Texas, the State Of v. Twenty Seven Thousand Four Hundred Forty-Six Dollars and No/100 ($27,446.00) U.S. Currency ( 2000 )

NUMBER 13-99-155-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

THE STATE OF TEXAS

, Appellant,

v.

TWENTY SEVEN THOUSAND FOUR

HUNDRED FORTY-SIX DOLLARS AND

NO/100 ($27,446.00) U.S. CURRENCY

, Appellee.

___________________________________________________________________

On appeal from the 28th District Court of Nueces County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez Opinion by Chief Justice Seerden

This is an appeal from the trial court's order denying the State's attempt to cause the forfeiture of $27,446.00 seized during a traffic stop. By three issues, the State contends that the trial court erred: (1) in finding the evidence insufficient to support forfeiture; (2) in awarding attorney's fees pursuant to Rule 759 of the Texas Rules of Civil Procedure; and (3) in awarding one-half of the amount seized as attorney's fees. We affirm.

Ernesto Villarreal ("claimant") was driving a vehicle on Saratoga Street in Corpus Christi when he was stopped by Officer Harry Villarreal of the Corpus Christi Police Department because it did not have a rear license plate. During the course of the stop, Officer Villarreal discovered an outstanding warrant for claimant's arrest and took him into custody. After conducting a pat-down search of claimant, Officer Villarreal approached the vehicle and encountered claimant's wife, Guadalupe, who was still in the vehicle. Officer Villarreal obtained Guadalupe's consent to search the interior of the vehicle. This search revealed a woman's purse which Officer Villarreal considered suspicious because it was "very round and very thick." Officer Villarreal proceeded to open the purse and discovered what he termed a "substantial amount of U.S. currency."

Villarreal then questioned both claimant and Guadalupe about the source of the money. Both initially reported that the money was the proceeds from the sale of claimant's mother's house. However, after claimant was unable to provide any specific details about the transaction, Officer Villarreal re-questioned Guadalupe. According to Officer Villarreal, Guadalupe told him that she could not lie to him anymore and said that the money had been dropped at their home by an unknown person for transport to an unidentified location in the Rio Grande Valley. Officer Villarreal then seized the money for further investigation and eventual forfeiture. The money was placed in a secured locker. Two days later, a drug dog examined the currency and alerted to the presence of narcotics on the bills. Neither claimant nor Guadalupe was arrested for any offense related to the seizure of the money. The record further reflects that neither Guadalupe nor claimant appeared to recover the seized money. After a hearing on the merits, the trial court entered an order for the return of the seized currency.

By its first issue, the State argues that the trial court erred in finding the evidence insufficient to support forfeiture. If an appellant "attacks the legal sufficiency of the evidence to support an adverse finding on an issue on which it ha[s] the burden of proof, the appellant must demonstrate the evidence conclusively established all vital facts in support of the issue." $18,800 in U.S. Currency v. State, 961 S.W.2d 257, 261 (Tex. App.--Houston [1^st Dist.] 1997, no writ) (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)). In reviewing challenges to the legal sufficiency of the evidence in those circumstances, we must first examine the record for evidence that supports the finding and ignore all evidence to the contrary. Sterner, 767 S.W.2d at 690. If no evidence supports the findings, only then do we look to see if the contrary proposition is established as a matter of law. Id. By contrast, when an appellant challenges the factual sufficiency of the evidence to support an adverse finding, we must consider and weigh all the evidence, both in support of and contrary to the challenged finding. 1985 Cadillac Limousine v. State, 835 S.W.2d 822, 825 (Tex. App.--Houston [1^st Dist.]1992, writ denied). We must uphold the finding unless it is so against the great weight and preponderance of the evidence as to be manifestly unjust. $24,180 v. State, 865 S.W.2d 181, 185 (Tex. App.--Corpus Christi 1993, writ denied).

Forfeiture proceedings regarding seized personal property are civil in their nature. See Tex. Code Crim. Proc. Ann. art. 59.05(b) (Vernon 1999). 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. See Tex. Code Crim. Proc. Ann. arts. 59.02(a) & 59.05(b) (Vernon 1999). The State must show probable cause, or "a reasonable belief that a 'substantial connection exists between the property to be forfeited and the criminal activity defined by the statute.'" State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991). Where, as here, there is no direct evidence linking the seized property to illegal activity, the State must present sufficient circumstantial evidence to connect the property to criminal activity. Forty-Seven Thousand Two Hundred Dollars U.S. Currency v. State, 883 S.W.2d 302, 308 (Tex. App.--El Paso 1994, writ denied).

At the outset, we note that the trial court denied forfeiture. Our review of the record discloses that the nexus between the money and criminal activity comes only from the Officer's surmise. The record shows that Officer Villarreal thought, upon encountering both, that claimant and Guadalupe were nervous. Villarreal also testified to his knowledge that drug trafficking is a relatively common occurrence between Corpus Christi and the Rio Grande Valley. He noted the inconsistent stories related by claimant and his wife. However, there is no evidence that the money was found in proximity to either narcotics or narcotics-related paraphernalia, although a canine did alert on the money when it was examined later. Villarreal also related the fact that no one ever attempted to recover the money.

While the State cites several cases involving one or more of the circumstances found by the officer in this case, each of those cases is distinguishable because the trier of facts in each case found the evidence sufficient to justify forfeiture. The opposite is true in this case.

The trier of facts is the exclusive judge of the credibility of the witnesses and the weight to be given to the testimony. See e.g., Ortiz v. Ford Motor Credit Co., 859 S.W.2d 73, 76 (Tex. App.--Corpus Christi 1993, writ denied). We can reverse the trial court's judgment only if we find the court abused its discretion.

Only the ipsi dixit of Officer Villarreal, that is, his conclusory statement, connects the money to drugs, a statement which does not lead to the inevitable conclusion that such a connection exists. The trial judge, not this Court, had the opportunity to observe the witness, his manner and demeanor, and to judge the credibility of his testimony. We hold the trial court did not abuse its discretion in finding the evidence factually insufficient to establish that proposition. The State's first issue is overruled.

By its second and third issues, the State complains generally of the award of attorney's fees and, more specifically, of the amount of that award. However, because we agree with the trial court's conclusion that forfeiture was not supportable here, we find that the State had no interest in the further disposition of the money. Thus, the State lacks standing to complain here about any subsequent actions taken by the court with regard to this money. See Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 150 (Tex. 1982); Evans v. First Nat'l Bank of Bellville, 946 S.W.2d 367, 372 (Tex. App.--Houston [14^th Dist.] 1997, writ denied). The State's second and third issues are overruled.

The order of the trial court is AFFIRMED.

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ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 25th day of May, 2000.