One Thousand Three Hundred Fifty Four United States Dollars v. State of Texas ( 2008 )

Opinion filed March 27, 2008

Opinion filed March 27, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-06-00310-CV

                                                      _________

                     ONE THOUSAND THREE HUNDRED FIFTY FOUR

                               UNITED STATES DOLLARS, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                           On Appeal from the 3rd District Court

                                                       Anderson County, Texas

                                                   Trial Court Cause No. 40,158

                                              M E M O R A N D U M   O P I N I O N

This appeal arises from a civil forfeiture proceeding brought under Tex. Code Crim. Proc. Ann. ch. 59 (Vernon 2006 & Supp. 2007).  The trial court entered a default judgment in which it forfeited $1,354 in U.S. currency seized from Brandon Keione Williams.  Williams challenges the default judgment in a single issue.  We affirm.

                                                               Background Facts

The State initiated the underlying action to forfeit the currency by filing a Anotice of seizure and intended forfeiture@ on February 1, 2006.  The State alleged in the pleading that the currency was contraband as defined by Article 59.01.  The State attached the affidavit of Officer Jason Waldon of the Palestine Police Department to the pleading in support of its allegations.  Officer Waldon stated in the affidavit that he seized the currency from Williams at the time of his arrest on January 26, 2006.  Officer Waldon arrested Williams after pursuing him first by vehicle and then on foot after Williams fled his vehicle after stopping.  A search of the vehicle operated by Williams revealed a plastic bag containing cocaine residue and another plastic bag containing marihuana.  Officer Waldon stated that he believed that the currency was the proceeds from the commission of a felony.

Williams was served with citation and a copy of the State=s pleading on February 2, 2006, while incarcerated in the Anderson County Jail. The citation specified that, if Williams or his attorney did not file a written answer by 10:00 a.m. on the Monday next following the expiration of twenty days after he was served, a default judgment may be taken against him.  The return of citation was filed with the clerk on February 13, 2006.  Williams did not file an answer in the cause.  The State filed a motion for Ano answer default judgment@ on September 18, 2006. The trial court granted the State=s motion by entering a default judgment against Williams on September 25, 2006.

On October 19, 2006, Williams filed a pro se pleading entitled AEx Parte Petition to Appeal an Order on Default Judgment.@ Williams acknowledged in this pleading that he was served with citation.  He alleged that the currency was not contraband because it came from the sale of a litter of Apedigree [p]itt bull puppies@ and money earned at his uncle=s car wash.  He further alleged that he had been at a disadvantage due to his lack of education and incarceration.

                                                                        Analysis

Forfeiture proceedings of seized property are civil in nature.  Article 59.05(b).  In a forfeiture proceeding, the State must prove by a preponderance of the evidence that the property seized is contraband and, therefore, that the property is subject to forfeiture. Articles 59.02(a), 59.05(b); $162,950 in Currency of the U.S. v. State, 911 S.W.2d 528, 529 (Tex. App.CEastland 1995, writ denied).

Williams asserts in a single issue that the forfeiture of the currency was not Ain the interest of justice@ and that he is entitled to recover the money.  Williams is essentially attempting to relitigate the factual determination that the currency constituted contraband.  As noted previously, Williams failed to timely file an answer to the State=s notice of seizure and intended forfeiture.  A no‑answer default judgment is properly granted if (1) the plaintiff files a petition that states a cause of action, (2) the petition invokes the trial court=s jurisdiction, (3) the petition gives fair notice to the defendant, and (4) the petition does not disclose any invalidity of the claim on its face. See Texaco, Inc. v. Phan, 137 S.W.3d 763, 769 (Tex. App.CHouston [1st Dist.] 2004, no pet.).  If the facts set out in the petition allege a cause of action, a default judgment conclusively establishes the defendant=s liability.  Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984). The non‑answering party is deemed to have admitted all facts properly pleaded. Holt Atherton Indus., Inc.  v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).  Consequently, the non‑answering party is precluded from challenging the sufficiency of the evidence supporting his liability. Phan, 137 S.W.3d at 770.

The State=s pleading in this case gave Williams fair notice of the State=s claims regarding the forfeiture of the currency that Officer Waldon recovered during the search and appellant=s arrest on January 26, 2006.  The State=s notice and the attached sworn affidavit of Officer Waldon fulfilled the statutory and evidentiary requirements for a forfeiture action.  Accordingly, Williams=s evidentiary challenge is overruled.

We further note that Williams did not file a motion for new trial to set aside the default judgment.  Moreover, the allegations set out in his AEx Parte Petition to Appeal an Order on Default Judgment@ do not establish that his failure to file an answer was not intentional or the result of conscious indifference.  See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).  ANot understanding a citation and then doing nothing following service does not constitute a mistake of law that is sufficient to meet the Craddock requirements.@  In re R.R., 209 S.W.3d 112, 115 (Tex. 2006).  Appellant=s sole issue is overruled.

                                                               This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

March 27, 2008

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.