$990.00 in U.S. Currency, Garmin Nuvi GPS, Garmin Large Screen GPS, and KD Android Computer Tablet v. State ( 2015 )

ACCEPTED
06-14-00085-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
3/3/2015 9:03:24 AM
DEBBIE AUTREY
CLERK
ORAL ARGUMENT WAIVED
FILED IN
6th COURT OF APPEALS
CAUSE NO. 06-14-00085-CV TEXARKANA, TEXAS
3/3/2015 9:03:24 AM
IN THE DEBBIE AUTREY
Clerk
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________
$990.00 IN U.S. CURRENCY, GARMIN NUVI GPS, GARMIN LARGE SCREEN
GPS, AND KD ANDROID COMPUTER TABLET, Appellant
V.
THE STATE OF TEXAS, Appellee
____________________________________________________________
ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
LAMAR COUNTY, TEXAS
TRIAL COURT NO. 83660; HONORABLE WILLIAM H. HARRIS
____________________________________________________________
APPELLEE’S (STATE’S) BRIEF
____________________________________________________________
Respectfully submitted,
Gary D. Young, County and District Attorney
Lamar County and District Attorney’s Office
Lamar County Courthouse
119 North Main
Paris, Texas 75460
(903) 737-2470
(903) 737-2455 (fax)
ATTORNEYS FOR THE STATE OF TEXAS
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and
counsel is not required to supplement or correct the appellant’s list.
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TABLE OF CONTENTS
PAGE NO.:
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT REGARDING ORAL ARGUMENT . . . . . vii
ISSUES PRESENTED IN REPLY . . . . . . . . . . . . . . . . . . . viii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . 7
ARGUMENT AND AUTHORITIES
GLOBAL RESPONSE PRESENTED IN REPLY: AS
A PRO SE LITIGANT, THE APPELLANT,
DAUGHERTY, SHOULD BE HELD TO
THE SAME STANDARD AS A LICENSED
ATTORNEY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ISSUE PRESENTED IN REPLY NO. 1: THE TRIAL
COURT DID NOT ABUSE ITS DISCRETION IN
DENYING THE APPELLANT’S MOTION
FOR CONTINUANCE. . . . . . . . . . . . . . . . . . . . . . . 9
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PAGE NO.:
ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL
COURT DID NOT ABUSE ITS DISCRETION
IN NOT APPOINTING COUNSEL, AS REQUESTED
BY THE APPELLANT, DAUGHERTY. . . . . . . . 15
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 18
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . 19
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
$800 in U.S. Currency v. The State of Texas, No. 06-05-00068-
CV, 2005 Tex. App. LEXIS 9730 (Tex. App.--Texarkana
November 22, 2005, no pet.) (not designated for publication).
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INDEX OF AUTHORITIES
CASES: PAGE:
$567.00 in United States Currency v. State, 282 S.W.3d
244, 246, 247 (Tex. App.--Beaumont 2009, no pet.)
(citing Tex. Code Crim. Proc. Ann. art. 59.05(b)
(Vernon 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,16,17
$800 in U.S. Currency v. The State of Texas, No.
06-05-00068-CV, 2005 Tex. App. LEXIS 9730 *8 (Tex.
App.--Texarkana November 22, 2005, no pet.) (not
designated for publication) (MORRISS, C.J.) . . . . . . 16,17,21
Carillo v. State, 98 S.W.3d 789, 794 (Tex. App.--Amarillo
2003, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Foster v. Williams, 74 S.W.3d 200, 202 (Tex. App.--
Texarkana 2002, pet. denied) . . . . . . . . . . . . . . . . . . . 9
Gebhardt v. Gallardo, 891 S.W.2d 327, 330 (Tex. App.--San
Antonio 1995, orig. proceeding) . . . . . . . . . . . . . . . . 12
In re Estate of Taylor, 305 S.W.3d 829, 836, 837 (Tex. App.--
Texarkana 2010, no pet.) (Moseley, J.). . . . . . . . . . . . 8,9,13
In re Gore, 251 S.W.3d 696, 699 (Tex. App.--San Antonio
2007, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . 12
In the Interest of R.A.L., 291 S.W.3d 438, 447-48 (Tex. App.
