code Crim. Proc. Ann. art. 59.01(2)(B)(i); Tex. Health & Safety Code Ann.
ch. 481; Real Prop. Located At 4125 Blanton, 230 S.W.3d at 488 (holding that
evidence was legally and factually sufficient to establish that property was
contraband and that seizure was valid); see also Lot 6, NW 17’ of 5, Block 5,
16
Vafaiyan admitted during his deposition that he had been told by the DEA
that pseudoephedrine is the primary precursor chemical utilized in the illicit
manufacturing of methamphetamine.
23
Port Lavaca Original Townsite, (401 S. Commerce) v. State, No. 13-07-00326-
CV, 2009 WL 1801466, at *4 (Tex. App.––Corpus Christi June 25, 2009, no pet.)
(mem. op.) (holding that because State had provided evidence demonstrating
that appellant stored and sold controlled substances in his house and because
appellant judicially confessed to engaging in such activities, State‘s evidence was
legally sufficient to establish that appellant used or intended to use his house to
aid in unlawful delivery of controlled substances, thus supporting finding that
house was contraband subject to forfeiture). Additionally, circumstantial
evidence established a substantial nexus that the $4,300.00, which was found in
a desk drawer in a bedroom in Vafaiyan‘s house, was proceeds gained from the
commission of a felony in violation of Chapter 481 of the Texas Controlled
Substances Act, which made the $4,300.00 in currency contraband subject to
forfeiture. See Tex. Code Crim. Proc. Ann. art. 59.01(2)(C); Tex. Health & Safety
Code Ann. ch. 481; Four Thousand One Hundred Eighty-Two Dollars in U.S.
Currency, 944 S.W.2d at 28–29. Because the State demonstrated probable
cause for seizing the property and the money by establishing a substantial
connection or nexus between the seized property and money and the defined
criminal activity, the trial court did not err by ordering the forfeiture of the
contraband property and currency. See $11,014.00, 820 S.W.2d at 785. We
overrule Vafaiyan‘s sixth issue.
24
D. The $2,100.00 and the 2000 Pontiac
In his thirteenth issue, Vafaiyan argues that the trial court erred by ordering
the forfeiture of $2,100.00 in U.S. currency and his 2000 Pontiac.
As set forth above, Investigator Dilbeck and others followed Vafaiyan‘s red
Pontiac Grand Am on March 22, 2004, as he made numerous stops to purchase
pseudoephedrine tablets. On April 27, 2004, Sergeant Ball searched Vafaiyan‘s
2000 Pontiac and found the following items in the trunk: six cases of Prestone
Starter, two cases of Sudafed 24-Hour, thirty-three boxes of 240-milligram
Sudafed, one box containing four cases of ―Maxbrand Suda 60s‖ and six boxes
of Sudafed 240 milligrams, and five eight-packs of lithium batteries. During the
search, Sergeant Ball found miscellaneous receipts in Vafaiyan‘s possession and
$2,100.00 in U.S. currency inside the console of the Pontiac.
Based on the evidence attached to the State‘s motion for summary
judgment, the State had probable cause to search and seize Vafaiyan‘s Pontiac
and the money therein because he had been using the car to travel to different
stores to purchase pseudoephedrine, as well as other precursor ingredients used
in the manufacture of methamphetamine. See $574.37 U.S. Coin & Currency v.
State, No. 02-06-00434-CV, 2008 WL 623793, at *5–7 (Tex. App.––Fort Worth
Mar. 6, 2008, no pet.) (mem. op.) (holding that State demonstrated (1) that it was
more probable than not that the cash was either intended for use in or derived
from a violation of chapter 481 and thus constituted contraband subject to
forfeiture and (2) that truck was contraband because it was used in the
25
commission of a felonious act, i.e., possessing and transporting
methamphetamine). Because the State demonstrated probable cause for seizing
the vehicle and the currency by establishing a substantial connection or nexus
between the currency and the car and the defined criminal activity, the trial court
did not err by ordering the forfeiture of the Pontiac and the currency, which were
contraband. See $11,014.00, 820 S.W.2d at 785. We overrule Vafaiyan‘s
thirteenth issue.
E. The $43,290.94 From Savings and Checking Accounts
In his fifteenth issue, Vafaiyan argues that the trial court erred by forfeiting
$43,290.94 in U.S. currency.
