Joe Dray Rushing v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-17-00059-CV
________________________
JOE DRAY RUSHING, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2016-522,855; Honorable Les Hatch, Presiding
January 23, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
This is a restricted appeal following a default judgment. Raising four issues,
Appellant, Joe Dray Rushing, contends (1) he has met the requirements necessary for a
restricted appeal, (2) the trial court erred in entering a default judgment because service
of process was not conducted in strict compliance with Rule 99 of the Texas Rules of Civil
Procedure, (3) the evidence is legally insufficient to support the forfeiture of coins seized,
and (4) the evidence is legally insufficient to support the forfeiture of guns seized. We
affirm the judgment of the trial court.
BACKGROUND
On October 13, 2016, Appellee, the State of Texas, instituted a forfeiture
proceeding against Rushing pursuant to the provisions of chapter 59 of the Texas Code
of Criminal Procedure contending that certain personal property seized by the Lubbock
Police Department on September 22, 2016, was contraband subject to foreclosure.1 That
same day, a deputy district clerk of the Lubbock County District Clerk’s Office issued
citation to be served on Rushing at 7601 Canton Ave., Lubbock, Texas. An Officer’s
Return, attached to the original citation, filed with the Lubbock County District Clerk’s
Office on October 19, 2016, indicates that the citation, with the Plaintiff’s Original Notice
of Seizure and Intended Forfeiture and First Request for Discovery attached, was served
on Rushing at 11:00 a.m., on October 14, 2016, at 1901 Texas Ave., Lubbock, Texas.
On Monday, November 14, 2016, the State of Texas presented to the trial court a
Motion for Default Judgment. Affixed to the motion were copies of (1) Plaintiff’s Original
1 An inventory of the personal property seized, attached to Plaintiff’s Original Notice of Seizure and
Intended Forfeiture and First Request for Discovery, lists the following property: (1) one SAR 1, semi-
automatic 7.62 assault rifle with magazines, serial number S1-38905-2001, (2) one Anderson AM-15, semi-
automatic .223 caliber assault rifle with magazines, serial number 14208F14, (3) one Colt Python, .357
magnum pistol with a four-inch barrel, engraved, serial number 61760, (4) one Colt Python, .357 magnum
pistol with a six-inch barrel, serial number 67674E, (5) one Smith & Wesson Texas Rangers Ed., .357
magnum pistol with case and knife, serial number TR368, (6) 3,611 rounds of 7.62 mm rifle ammunition,
(7) 2,048 rounds of .223 rifle ammunition, (8) three American coin sets, (9) three Wild West coin sets, (10)
one U.S. Silver Dollar coin set, (11) one NRA coin set, (12) nine silver dollars, (13) ten $1.00 gold coins,
(14) five rare 50-cent pieces, (15) six rare coins, (16) ten rare nickels, (17) seven rare dimes, (18) one rare
penny, (19) eighty-eight 50-cent pieces, (20) twelve rare $2.00 bills, (21) one Liberty gun safe, and (22) two
Canon camera lenses.
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Notice of Seizure and Intended Forfeiture and First Request for Discovery, (2) the Seizure
Affidavit of Detective Walter Scott, (3) a schedule of seized property, and (4) the original
Search Warrant leading to the seizure of the property. The court’s file also contained the
original citation with return of service. No further evidence was presented. Thereafter,
on that date, the trial court entered a Default Judgment finding that the property in
question was contraband and forfeiting Rushing’s interest in said property to the State of
Texas “to be distributed in accordance with the inter-local agreement between the
LUBBOCK COUNTY DISTRICT ATTORNEY and the LUBBOCK POLICE
DEPARTMENT in the manner prescribed by Section 59.06, Texas Code of Criminal
Procedure.” Rushing did not timely file a notice or appeal, a request for findings of fact
and conclusions of law, or any other post-judgment motions.
On February 10, 2017, Appellant filed his Notice of Appeal with the Lubbock
County District Clerk. Following a series of procedural maneuvers not relevant to the
disposition of this matter, this court construed that notice as a notice of restricted appeal.
See TEX. R. APP. P. 25.1(d)(7), 30.
RESTRICTED APPEALS
In order to prevail on a restricted appeal, Rushing must establish that: (1) he filed
notice of the restricted appeal within six months after the judgment was signed; (2) he
was a party to the underlying lawsuit; (3) he did not participate in the hearing that resulted
in the judgment being complained of; (4) he did not timely file any notice of appeal, post-
judgment motion, or request for findings of fact and conclusions of law; and (5) the error
being complained of is apparent on the face of the record. See Alexander v. Lynda’s
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Boutique, 134 S.W.3d 845, 848 (Tex. 2004). As to issues two, three, and four, only the
last element is at issue in this proceeding.
Here, the State does not contest the fact that Rushing filed a notice of appeal within
six months after the judgment was signed, that he was a party to the underlying lawsuit
and he did not participate in the hearing that resulted in the judgment being complained
of, and that he did not timely file a notice of appeal, request for findings of fact and
conclusions of law, or any other post-judgment motion. In fact, the State does not even
contest whether the claimed error is apparent on the face of the record. What the State
contests is whether Rushing’s complaints amount to error at all.