--Texarkana 2009, no pet.) (Moseley, J.) (Lamar
County) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
McInnis v. State, 618 S.W.2d 389, 392, 393 (Tex. App.--Beaumont
1981, writ ref’d n.r.e.), cert. denied, 456 U.S. 976,
102 S. Ct. 2242, 72 L. Ed. 2d 851 (1982) . . . . . . . . . . 12,13,14
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PAGE NO.:
Myrick v. State, 412 S.W.3d 60, 66 (Tex. App.--Texarkana
2013, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Sandoval v. Rattikin, 395 S.W.2d 889, 893-94 (Tex. Civ.
App.--Corpus Christi 1965, writ ref’d n.r.e.) . . . . . . . 16
Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) . . . . . 9
STATUTES: PAGE:
TEX. CODE CRIM. PROC. ANN. ART. 59.05(b) (VERNON
2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,15
TEX. R. APP. P. 38.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9
TEX. R. APP. P. 38.1 (i) . . . . . . . . . . . . . . . .. . . . . . . . . . . . 14
TEX. R. APP. P. 38.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . i
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STATEMENT OF THE CASE
This is a civil appeal from the trial court’s final judgment under
Chapter 59 of the Code of Criminal Procedure. See CR, pgs. 51-52.
After a forfeiture hearing, the trial court signed its final judgment on
September 24, 2014. See CR, pgs. 51-52. Robert “Bob” Daugherty
(Daugherty) timely filed his notice of appeal. See CR, pgs. 54-55.
By this pro se appeal, Daugherty raised two (2) issues/points of error.
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STATEMENT REGARDING ORAL ARGUMENT
The State will waive oral argument. See Tex. R. App. P. 38.2.
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ISSUES PRESENTED IN REPLY
GLOBAL RESPONSE PRESENTED IN REPLY: AS A PRO SE
LITIGANT, THE APPELLANT, DAUGHERTY, SHOULD BE HELD
TO THE SAME STANDARD AS A LICENSED ATTORNEY.
ISSUE PRESENTED IN REPLY NO. 1: THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN DENYING THE APPELLANT’S
MOTION FOR CONTINUANCE.
ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN NOT APPOINTING COUNSEL,
AS REQUESTED BY THE APPELLANT, DAUGHERTY.
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CAUSE NO. 06-14-00085-CV
IN THE
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________
$990.00 IN U.S. CURRENCY, GARMIN NUVI GPS, GARMIN LARGE SCREEN
GPS, AND KD ANDROID COMPUTER TABLET, Appellant
V.
THE STATE OF TEXAS, Appellee
____________________________________________________________
ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
LAMAR COUNTY, TEXAS
TRIAL COURT NO. 83660; HONORABLE WILLIAM H. HARRIS
____________________________________________________________
APPELLEE’S (STATE’S) BRIEF
____________________________________________________________
TO THE HONORABLE SIXTH COURT OF APPEALS AT
TEXARKANA:
COMES NOW, the State of Texas, by and through the elected County
and District Attorney of Lamar County, Gary D. Young, and the Lamar
County and District Attorney’s Office, respectfully submits its Appellee’s
(State’s) Brief under Rule 38.2 of the Texas Rules of Appellate Procedure.
Unless otherwise indicated, Robert “Bob” Daugherty will be referred
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to as “the appellant” or “Daugherty” and the State of Texas as “the State.”
STATEMENT OF FACTS
In 2004, Tommy Moore, a detective in the narcotics unit of the Paris
Police Department, (Detective Moore) got information on Daugherty living
on Hampton Road in a trial house and cooking methamphetamine. See RR,
pgs. 10-11. Through an investigation, the police ran a search warrant on the
trailer house and found a very large methamphetamine lab. See RR, pg. 12.
Subsequently, Daugherty was prosecuted in federal court and sentence
to about 115 months in 2005. See RR, pg. 12. Previously, Daugherty had
been to federal prison for distributing methamphetamine. See RR, pg. 12.
