Five Thousand Nine Hundred and Seven Dollars v. State ( 2014 )

AFFIRM; and Opinion Filed December 5, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01367-CV
FIVE THOUSAND NINE HUNDRED AND SEVEN DOLLARS
($5,907) IN UNITED STATES CURRENCY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-12-06641
MEMORANDUM OPINION
Before Justices Francis, Myers, and Brown
Opinion by Justice Francis
Noe Delarosa appeals the trial court’s judgment, which found $5,907 in United States
currency to be contraband and subject to forfeiture. The money was seized from Delarosa by
police following his arrest for possession of a controlled substance. Delarosa contends the State
failed to establish probable cause that a substantial connection exists between the $5,907 and the
untried possession offense. We affirm.
The officers who stopped and arrested Delarosa testified at the forfeiture trial. They
stopped him as he was driving through downtown Dallas because the music being played in his
vehicle was so loud it was “echoing through downtown” and causing a disturbance. Officers
identified Delarosa, determined that he had a number of outstanding warrants, and arrested him.
When asked if there was anything in the vehicle that the police needed to know about, Delarosa
stated he had some weed in a black backpack. In fact, the backpack found in the vehicle
contained marijuana in several baggies, a large number of empty baggies (including 76 “dime”
bags used in the sale of crack cocaine), log sheets for narcotics transactions, a scale, measuring
spoons, and the $5,907. The scale contained cocaine residue; the spoons and some of the bags
contained marijuana residue.
Delarosa was in federal custody on an unrelated offense at the time of trial. He testified
by telephone, stating that after he was placed under arrest and handcuffed, the officers searched
him and took nearly $6,000 from his pockets. He testified that he was carrying that large amount
of cash because he was working “some pretty big jobs” close to where he was pulled over, and
he had just been paid. Delarosa also said he had corresponded with his customers and his lawyer
to obtain proof that the cash he was carrying that day was payment for work he had performed.
He testified that his lawyer had documentation from those customers, and he had been counting
on his lawyer to handle the trial for him. But Delarosa was not represented at the forfeiture trial.
In rebuttal, the State re-called the arresting officer, who testified that no money was taken
from Delarosa’s pockets when he was arrested.
The State argued the evidence seized from Delarosa’s backpack established that he was
selling both cocaine and marijuana. According to the State, the proximity of the cash to the
drugs and drug paraphernalia established that the cash was drug money—earned by selling
cocaine and marijuana—that should be forfeited.
Delarosa told the trial court he would present evidence to show the money was
legitimately earned. However, our record does not include a motion for new trial or any other
post-judgment filing in the trial court whereby such evidence could have been presented to the
trial court. Delarosa did attach to his notice of appeal two letters from businesses confirming
that he had worked for them doing general contract work and that they had paid him a total of
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$7,700. However, these letters are not part of our record, and we may not consider them in our
review. See Perry v. Kroger Stores Store No. 119, 741 S.W.2d 533, 534 (Tex. App.—Dallas
1987, no writ) (documents attached to brief cannot be considered); see also Watts v. Hancock,
No. 05-12-01635-CV, 2014 WL 2807955, at *2 (Tex. App.—Dallas June 18, 2014, no pet.)
(documents attached to notice of appeal cannot be considered).
Property that is contraband is subject to seizure and forfeiture. TEX. CODE. CRIM. PROC.
ANN. art. 59.02(a) (West Supp. 2014). The statutory definition of contraband includes any
property used or intended to be used in the commission of a felony under chapter 481 of the
Texas Health and Safety Code, the Texas Controlled Substances Act. TEX. CODE. CRIM. PROC.
ANN. art. 59.01(2)(B)(i). Possession of marijuana greater than four ounces is a state jail felony
for which the forfeiture statute applies. See id.; TEX. HEALTH & SAFETY CODE ANN. § 481.121
(West 2010). In a forfeiture proceeding, the burden is on the State to establish there was
probable cause to seize the property; in this context, probable cause is a reasonable belief that a
substantial connection exists between the property to be forfeited and criminal activity defined
by statute. Fifty-Six Thousand Seven Hundred Dollars in U.S. Currency v. State, 730 S.W.2d
659, 661 (Tex. 1987).
In his first appellate issue, Delarosa contends the State failed to establish the necessary
connection between the $5,907 and the untried charge that he possessed more than four ounces
of marijuana. We disagree. The State offered evidence that the money was found in the same
backpack as the marijuana and its associated paraphernalia. The arresting officer testified that
the presence of the scale, spoons, and dime bags—as well as the log of transactions recording
payments he had received—indicated Delarosa was selling drugs and the money was payment
for those sales. Although Delarosa contended the money was payment for legitimate work, he
offered no evidence other than his own testimony of such a connection. We conclude the State
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established a reasonable belief that the $5,907 was substantially connected to Delarosa’s
possession of the marijuana. We overrule his first issue.
In his second issue, Delarosa states he has “a statutory right to compel the agency to
proceed by judicial forfeiture.” The complaint lacks clarity, in the first instance, because the
State did proceed by judicial process. Delarosa’s legal authority is not helpful either: he cites
two cases addressing default judgments, although his case was not resolved by default. He also
cites a case concerning the requirement of notice to satisfy due process. In his summary of
argument, Delarosa states that his notice of the forfeiture proceeding was served at a residential
address although the police and district attorney knew he was in federal custody. But Delarosa
made no complaint concerning notice at trial. To the contrary, he appeared at trial by telephone,
and he testified that he had been in contact with witnesses and with his attorney concerning
gathering evidence for trial. Although Delarosa stated he thought his attorney would be present,
he did not complain that he lacked notice of the nature or timing of the trial. To the extent
Delarosa’s second issue is a complaint that he received inadequate notice of the forfeiture
proceeding, we conclude he did not preserve that complaint for our review. See Prade v. Helm,
725 S.W.2d 525, 527 (Tex. App.—Dallas 1987, no writ) (complaint of inadequate notice under
rules of civil procedure is waived absent timely and specific objection). We overrule his second
issue.
We affirm the trial court’s judgment.
/Molly Francis/
MOLLY FRANCIS
JUSTICE
131367F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
FIVE THOUSAND NINE HUNDRED On Appeal from the 160th Judicial District
AND SEVEN DOLLARS ($5,907) IN Court, Dallas County, Texas
UNITED STATES CURRENCY, Appellant Trial Court Cause No. DC-12-06641.
Opinion delivered by Justice Francis.
No. 05-13-01367-CV V. Justices Myers and Brown participating.
THE STATE OF TEXAS, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee THE STATE OF TEXAS recover its costs of this appeal
from NOE DELAROSA.
Judgment entered this 5th day of December, 2014.
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