a Red 2007 Ford F150 Texas License CVZ4082 VIN 1FTRX12W87FB53968 v. State ( 2016 )

Opinion filed August 31, 2016
In The
Eleventh Court of Appeals
__________
No. 11-15-00263-CV
__________
A RED 2007 FORD F150 TEXAS LICENSE CVZ4082
VIN# 1FTRX12W87FB53968, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 25911-B
MEMORANDUM OPINION
Kelly P. Amos appeals from a judgment in which the trial court declared his
red 2007 Ford pickup to be contraband1 and granted the forfeiture2 of the pickup to
1
TEX. CODE CRIM. PROC. ANN. art. 59.01(2)(A)(ii) (West Supp. 2016).
2
Id. art. 59.02.
the State of Texas. Amos asserts four issues on appeal: (1) “Unserved Petition”;
(2) “Vagueness”; (3) “District Clerk’s Refusal of Service”; and (4) “Unfair
Hearing.” We affirm.
I. Background Facts
James A. Davis, an officer with the Abilene Police Department, testified that,
sometime after midnight on the date of the offense, he was dispatched to an alarm
call at Lackey Energy Services on Energy Drive. Officer Davis noticed a pickup
pulling a trailer and leaving the area of Lackey Energy. Officer Davis stopped the
pickup and made contact with Amos, the driver of the pickup. Amos appeared to be
slightly intoxicated, and Officer Davis detained him. When the officers went to
investigate the alarm, they found that the gate to Lackey Energy had been cut and
that the lock on a storage cage where tires were stored had also been cut.
Officer Davis searched the area for possible suspects. Officer Davis ran the
plates on the trailer and discovered that the trailer was registered to Lackey Energy.
Officer Davis discovered other items in the bed of the pickup. Lackey Energy’s
representative arrived and identified not only the trailer, but also items that were in
the pickup bed, as belonging to that business.
When Officer Davis questioned Amos about the ownership of the items,
Amos claimed that the items were his and produced a receipt for some recently
purchased tires, which did not match the tires in the bed of the pickup. Officer Davis
arrested Amos.
Anthony Joeris, a detective in the Crimes Against Property Division of the
Abilene Police Department, testified that he subsequently interviewed Amos about
the events of that night. During the interview, Amos stated that he had been drinking
at a bar when a young man offered to drive Amos’s pickup and take Amos to a local
motel. Amos said that he fell asleep during the ride and that he woke up in a parking
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lot and saw a “security officer” coming his way. The police stopped Amos just after
he left the parking lot.
II. Procedural History
The State of Texas filed the notice of seizure and Detective Joeris’s affidavit
about Amos’s use of the pickup in the theft. Amos received the notice of seizure for
his pickup and filed an answer. However, he did not ask to be present at the
forfeiture hearing. After the hearing, the trial court found the pickup to be
contraband and ordered that it be forfeited to the State. Amos filed a motion for new
trial, which the trial court granted. After another hearing, at which Amos appeared
by telephone, the trial court declared Amos’s red 2007 Ford pickup to be contraband
and granted the forfeiture of the pickup to the State of Texas.
III. Issues Presented
In his first issue, Amos claims that the State failed to diligently serve him with
a “perfected” petition of seizure and failed to exercise reasonable diligence in
requesting a hearing. In his second issue, Amos claims that the evidence was
insufficient to establish the completeness of the theft, that the forfeiture was
excessive, and that the State withheld evidence. In his third issue, Amos asserts that
the district clerk caused delay of service, which caused him harm and violated his
constitutional rights. In his fourth issue, Amos argues that the “telephone hearing”
was unfair and that the trial court was unreasonable when it denied his motion for
discovery.
IV. Discussion and Analysis
We will first address those parts of Issues One through Four in which Amos
failed to preserve error and those parts of Issues Two through Four in which Amos
inadequately briefed issues that were preserved. We will then address the
sufficiency arguments that Amos advances in his second issue.
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A. Issues One through Four: Amos failed to preserve parts of these
issues in the trial court.
In his first issue, Amos complains that the State failed to serve him with a
“perfected” petition and to use reasonable diligence to request a hearing. In his
second, third, and fourth issues, Amos asserts that his constitutional rights against
excessive fines, to a fair trial, and to due process were violated. Rule 33.1 of the
Texas Rules of Appellate Procedure requires, for preservation of a complaint for
appellate review, that the record show:
(1) “the complaint was made to the trial court by a timely request,
objection, or motion”;
(2) “sufficient specificity to make the trial court aware of the
complaint”; and
(3) compliance with “the Texas Rules of . . . Evidence or the Texas
Rules of Civil or Appellate Procedure.”
TEX. R. APP. P. 33.1(a)(1). “[W]e will not review claims not raised below or
presented for appeal.” See Nabelek v. Bradford, 228 S.W.3d 715, 717 (Tex. App.—
Houston [14th Dist.] 2006, pet. denied). As to his first issue, nothing in the record
indicates that the notice of seizure was in fact changed. Furthermore, Amos did not
complain in the trial court about the State’s diligence in requesting a hearing. See
TEX. R. APP. P. 33.1(a)(1)(A). In his second, third, and fourth issues, Amos failed
to make a sufficiently specific request, objection, or motion to inform the trial court
of his complaints. See id. A constitutional claim can be waived if it is not presented
to the trial court. See Hernandez v. State Bar of Tex., 812 S.W.2d 75, 78 (Tex.
App.—Corpus Christi 1991, no writ). We overrule both parts of Issues One and
Issues Two through Four because Amos failed to preserve them for review.
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B. Issues Two through Four: Amos failed to adequately brief parts of
these issues on appeal.