In the early part of 2014 (RR, pg. 12), the name of Daugherty started
coming up again as a supplier of methamphetamine in the Paris, Lamar
County area. See RR, pg. 13. In June of 2014, Detective Moore had “gotten
information” that Daugherty was in town, and he went to a friend’s
residence (Mark Callaway) and saw Daugherty’s vehicle, a 2008 silver
Mazda.1 See RR, pg. 14. Detective Moore had information from some users
and dealers of methamphetamine that Daugherty used this Mazda to make
deliveries. See RR, pg. 15.
Detective Moore conducted surveillance on Callaway’s house and
1
See 06-14-00084-CV.
-2-
waited until Daugherty left. See RR, pg. 15. Detective Moore made sure
that Daugherty was driving the 2008 Mazda. See RR, pg. 15. Detective
Moore notified other detectives in the area, and Detective Foreman “got
probable cause to make a traffic stop.” See RR, pg. 15.
According to Detective Moore, there was some paraphernalia and
things found in the vehicle, and methamphetamine was found on
Daugherty’s person. See RR, pg. 15. The police arrested Daugherty and he
was taken to the police department. See RR, pg. 15. Later, Detective
Foreman and Detective Moore searched him more thoroughly and found
methamphetamine in his crotch area. See RR, pg. 17.
The 2008 Mazda was towed to the police department for inventory
because “there were a lot of items in the vehicle.” See RR, pgs. 15-16.
Detective Moore found other paraphernalia in the car, including empty
baggies. See RR, pg. 17. Detective Moore also found “over four grams” of
methamphetamine. See RR, pg. 17. There was $1,500.00 in Daugherty’s
wallet and the other $108.00 in his short’s pocket for a total of $1,608.00.2
Subsequently, the State indicted Daugherty for “over four grams” of
methamphetamine. See RR, pgs. 17-18. At some point, Daugherty wanted
to talk, and he told Detective Moore that “[h]e’s unemployed [and] [b]een
2
See 06-14-00084-CV.
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out of prison for two and a half years[] [and] He’s been selling meth for a
year and a half.” See RR, pg. 18. Daugherty also told Detective Moore that
the money found on him was the result of selling drugs. See RR, pg. 18.
After bonding out (RR, pgs. 19, 21), Detective Moore got word that
Daugherty was in town again and selling in Paris, Texas. See RR, pg. 22.
Detective Moore started conducting surveillance to figure out what vehicle
he was using because the police already had the Mazda. See RR, pg. 23.
Detective Moore figured out that it was a “TrailBlazer” that was
subsequently seized from a co-defendant, Sharon Hollowell Boyd (Boyd),
who also went to federal prison with Daugherty in 2005. See RR, pg. 23.
Detective Moore saw Mark Callaway coming in and out of a motel
room at the “Americas Best Value Inn” (a former “Best Western”). See RR,
pgs. 23-24. Detective Moore saw Daugherty walk out and get in the
TrailBlazer. See RR, pg. 23. “They go to Wal-Mart.” See RR, pg. 23. For
some reason, Mark Callaway walks back to the motel. See RR, pgs. 23-24.
Detective Moore continued to watch Daugherty, who drove over to
the car wash beside “Chicken Express” on Lamar. See RR, pg. 24. The car
wash was a common meeting place for drug dealing. See RR, pg. 24. After
about ten minutes, Daugherty was not washing his car. See RR, pg. 24.
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Instead, Detective Moore saw “a drug deal go down” (RR, pg. 24) involving
a “hand-to-hand transaction” between Daugherty and David Edwards
(Edwards), a known “meth user and meth dealer.” See RR, pg. 25.
Daugherty sold a “quarter ounce” to Edwards. See RR, pg. 27. Daugherty
later confessed to selling to Edwards. See RR, pg. 29.
Detectives Foreman and Amos made contact with Edwards and got
the methamphetamine. See RR, pg. 25. Detective Moore went back to the
motel to deal with Daugherty. See RR, pgs. 25-26. Detective Moore left to
prepare a search warrant for the motel room. See RR, pg. 26. Detective
Moore got the signed search warrant and executed the warrant (RR, pg. 26)
on July 15, 2014. See CR, pg. 6 (affidavit of seizing officer). See also CR,
pg. 8.