After executing the searches described above, on May 4, 2004, Sergeant
Ball executed a search warrant on First American Bank in Wichita Falls, Texas,
and requested information for all bank accounts held in Vafaiyan‘s name.
Sergeant Ball discovered that Vafaiyan had three accounts at First American
Bank with balances of $30,519.37; $12,030.31; and $741.26, for a total of
$43,290.94. Sergeant Ball seized the money in those three accounts ―as being
proceeds from Vafaiyan‘s illegal activities.‖
Based on the evidence attached to the State‘s motion for summary
judgment, the circumstantial evidence established a substantial nexus that the
$43,290.94 constituted proceeds gained from the commission of a felony in
violation of Chapter 481 of the Texas Controlled Substances Act, which made the
currency contraband subject to forfeiture. See Tex. Code Crim. Proc. Ann. art.
26
59.01(2)(C); Tex. Health & Safety Code Ann. ch. 481; Four Thousand One
Hundred Eighty-Two Dollars in U.S. Currency, 944 S.W.2d at 28–29. Because
the State demonstrated probable cause for seizing the currency by establishing a
substantial connection or nexus between the currency and the defined criminal
activity, the trial court did not err by ordering the forfeiture of the contraband
currency. See $11,014.00, 820 S.W.2d at 785. We overrule Vafaiyan‘s fifteenth
issue.
F. The $128,719.49 From the Floor Safe and the F-150 Pickup
In his fourteenth issue, Vafaiyan contends that the trial court erred by
forfeiting $128,719.49 to the State. In his sixteenth issue, Vafaiyan contends that
the trial court erred by ordering the forfeiture of his F-150 Pickup Truck.
Sergeant Ball‘s affidavit states the following with regard to the search of
Krystal Mart and the F-150 pickup:
On August 9, 2004, I received another telephone call from
Investigator Newkirk of the DEA in Ft. Worth, Texas. Investigator
Newkirk told me that he had received a telephone call from Mike
Ellsworth, who works in the security department of Target Stores.
Mr. Ellsworth had notified Investigator Newkirk that at around 10:30
that morning[], Vafaiyan and another man, later identified as Troy
Vaughn, were inside the Denton, Texas Target store located at 2315
Colorado Blvd., Denton, Texas. Mr. Ellsworth further stated that
Vafaiyan and Vaughn had each purchased the maximum amount of
pseudoephedrine products and then exited the store. Personnel
from the Target store observed and video-taped these events. Mr.
Ellsworth stated that store security personnel observed Vafaiyan and
Vaughn jumping in the air, laughing, and clapping their hands
together. The store security personnel also observed Vafaiyan put
the pseudoephedrine products inside Vafaiyan‘s vehicle. The store
security personnel then observed Vafaiyan depart the store in a
2001 Maroon Ford F-150 pickup bearing TX Tag 4TR-G64.
27
Investigator Newkirk also told me that he had received a second
telephone call from Mr. Ellsworth at approximately 1:30 p.m. that
same day. During the second telephone call, Mr. Ellsworth stated
that Vafaiyan and Vaughn were inside the Target store near Love
Field Airport in Dallas, Texas and that each had purchased large
quantities of pseudoephedrine products. I know from my training
and experience that in order to get around maximum purchase
amounts allowed by federal regulations, meth cooks and their
suppliers frequently buy the maximum amount of pseudoephedrine
products at multiple stores, which is known as ―smurfing.‖
20. As a result of the information received from Investigator
Newkirk, I traveled to the Krystal Mart to speak with Vafaiyan about
his trip to Dallas that day. Vafaiyan stated that he had not been to
Dallas that day. I advised officers to hold Mr. Vafaiyan outside the
store while I obtained another search warrant for Krystal Mart, and
for the 2001 F-150 pickup Vafaiyan had driven that day. . . .
The pickup contained twenty-five empty store sacks, correlating with some of the
stores at which Vafaiyan had stopped to purchase pseudoephedrine and tending
to prove that Vafaiyan had transported the pseudoephedrine in his vehicle. The
search and seizure log from the search of Krystal Mart revealed that within a safe
inside Krystal Mart, officers found $128,719.49; three rings; and a NationsBank
credit card.
