Doan Phi Nguyen v. State ( 1996 )

TAFT, Justice,

dissenting.

I respectfully dissent. The State argues appellant did not meet his burden of showing the forfeiture was based on the contraband being used in the commission of the offense. I agree.

The default judgment from the forfeiture proceeding does not specify the definition of contraband relied upon by the State. As pointed out in my dissenting opinion in State v. Romero, there are three definitions of contraband, only one of which invokes double jeopardy protection in the situation before us. 907 S.W.2d 858, 863-64 (Tex.App.— Houston [1st Dist.] 1995, pet. filed) (Taft, J., dissenting). The evidence presented at the habeas hearing showed the car in question was used in the commission of the offense for which the State is now prosecuting appellant. This establishes that the State could have employed the “used in the same offense” definition, but it does not rule out the possibility the State could have employed another definition, such as “proceeds from other offenses.”

It is appellant’s burden in a habeas corpus hearing raising double jeopardy to show that the forfeiture and the subsequent criminal prosecution involve the same offense. Appellant has not done so here. Accordingly, I dissent.