When they made entry, Daugherty was sitting by the front door and
Boyd was coming out of the bathroom. See RR, pg. 26. To the left of the
door, Detective Moore found on a desk ten bags containing
methamphetamine, two sets of digital scales, $990.00 in U.S. Currency, a
cutting agent, numerous empty baggies, and a baggie containing blue latex
gloves. See RR, pg. 26. The money “was laying on the table with the
bagged methamphetamine and digital scales.” See RR, pg. 26.
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Detective Moore also found “the two GPSs and the Android” in a
duffel bag in the room over on the far wall.” See RR, pg. 26. “They were
brand new.” See RR, pg. 26. According to Detective Moore, “they were
gained with illegal proceeds from methamphetamine dealing.” See RR, pg.
27.
Forfeiture Proceedings.
On July 23, 2014, the State filed its original notice of seizure and
intended forfeiture. See CR, pgs. 3-11. The District Clerk of Lamar County
prepared a citation and Daugherty was served with process in the Lamar
County jail. See CR, pgs. 12-13. After service, Daugherty filed a pro se
answer. See CR, pgs. 14-17.
On September 24, 2014, the trial court proceeded with a forfeiture
hearing in the cause number underlying this appeal and in cause number
83560 (which underlies cause number 06-14-00084-CV). See RR, pg. 4.
The State called Moore as its only witness; and following that testimony,
both sides rested and closed. See RR, pg. 32.
The trial court then found that the $990.00 in U.S. Currency, the two
Garmin GPSs and the KD Android tablet were contraband, as defined by the
Code of Criminal Procedure. See RR, pg. 32. Also, the trial court found
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that the $1,608.00 in U.S. Currency and the 2008 Mazda were contraband.
See RR, pg. 33. The trial court ordered all contraband forfeited to the State
of Texas. See RR, pgs. 32-33.
On September 24th, the trial court signed its final judgment. See CR,
pgs. 51-52. On or about October 10, 2014, Daugherty filed his notice of
appeal. See CR, pgs. 54-55.
Proceedings in this Court.
On October 15, 2014, Daugherty filed his notice of appeal in this
Court. On or about October 16, 2014, the District Clerk of Lamar County
filed the Clerk’s Record. On or about November 24, 2014, the official court
reporter filed the Reporter’s Record.
On or about January 7, 2015, Daugherty filed his brief. On or about
February 6, 2015, the State filed its motion for extension of time to file its
brief, which this Court granted until March 9, 2015. The State will be filing
its brief before the March 9th deadline.
SUMMARY OF THE ARGUMENT
By this appeal, Daugherty raised two (2) issues/points of error that
should be overruled for the following reasons: (1) the trial court did not
abuse its discretion in overruling the appellant’s, Daugherty’s, motion for
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continuance because (a) it was ineffective due to the fact that the motion was
filed on the day of trial and/or (b) the pendency of the criminal cases did not
affect the contemporaneous civil proceedings.
(2) The trial court did not abuse its discretion in denying the
appellant’s request for a court-appointed attorney because Chapter 59 of the
Texas Code of Criminal Procedure did not provide for appointment of
counsel to represent an indigent person in a forfeiture proceeding.
ARGUMENT AND AUTHORITIES
GLOBAL RESPONSE PRESENTED IN REPLY: AS A PRO SE
LITIGANT, THE APPELLANT, DAUGHERTY, SHOULD BE HELD
TO THE SAME STANDARD AS A LICENSED ATTORNEY.
In his brief entitled “Consideration of the Court,” Daugherty also
asked this Court to “take into consideration his lack of knowledge in the
legal system and his inability to use the law library at his place of
incarceration[,] Lamar County Jail.” See Appellant’s Brief, pg. 5 of 6.