Based on the evidence attached to the State‘s motion for summary
judgment, the State had probable cause to search and seize Vafaiyan‘s Ford F-
150 pickup and the money from the safe at Krystal Mart because Vafaiyan had
used the pickup to travel to different stores to purchase pseudoephedrine, which
he sold in Krystal Mart. See $574.37, 2008 WL 623793, at *5–7. The
circumstantial evidence established a substantial nexus that the $128,719.49
constituted proceeds gained from the commission of a felony in violation of
28
Chapter 481 of the Texas Controlled Substances Act, which made the currency
contraband subject to forfeiture, and the pickup was contraband because it was
used in the commission of a felony in violation of Chapter 481 of the Texas
Controlled Substances Act, which made the pickup contraband subject to
forfeiture. See Tex. Code Crim. Proc. Ann. art. 59.01(2)(C); Tex. Health & Safety
Code Ann. ch. 481; Four Thousand One Hundred Eighty-Two Dollars in U.S.
Currency, 944 S.W.2d at 28–29. Because the State demonstrated probable
cause for seizing the currency and the Ford F-150 by establishing a substantial
connection or nexus between the currency and the Ford F-150 and the defined
criminal activity, the trial court did not err by ordering the forfeiture of the
contraband. See $11,014.00, 820 S.W.2d at 785. We overrule Vafaiyan‘s
fourteenth and sixteenth issues.
G. Trial Court Properly Granted Summary Judgment For the State
In the remainder of his eighth issue and in his eleventh issue, Vafaiyan
argues that the trial court erred by granting the State‘s motion for summary
judgment and that the trial court erred by forfeiting his assets because the
forfeitures were barred by the rule of law.
We review a summary judgment de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We consider the
evidence presented in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could, and disregarding
evidence contrary to the nonmovant unless reasonable jurors could not. Id. We
29
indulge every reasonable inference and resolve any doubts in the nonmovant‘s
favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff is
entitled to summary judgment on a cause of action if it conclusively proves all
essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v.
Jones, 710 S.W.2d 59, 60 (Tex. 1986).
Here, we have reviewed each of the seizures and found that the items
seized constituted contraband and were subject to forfeiture. 17 The
circumstantial evidence attached to the State‘s motion for summary judgment
demonstrated a substantial nexus between each of the seized properties and the
defined criminal activity.
Although Vafaiyan and his counsel each filed a response to the State‘s
motion for summary judgment, the State objected to Vafaiyan‘s ―self-serving,
conclusory affidavit‖ (which was the only ―evidence‖ he attached to his response)
and objected to nine out of the ten exhibits attached to Vafaiyan‘s counsel‘s
response. The trial court granted all of the State‘s objections to Vafaiyan‘s
summary judgment evidence, leaving the affidavit of Sergeant Ball as the only
―controverting‖ summary judgment evidence. Sergeant Ball‘s affidavit does not
controvert the evidence presented by the State but rather, as set forth above,
bolsters it. Thus, there is no contradictory evidence to raise a genuine issue of
17
The trial court‘s order granting final summary judgment of forfeiture
states, ―Although the cases have been consolidated, the Court‘s decision has
considered each case and factual situation separately in ruling on the pending
Motion for Summary Judgment.‖
30
material fact. Because we have held above that the trial court did not abuse its
discretion by ordering the forfeiture of each of the items and amounts of currency
set forth above and because we have found nothing that says that the forfeiture
of those items is barred by the rule of law, we hold that the trial court properly
granted summary judgment for the State. $32,960 in U.S. Currency v. State, No.
13-04-00526-CV, 2005 WL 2560376, at *3 (Tex. App.–Corpus Christi Oct. 13,
2005, no pet.) (mem. op.) (holding that trial court properly granted summary
judgment for the State because the State had adequately established a
reasonable belief that a substantial connection existed between the property to
be forfeited and the underlying criminal activity). We overrule the remainder of
Vafaiyan‘s eighth issue and his eleventh issue.
IX. FINDINGS OF FACT AND CONCLUSIONS OF LAW NOT REQUIRED
In his fourth and tenth issues, Vafaiyan argues that the trial court abused
its discretion by failing to make findings of fact and conclusions of law. Vafaiyan
contends that such failure forced him to guess at all the possible reasons for
denying his motions, which made it difficult for him to appeal.