ANALYSIS
By his first issue, Rushing contends he has met the procedural requirements to file
a restricted appeal. Because the State does not contest that issue, it is moot.
As to Rushing’s second issue, he contends defective service of process is error
apparent on the face of the record. Specifically, he contends the service of process in
this proceeding is defective because it does not strictly comply with the provisions of the
Texas Rules of Civil Procedure. More specifically, he contends the citation did not contain
the verbatim language mandated by Rule 99, subsection (c) of the Texas Rules of Civil
Procedure. See TEX. R. CIV. P. 99(c). In particular, Rushing claims the notice contained
in the citation as served differed from the notice mandated by Rule 99(c).
The discrepancies between the notice as mandated and the notice as given are,
perhaps, best illustrated by this side-by-side comparison:
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Texas Rules of Civil Procedure, Rule 99(c): Citation Issued:
You have been sued. You may employ an You have been sued. You may employ an
attorney. If you or your attorney do not file a attorney. If you or your attorney do not file a
written answer with the clerk who issued this written answer with the clerk of the court who
citation by 10:00 a.m. on the Monday next issued this citation by 10:00 10 o’clock a.m.
following the expiration of twenty days after on the Monday next following the expiration of
you were served this citation and petition, a 20 (twenty) days after you were have been
default judgment may be taken against you. served with this citation and petition, Original
Notice of Seizure and Intended Forfeiture
and First Request for Discovery, a default
judgment may be taken against you.
(Additions italicized and deletions struck-
through).
In order for a default judgment to withstand a direct attack via a restricted appeal,
strict compliance with the rules governing the issuance and service of process must
affirmatively appear on the face of the record. See PNS Stores, Inc. v. Rivera, 379
S.W.3d 267, 274 (Tex. 2012); Primate Const. Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.
1994). In the context of a restricted appeal, this rule is so strictly followed that there are
no presumptions in favor of valid issuance, service, and return of citation from no-answer
default judgments. Mc Phase II Owner, LLC v. TI Shopping Ctr., LLC, 477 S.W.3d 489,
491 (Tex. App.—Amarillo 2015, no pet.) (citing Fid. & Guar. Ins. Co. v. Drewery Constr.
Co., 186 S.W.3d 571, 573 (Tex. 2006) (per curiam)).
Therefore, turning our attention to the arguments at hand, the question is: does
“strict compliance” require that the notice actually given be verbatim to the notice required
by Rule 99(c)? As can be seen from the side-by-side comparison above, the notice
contained in the citation as issued differs from the notice mandated by Rule 99(c) in five
ways: (1) the citation refers to the clerk of the court; whereas, Rule 99(c) refers simply to
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the clerk; (2) the citation states the time deadline as 10 o’clock; whereas, Rule 99(c) refers
to the time as 10:00 a.m.; (3) the citation refers to the expiration of 20 (twenty) days;
whereas, Rule 99(c) refers to twenty days; (4) the citation references when you . . . were
served; whereas Rule 99(c) references when you . . . have been served; and (5) the
citation refers to service of the Original Notice of Seizure and Intended Forfeiture and
First Request for Discovery; whereas Rule 99(c) simply refers to the petition. Relying on
Becker v. Russell, 765 S.W.2d 899, 901 (Tex. App.—Austin 1989, no writ), Rushing
contends that “virtually any deviation will be sufficient to set aside the default judgment in
a restricted appeal.” Becker, however, did not involve a mere difference in style or word
choice. In Becker, the record showed that the appellant was not served a copy of the trial
court’s order of substituted service, a condition specifically required by the trial court. The
Austin Court of Appeals reasoned that any deviation from the express terms of the order
authorizing substituted service of citation warranted reversal of the default judgment
based upon that service.
Here, we are faced with five minor deviations amounting to nothing more than style
and the clerk’s choice of words. Nothing was lost in translation. The clerk of the court is
the clerk who issued citation regardless of the additional surplusage. Likewise, 10 o’clock
a.m. is the same as 10:00 a.m. to any English-speaking person capable of understanding
Arabic numbers. Similarly, no one is confused by the difference between twenty and (20)
twenty. In the context of this notice, the difference between were and have been is
nothing more than a grammatical preference with no change in the meaning or concept
of the notice being given. And, finally, the difference between the word petition and the
actual title of the petition itself, Original Notice of Seizure and Intended Forfeiture and
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First Request for Discovery, is nothing more than a pellucid substitution of names. Taken
individually or together, there is nothing significant about these discrepancies. They are
not misleading, inaccurate, or incongruous. “Even strict compliance does not require
such absolute obeisance to the minutest detail.” See Herbert v. Greater Gulf Coast
Enters., 915 S.W.2d 866, 871 (Tex. App.—Houston [1st Dist.] 1995, no writ). See also
Williams v. Williams, 150 S.W.3d 436, 443-44 (Tex. App.—Austin 2004, pet. denied).