However, the law is well established that pro se litigants are held to the same
standards as licensed attorneys and must comply with all applicable rules of
procedure. See In re Estate of Taylor, 305 S.W.3d 829, 837 (Tex. App.--
Texarkana 2010, no pet.) (Moseley, J.). All applicable rules of procedure
include Rule 38.1(i) of the Texas Rules of Appellate Procedure. See Tex. R.
-8-
App. P. 38.1(i).
A pro se litigant is required to properly present its case on appeal, just
as it is required to properly present its case to the trial court. See Taylor, 305
S.W.3d at 837. If this were not the rule, pro se litigants would benefit from
an unfair advantage over those parties who are represented by counsel. See
id. Therefore, this Court should not make allowances simply because a pro
se litigant was not an attorney. See id (citing Foster v. Williams, 74 S.W.3d
200, 202 (Tex. App.--Texarkana 2002, pet. denied)). “An appellate court
has no duty to perform an independent review of the record and of the
applicable law to determine whether there was error.” See Taylor, 305
S.W.3d at 837.
As articulated above, any “consideration of the court,” as requested by
Daugherty, should be denied. The appellant’s, Daugherty’s, two (2)
issues/points of error should also be denied, as explained below.
ISSUE PRESENTED IN REPLY NO. 1: THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN DENYING THE APPELLANT’S
MOTION FOR CONTINUANCE.
A. Standard of Review: Abuse of Discretion.
This Court reviews a ruling on a motion for continuance for abuse of
discretion. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). The
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trial court’s action will not be disturbed unless the record discloses a clear
abuse of discretion. See id.
B. Here, the Trial Court Did Not Abuse its Discretion.
In applying the applicable standard of review to the facts and
circumstances in the present case, Daugherty represented to the trial court
that he prepared a motion for continuance:
THE COURT: All right. Do you have -- did you prepare
a motion for continuance?
THE RESPONDENT: Yes, sir.
THE COURT: Jason or -- or Chris, would you mind
getting that for me, please?
THE RESPONDENT: There’s one for each case, and a
motion to release of property. Some property needs to be
released.
THE COURT: Thank you, sir. All right. I’ve got before
me in Cause Number 83660 and 83560 motions for continuance
filed by the Respondent. They were just presented to the Court
just this moment.3 The -- the grounds seem to be that -- that the
Respondent is asking me to wait until the criminal cases are
resolved. Is that correct, sir?
THE RESPONDENT: Yes, sir.
See RR, pg. 5.
3
The motion for continuance in cause number 83660 did not appear in the Clerk’s
Record.
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1. The Trial Court Did Not Abuse its Discretion Because the
Motion for Continuance Was Filed on the Day of Trial.
From the exchange above, the trial court could have determined that
the appellant’s motion for continuance was ineffective because it was filed
on the day of trial. See In the Interest of R.A.L., 291 S.W.3d 438, 447-48
(Tex. App.--Texarkana 2009, no pet.) (Moseley, J.) (Lamar County). In
R.A.L., a civil case involving termination of parental rights, the appellant
complained that he was not able to prepare a defense because the trial court
denied his motion for continuance, which was filed on the day of trial. See
id. at 447. On appeal, this Court reasoned that the ineffectiveness of the
motion for continuance was further compounded by the fact that it was filed
on the day of trial. See id. at 448. Based on the circumstances in R.A.L., this
Court could not say that the trial court abused its discretion in denying the
motion for continuance. See id.
As was the case in R.A.L., which involved a motion for continuance
that was filed on the day of trial, this Court should not say that the trial court
abused its discretion in denying the motion for continuance. See id. The
appellant’s, Daugherty’s, motion for continuance was ineffective because it
was filed on the day of trial. See R.A.L., 291 S.W.3d at 448. For that reason,
the appellant’s, Daugherty’s, first issue/point of error should be overruled.
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2. The Pendency of the Criminal Cases Did Not Affect a
Contemporaneous Civil Proceedings.