Findings of fact and conclusions of law have no place in a summary
judgment proceeding. Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994).
The reason findings and conclusions ―have no place‖ in a summary judgment
proceeding is that for summary judgment to be rendered, there cannot be a
―genuine issue as to any material fact[,]‖ and the legal grounds are limited to
those stated in the motion and response. Tex. R. Civ. P. 166a(c); IKB Indus.
31
(Nig.) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997); Stiles v.
Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993). In other words, if
summary judgment is proper, there are no facts to find, and the legal conclusions
have already been stated in the motion and response. IKB Indus. (Nig.) Ltd., 938
S.W.2d at 441. The trial court should not make, and an appellate court cannot
consider, findings of fact in connection with a summary judgment. Id.
Here, because the trial court disposed of the case by granting the State‘s
motion for summary judgment, we hold that the trial court did not abuse its
discretion by not making findings of fact and conclusions of law. See Linwood,
885 S.W.2d at 103. We overrule Vafaiyan‘s fourth and tenth issues.
X. NO HEARING REQUIRED ON THE MERITS OF THE SEIZURE OF VAFAIYAN’S HOME
In his second issue, Vafaiyan argues that the trial court abused its
discretion by denying his motion for a hearing on the merits of the seizure of his
home.18 Vafaiyan appears to argue that the trial court was required to decide the
case on the merits.
Article 59.05 of the code of criminal procedure, which governs forfeiture
proceedings, states that ―[a]ll cases under this chapter shall proceed to trial in the
same manner as in other civil cases.‖ Tex. Code Crim. Proc. Ann. art. 59.05(b)
(Vernon 2006). The rules of civil procedure provide that a party may file a motion
18
The record contains an ―Order Granting Plaintiff‘s Motion To Sell.‖ In that
order, the trial court states that it held a hearing with all parties present, but no
transcript appears in the record before us. For purposes of Vafaiyan‘s argument,
we will presume that the trial court did not consider Vafaiyan‘s motion at this
hearing.
32
for summary judgment, along with attachments. See generally Tex. R. Civ. P.
166a. If such motion and attachments show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of
law on the issues expressly set out in the motion, then ―[t]he judgment sought
shall be rendered forthwith.‖ Tex. R. Civ. P. 166a(c). If all issues are decided by
summary judgment, no trial is necessary. See generally Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986) (noting that the
―genuine issue‖ summary judgment standard is ―very close‖ to the ―reasonable
jury‖ directed verdict standard and that the inquiry under each is the same:
whether the evidence presents a sufficient disagreement to require submission to
a jury or whether it is so one-sided that one party must prevail as a matter of
law).
Because we have previously held that the trial court properly granted
summary judgment in favor of the State (which included the summary judgment
granting forfeiture of Vafaiyan‘s home as contraband), we hold that the trial court
did not abuse its discretion by not holding a hearing on the merits of the seizure
of Vafaiyan‘s house. See generally Tex. R. Civ. P. 166a. We overrule
Vafaiyan‘s second issue.
33
XI. NO ABUSE OF DISCRETION SHOWN BY DENYING MOTION FOR NEW TRIAL
In his ninth issue, Vafaiyan argues that the trial court abused its discretion
by denying his motion for reconsideration, rehearing, and new trial.19
Specifically, Vafaiyan argues in his brief that the trial court should have granted a
new trial because he submitted new evidence, in the form of two affidavits, that
proves the source of the seized money and that the trial court should have
granted a new trial because the damages were manifestly too large.
Whether a motion for new trial on the ground of newly discovered evidence
will be granted or refused is generally a matter addressed to the sound discretion
of the trial judge, and the trial judge‘s action will not be disturbed on appeal
absent an abuse of discretion. Jackson v. Van Winkle, 660 S.W.2d 807, 809
(Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.2d 715
(Tex. 2003). On review, every reasonable presumption will be made in favor of
orders of the trial judge refusing new trials. Id. at 809–10.