In his second issue, Amos failed to provide any appropriate argument or
authorities to support his contention that the State withheld evidence. See TEX. R.
APP. P. 38.1(h), (i). In his third issue, Amos failed to provide any argument or
authority or cite to any evidence in the record to show that the district clerk delayed
service of process. See id. In his fourth issue, Amos failed to provide any relevant
argument or authority to support his contention that the trial court unreasonably
denied his motion for discovery. See id. Although we liberally construe pro se
briefs, we hold pro se litigants to the same standards as licensed attorneys and require
them to comply with applicable laws and rules of procedure. Mansfield State Bank v.
Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978).
Rule 38 also requires that an appellant provide us with such discussion of the
facts and the authorities relied upon as may be necessary to maintain the point at
issue. See Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118,
128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). In his brief, Amos provides
no citations to the record, which is required for the statement of the case, the
statement of facts, and the argument. See TEX. R. APP. P. 38.1(d), (g), (i). Amos’s
statement of facts was contradicted by the evidence referenced by the State in this
case. See id. at 38.1(g). Because Amos has inadequately briefed these parts of Issue
Two and the remainder of Issues Three and Four, that part of Issue Two and the
remainder of Issues Three and Four are overruled.
C. Issue Two (Sufficiency): The State adduced sufficient evidence that
the pickup was contraband and subject to forfeiture.
Amos asserts in the last part of his second issue that the evidence was
insufficient to prove that he used his pickup during the commission of the theft.
Amos relies on One 1985 Chevrolet v. State to argue that the theft was completed
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the moment that the owner was deprived of his property; therefore, Amos did not
use the pickup in the commission of a theft because Amos was stopped “down the
street.” See One 1985 Chevrolet v. State, 852 S.W.2d 932, 935 (Tex. 1993) (holding
that theft is not a continuing offense for the purposes of civil forfeiture); see also
CRIM. PROC. art. 59.01(2)(A)(ii); TEX. PENAL CODE ANN. § 31.03(a) (West Supp.
2016). As we explain below, we disagree with Amos that there was insufficient
evidence to prove that he used the pickup in the commission of the theft.
1. Standard of Review
The trial court’s findings of fact have the same weight as a jury’s verdict; we
review the legal and factual sufficiency of the evidence used to support them just as
we would review a jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.
1994). For a legal sufficiency review, we review the evidence in a light that supports
the disputed finding and disregard all evidence and inferences to the contrary.
Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). If more than a scintilla of
evidence supports the challenged finding, the challenge must fail. See Wal-Mart
Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003); Gen. Motors Corp. v.
Sanchez, 997 S.W.2d 584, 588 (Tex. 1999). For a factual sufficiency review, we
examine all the evidence in the record, both for and against the lower court’s
findings. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). We must consider and
weigh all such evidence in a neutral light. Golden Eagle Archery, Inc. v. Jackson,
116 S.W.3d 757, 761 (Tex. 2003). When the trial court sits as the factfinder, it is
the sole judge of the witnesses’ credibility, and it may believe one witness over
another; a reviewing court may not impose its own opinion to the contrary. Id. at
761; see City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). When we
consider and weigh the evidence, we will set aside the judgment only if it is so
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contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
2. Applicable Law
Forfeiture proceedings are civil in nature. See CRIM. PROC. art. 59.05(a), (b)
(West 2006). The State must prove by a preponderance of the evidence that probable
cause existed for seizure, that the property is contraband, and that it is subject to
forfeiture.3 See id. arts. 59.02(a), 59.05(b); Fifty-Six Thousand Seven Hundred
Dollars in U.S. Currency v. State, 730 S.W.2d 659, 661 (Tex. 1987) (citing TEX.
CONST. art. I, § 9). To establish probable cause in civil forfeitures, the State must
show “a reasonable belief that ‘a substantial connection exists between the property
to be forfeited and the criminal activity defined by the statute.’” Fifty-Six Thousand
Seven Hundred Dollars in U.S. Currency, 730 S.W.2d at 661 (quoting United
States v. Three Hundred Sixty-Four Thousand Nine Hundred Sixty Dollars
($364,960.00) in U.S. Currency, 661 F.2d 319, 323 (5th Cir. 1981)). “‘Contraband’
means property of any nature, including real, personal, tangible, or intangible, that
is . . . used in the commission of . . . any felony under” Chapter 31 of the Texas Penal
Code. CRIM. PROC. art. 59.01(2)(A)(ii); see PENAL § 31.03.
3. Analysis
In One 1985 Chevrolet, the defendant was conducting a fencing operation out
of her home. 852 S.W.2d at 933. She would then use her vehicle to transport stolen
items for resale. Id. The Supreme Court of Texas held that the vehicle was not
subject to forfeiture under Chapter 59 because the theft was completed before the
defendant loaded her vehicle. Id. Unlike One 1985 Chevrolet, Officer Davis’s
testimony in the present case that a person was not physically able to pick up and
3
Appellant does not challenge the State’s probable cause for the traffic stop, just the connection
between the pickup and the theft.
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walk away with all the stolen items rebuts the theft being completed before the
pickup was used. See 1991 Nissan Pickup, Tex. License #1307YU,
VIN #1N6SD11S6MC365674 v. State, 896 S.W.2d 344, 345 (Tex. App.—Eastland
1995, no writ) (holding that a vehicle was subject to forfeiture because the owner,
charged with possession of heroin, had used the vehicle to purchase and transport
the heroin). Therefore, we hold that there was legally and factually sufficient
evidence from which the trial court could have found that Amos’s pickup was used
before or during the commission of the theft. See id. We overrule the final part of
Appellant’s second issue.
V. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
August 31, 2016
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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