Even on the merits of the motion, the trial court did not abuse its
discretion because the pendency of a criminal investigation, indictment, or
other proceeding does not affect a contemporaneous civil proceeding based
on the same facts or parties. See, e.g., In re Gore, 251 S.W.3d 696, 699
(Tex. App.--San Antonio 2007, orig. proceeding); Gebhardt v. Gallardo,
891 S.W.2d 327, 330 (Tex. App.--San Antonio 1995, orig. proceeding);
McInnis v. State, 618 S.W.2d 389, 393 (Tex. App.--Beaumont 1981, writ
ref’d n.r.e.), cert. denied, 456 U.S. 976, 102 S. Ct. 2242, 72 L. Ed. 2d 851
(1982). In McInnis, a civil case involving disbarment proceedings, the
appellant argued that the trial court erred in overruling his motion for
continuance. See McInnis, 618 S.W.2d at 392. In McInnis, the appellant
argued that he was entitled to a continuance of the disbarment proceeding
until a final disposition of the criminal case because the pending criminal
case against him involved some of the same accusations (i.e., perjury, as is
made in this proceeding). See id. However, the court of appeals disagreed.
In McInnis, the court of appeals held that even though an indictment
might be pending against an attorney, a suit for his disbarment, on the same
grounds and for the same offense, may be brought and prosecuted to
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judgment. See id. at 393. “If the disbarment trial was continued until all
criminal charges against this attorney were resolved, this disbarment suit
may well be delayed for several months or years.” See id. In McInnis, the
court of appeals found “no constitutional or statutory provisions granting
this appellant the right to choose the case, either criminal or civil, which he
desires to first proceed to trial.” See id. In McInnis, the appellant’s
disbarment proceeding was a separate and distinct matter and completely
independent of any other proceedings which were pending.” See id. In
McInnis, the court of appeals held that there was no showing by appellant
that the trial court abused its discretion in overruling the motion for
continuance. See id.
As in McInnis, a civil case, the same rationale should apply equally to
the civil forfeiture case here. See Tex. Code Crim. Proc. Ann. art. 59.05(b)
(Vernon 2006) (“All cases under this chapter shall proceed to trial in the
same manner as in other civil cases.”). Here, as in McInnis, there was no
showing by appellant, Daugherty, that the trial court abused its discretion in
overruling the motion for continuance. See RR, pg. 6; McInnis, 618 S.W.2d
at 393.
Further, “no constitutional or statutory provisions grant[] this
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appellant the right to choose the case, either criminal or civil, which he
desires to first proceed to trial.” See McInnis, 618 S.W.3d at 393. In his
brief, Daugherty did not cite any contrary authority to McInnis or any other
authority. See Tex. R. App. P. 38.1(i). Rule 38.1(i) of the Texas Rules of
Appellate Procedure stated that the appellant’s brief “must contain a clear
and concise argument for the contentions made, with appropriate citations to
authorities and to the record.” See id. “This requirement is not satisfied by
merely uttering brief, conclusory statements unsupported by legal citations.”
See Taylor, 305 S.W.3d at 836. “Failure to cite legal authority or to provide
substantive analysis of the legal issues presented results in waiver of the
complaint.” See id. In the present case, Daugherty has failed to meet this
requirement. See id.
Even if Daugherty had met this requirement, the result in McInnis
should equally occur here. See McInnis, 618 S.W.2d at 393. As in McInnis,
the trial court did not abuse its discretion in ruling that “the law does not
require a final criminal disposition before we can proceed with the civil
cases, so I’m going to go ahead and go forward with the civil cases today.”
See RR, pg. 6. Because the trial court did not abuse its discretion in
overruling the appellant’s motion for continuance, Daugherty’s first
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issue/point of error should be overruled.
ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN NOT APPOINTING COUNSEL,
AS REQUESTED BY THE APPELLANT, DAUGHERTY.
A. Introduction.
With his second issue/point of error, the appellant, Daugherty faulted
the trial court for not appointing an attorney. See Appellant’s Brief, pg. 4 of
7. In the trial court below, the appellant, Daugherty, stated in open court, “I
would like a court-appointed attorney, if I could.” See RR, pg. 7. The trial
judge responded, “you’re not entitled to court-appointed counsel in these
civil actions, so I will deny that request.” See RR, pg. 7.