Therefore, as to Rushing’s second issue, we conclude the complained-of discrepancies
with respect to the citation issued in this case do not constitute a violation of the
requirement of strict compliance. Because these discrepancies do not constitute error,
they do not establish “error apparent on the face of the record.” Issue two is overruled.
By his third and fourth issues, Rushing contends the evidence is legally insufficient
to support the forfeiture of coins seized (issue three) and guns seized (issue four). While
a restricted appeal affords an appellant the same scope of review as an ordinary appeal,
including a challenge to the sufficiency of the evidence supporting the contested order or
judgment; Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)
(per curiam) (discussing a writ of error review), our review is still “limited to errors apparent
on the face of the record.” Drewery Const. Co., 186 S.W.3d at 573; Lynda’s Boutique,
134 S.W.3d at 848. For the purpose of our review, “the face of the record” includes all
documents and papers on file in the appellate record, including the clerk’s and reporter’s
records, if any. See Norman Commc’ns, 955 S.W.2d at 270.
In reviewing a record to determine if legally insufficient evidence is apparent from
the face of that record, an appellate court may make that finding only when (a) there is a
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complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact, (c) the
evidence offered to prove a vital fact is no more than a mere scintilla of evidence, or (d)
the evidence conclusively establishes the opposite of the vital fact in question. King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030,
124 S. Ct. 2097, 158 L. Ed. 2d 711 (2004).
Therefore, as a threshold question, we must determine whether Rushing’s claim
of legal insufficiency of the evidence is a matter apparent on the face of the record. To
make that determination, we must evaluate the record against the elements of a valid
forfeiture proceeding to determine the necessary “vital facts.” In that regard, we start with
the premise that in this case the State's right to bring a forfeiture proceeding exists by
virtue of statute, chapter 59 of the Texas Code of Criminal Procedure, and not by virtue
of the constitution or common law. See TEX. CODE CRIM. PROC. ANN. arts. 59.01-.14
(West 2018). See also 1976 Harley Davidson Motorcycle v. State, 106 S.W.3d 398, 401
(Tex. App.—Corpus Christi 2003, no pet.); State v. Benavides, 772 S.W.2d 271, 273 (Tex.
App.—Corpus Christi 1989, writ denied). As such, we employ rules of strict construction.
1976 Harley Davidson Motorcycle, 106 S.W.3d at 402; State v. Lot 10, Pine Haven
Estates, 900 S.W.2d 400, 402 (Tex. App.—Texarkana 1995, no writ).
Pursuant to chapter 59, property, including currency, is subject to seizure and
forfeiture if it is found to be “contraband.” TEX. CODE CRIM. PROC. ANN. art. 59.02(a) (West
2018). Contraband is property used or intended to be used in the commission of certain
felonies or proceeds derived from those felonies. TEX. CODE CRIM. PROC. ANN. art.
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59.01(2)(A)-(D) (West 2018); State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex.
2004). For purposes of this particular forfeiture proceeding, the requisite felony offense
alleged was possession of a controlled substance—hallucinogenic mushrooms
containing psilocybin—Penalty Group 2. See TEX. HEALTH & SAFETY CODE ANN. §§
481.116 (West 2017); TEX. CODE CRIM. PROC. ANN. art. 59.01(2)(B)(1) (West 2018).
Additionally, in order to forfeit property, the State must show a “substantial connection or
nexus” between the property and the illegal activity.” $27,920.00 in U.S. Currency v.
State, 37 S.W.3d 533, 535 (Tex. App.—Texarkana 2001, pet. denied).
In this case, the face of the record includes the Seizure Affidavit of Detective Scott,
wherein he contends the guns were used or intended to be used in the commission of a
felony under chapter 481 of the Texas Health and Safety Code. He also contends that
both the guns and the coins were proceeds gained from the commission of a felony under
that chapter or they were acquired with proceeds gained from the commission of a felony
under that chapter. Detective Scott further notes that the guns were located in the same
area where the controlled substance was being grown. In addition to the controlled
substance itself and the items seized, the search also revealed a “substantial quantity of
growing apparatus, paraphernalia, and literature regarding the production of mushrooms
which contain psilocybin, a known hallucinogen.” Detective Scott further relied upon the
statement of an informant who had purchased illegal mushrooms from Rushing.
As to the “substantial connection or nexus” element, the affidavit of Detective Scott
stated that controlled substances are not only purchased with U.S. currency, but they are
also “bartered for with items of value, such as the items being seized listed in the schedule
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of this affidavit.” He further stated that “firearms are often possessed and carried by
persons who manufacture and deliver controlled substances to protect the substances
and the proceeds of sale of said substances.” Detective Scott also stated that, based on
his experience as a narcotics officer, the items seized were “proceeds from the sales of
controlled substances, whether bartered or purchased with currency.”
Because these uncontested facts establish a prima facie case for forfeiture of the
seized items as contraband, legal insufficiency of the evidence is not an error apparent
from the face of the record. Accordingly, issues three and four are overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
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