Vafaiyan‘s motion for new trial mentions ―new discover[y].‖ To obtain a
new trial based on newly discovered evidence, Vafaiyan was required to satisfy
the following elements: (1) admissible relevant evidence introduced on the
19
We note that Vafaiyan filed an ―Amended Motion For
Reconsideration/New Trial And Request To Set Aside The Order‖ (hereinafter
referred to as ―motion for new trial‖) and presume that he is arguing that the trial
court abused its discretion by denying this motion, which replaced his prior
motion. See Tex. R. Civ. P. 62 (stating that an amended pleading adds to or
withdraws from that which was previously pleaded to correct or to plead new
matter and completely replaces and supersedes the previous pleading).
34
hearing for new trial demonstrating the existence of newly discovered evidence
relied upon; (2) no knowledge of such evidence until after the conclusion of the
trial and that such evidence could not have been discovered prior to the trial with
the exercise of due diligence; (3) such evidence was not cumulative or to be
used for impeachment; and (4) such evidence would probably produce a different
result if a new trial was granted. Rivera v. Countrywide Home Loans, Inc., 262
S.W.3d 834, 844 (Tex. App.––Dallas 2008, no pet.). Vafaiyan‘s motion for new
trial references two exhibits that are not attached to his motion, but he does not
explain why this evidence could not have been discovered prior to the time his
response was due. Because the evidence is not attached to his motion for new
trial, we cannot tell, and Vafaiyan does not specify, whether it is cumulative or
whether it is to be used for impeachment. Moreover, Vafaiyan has not discussed
how such newly discovered evidence, assuming it exists, would probably
produce a different result if a new trial was granted. Vafaiyan has therefore failed
to satisfy the elements necessary for obtaining a new trial based on newly
discovered evidence. See id. We hold that the trial court did not abuse its
discretion by denying Vafaiyan‘s amended motion for new trial. See id. (holding
that trial court did not abuse its discretion by denying motion for new trial when
elements of newly discovered evidence were not met).
Vafaiyan‘s motion for new trial also contains a one-sentence argument that
―[w]ithout a New Trial, the damages to the defendant would be manifestly too
large.‖ In his brief, Vafaiyan states that ―Rule 320 authorizes a new trial for good
35
cause when damages are manif[e]stly too large‖ and argues that ―forfeiting my 30
years savings to [the S]tate including my house bought 25 years earlier was
manifestly too large.‖
Vafaiyan‘s argument is not supported by case law. Article 59 of the Texas
Code of Criminal Procedure specifically provides that ―[p]roperty that is
contraband is subject to seizure and forfeiture.‖ See Tex. Code Crim. Proc. Ann.
art. 59.02(a). A case filed under article 59 proceeds in rem, against the property
that has been seized. Silver Chevrolet Pickup, 140 S.W.3d at 692. The
forfeiture statutes do not set a dollar limit on what can be forfeited. Additionally,
the forfeiture statutes have not been shown by the clearest proof to be so
punitive in form and effect as to render them criminal. See Fant v. State, 931
S.W.2d 299, 306–07 (Tex. Crim. App. 1996). Considering only the evidence that
is favorable to the award, as we are required to do, see Browning v. Paiz, 586
S.W.2d 670, 675–76 (Tex. Civ. App.––Corpus Christi 1979, writ ref‘d n.r.e.), we
hold that the award is not so excessive that it shocks the conscience. The trial
court thus did not abuse its discretion by denying Vafaiyan‘s motion for new trial
on the ground that the damages were allegedly ―manifestly too large.‖ We
therefore overrule Vafaiyan‘s ninth issue.
36
XII. CONCLUSION
Having overruled each of Vafaiyan‘s issues, we affirm the trial court‘s
summary judgment granted in favor of the State.20
PER CURIAM
PANEL: WALKER, J.; LIVINGSTON, C.J.; and MEIER, J.
DELIVERED: August 31, 2010
20
On November 23, 2009, Vafaiyan filed a motion arguing that part of the
appellate record pertaining to trial court cause number 164,160-C had been lost
or destroyed. We carried that motion to submission and now DENY it as moot
because the appellate record before us contains a second supplemental clerk‘s
record with the necessary documents from 164,160-C. As noted in the analysis
above, any documents mentioned by Vafaiyan in his brief that were not found in
the appellate record were presumed to have been filed and denied; the actual
documents were not necessary for deciding the issues Vafaiyan raised.
37