B. Chapter 59 Did Not Provide for Appointment of Counsel.
Again, forfeitures filed under Chapter 59 of the Texas Code of
Criminal Procedure are civil cases that proceed in the same manner as other
civil cases. See $567.00 in United States Currency v. State, 282 S.W.3d
244, 246 (Tex. App.--Beaumont 2009, no pet.) (citing Tex. Code Crim. Proc.
Ann. art. 59.05(b) (Vernon 2006)). In $567.00, a forfeiture case, the court of
appeals specifically held that “Chapter 59 does not provide for appointment
of counsel to represent an indigent person in a forfeiture proceeding.” See
$567.00, 282 S.W.3d at 246. In $567.00, the court of appeals reasoned that
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a district judge may appoint counsel for an indigent civil litigant, but the
appellant did not establish that the public and private interests at stake in his
case were so exceptional that the administration of justice would be best
served by appointing a lawyer to represent him. See id. at 246-47. Thus, the
court of appeals concluded that the trial court’s refusal of the appellant’s
request for court-appointed counsel was not an abuse of discretion. See id.
at 247.
Similarly, this Court held in an unpublished opinion that “[w]hile a
trial court may occasionally appoint counsel to represent an indigent party, a
civil litigant has no constitutional right to a free lawyer.” See $800 in U.S.
Currency v. The State of Texas, No. 06-05-00068-CV, 2005 Tex. App.
LEXIS 9730, at * 8 (Tex. App.--Texarkana November 22, 2005, no pet.)
(not designated for publication) (Morriss, C.J.) (citing Sandoval v. Rattikin,
395 S.W.2d 889, 893-94 (Tex. Civ. App.--Corpus Christi 1965, writ ref’d
n.r.e.)). In $800.00, this Court also held that “there is no statutory right to
appointed counsel during a forfeiture proceeding.” See $800 in U.S.
Currency, 2005 Tex. App. LEXIS 9730, at * 8. See Appendix.
Although this unpublished opinion above has no precedential value,
this Court may take guidance from it “as an aid in developing reasoning that
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may be employed.” See Myrick v. State, 412 S.W.3d 60, 66 (Tex. App.--
Texarkana 2013, no pet.) (citing Carillo v. State, 98 S.W.3d 789, 794 (Tex.
App.--Amarillo 2003, pet. ref’d)). In employing the reasoning above,
including the unpublished opinion, this Court should hold that Chapter 59 of
the Texas Code of Criminal Procedure did not provide for the appointment
of counsel, if any, to represent Daugherty in the underlying forfeiture
proceedings. See $567.00, 282 S.W.3d at 246; $800 in U.S. Currency, 2005
Tex. App. LEXIS 9730, at * 8. Accordingly, the appellant’s, Daugherty’s,
second issue/point of error should be overruled.
PRAYER
WHEREFORE PREMISES CONSIDERED, the State of Texas prays
that upon final submission without oral argument, this Court affirm the trial
court’s final judgment of forfeiture, adjudge court costs against the
appellant, and for such other and further relief, both at law and in equity, to
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which it may be justly and legally entitled.
Respectfully submitted,
Gary D. Young
Lamar County & District Attorney
Lamar County Courthouse
119 North Main
Paris, Texas 75460
(903) 737-2470
(903) 737-2455 (fax)
By:________________________________
Gary D. Young, County Attorney
SBN# 00785298
ATTORNEYS FOR STATE OF TEXAS
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
the “Appellee’s (State’s) Brief” was a computer-generated document and
contained 4408 words--not including the Appendix, if any. The undersigned
attorney certified that he relied on the word count of the computer program,
which was used to prepare this document.
______________________________
GARY D. YOUNG
gyoung@co.lamar.tx.us
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CERTIFICATE OF SERVICE
This is to certify that in accordance with Tex. R. App. P. 9.5, a true
copy of the “Appellee’s (State’s) Brief” has been served on the 3rd day of
March, 2015 upon the following:
Robert Daugherty
c/o Lamar County jail
125 Brown Avenue
Paris, TX 75460
______________________________
GARY D. YOUNG
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APPENDIX
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