2004 Dodge Ram 1500 TX LP CPL1988 and 2000 Buick TX LP CV1N817 v. State

ACCEPTED
03-14-00704-CV
4254339
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/23/2015 9:34:23 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00704-CV
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE 2/25/2015 9:34:23 PM
COURT OF APPEALS JEFFREY D. KYLE
Clerk
OF THE THIRD SUPREME JUDICIAL CIRCUIT
2004 Dodge Ram 1500 TX LP#CPL1988
and 2000 Buick TX LP CV1N8187
v.
The State of Texas
APPELLANT’S BRIEF
Appeal from the 20th Judicial District Court
Milam County, Texas
Trial Court Cause No. CV36,279
LAW OFFICE OF BENTON ROSS WATSON
120 E. 1st Street
P.O. Box 1000
Cameron, Texas 76520
(254) 307-8181
(254) 231-0212—Facsimile
ross@texastopdefense.com
State Bar No. 24077591
ORAL ARGUMENT REQUESTED
NAMES OF THE PARTIES TO THE FINAL JUDGMENT
STATE OF TEXAS
The Honorable W.W. “Bill” Torrey
Milam County District Attorney
204 N. Central.
Cameron, Texas 76520
APPELLANT’S COUNSEL
Benton Ross Watson
120 E. 1st Street
P.O. Box 1000
Cameron, Texas 76520
TRIAL COURT JUDGE
The Honorable John Youngblood
20th District Court Judge
102 S. Fannin Ave., 2nd Floor
Cameron, Texas 76520
2004
DODGE
RAM
1500
V.
STATE—APPELLANT’S
BRIEF
I
TABLE OF CONTENTS
NAMES OF THE PARTIES TO THE FINAL JUDGMENT .... I
TABLE OF CONTENTS ...........................................................II
INDEX OF AUTHORITIES ..................................................... V
REQUEST FOR ORAL ARGUMENT .................................... X
STATEMENT OF THE CASE ................................................. X
ISSUES PRESENTED ............................................................. XI
STATEMENT OF FACTS ........................................................ 1
SUMMARY OF THE ARGUMENT ........................................ 6
ARGUMENT ............................................................................. 7
A. STANDARD OF REVIEW. ................................................. 7
B. SUMMARY JUDGMENT STANDARDS. ......................... 7
I. ISSUE ONE RESTATED: ................................................... 10
THE TRIAL COURT OVERLOOKED THAT
FORFEITURE IS BARRED BY THE LIMITATIONS
DEFENSE. .......................................................................... 10
A. THE STATE DID NOT MEET THE 30-DAY
LIMITATIONS PERIOD. .................................................. 10
1. THE STATE MUST SERVE OWNERS, INTEREST HOLDERS, AND
POSSESSORS WITHIN 30 DAYS OF SEIZURE. ............................. 11
2. THE STATUTE OF LIMITATIONS DEFENSE IS STRICTLY
CONSTRUED. .......................................................................... 12
3. THE STATE FAILED TO SATISFY THE 30-DAY STATUTE OF
LIMITATIONS.......................................................................... 15
B. THE STATE DID NOT USE DUE DILIGENCE AS A
MATTER OF LAW. ........................................................... 17
1. THE STATE OFFERED NO EVIDENCE OF DILIGENCE, AND THE
TRIAL COURT ERRONEOUSLY ASSUMED A VALID EXCUSE. ...... 18
2. CERTIFICATE OF TITLE AND OWNERSHIP ARE IRRELEVANT AS TO
DILIGENCE. ........................................................................... 20
3. THE STATE USED NO CONTINUOUS DUE DILIGENCE TO SEEK
TIMELY SERVICE. ................................................................... 22
2004
DODGE
RAM
1500
V.
STATE—APPELLANT’S
BRIEF
II
II. ISSUE TWO RESTATED: ................................................. 24
GRANTING FINAL SUMMARY JUDGMENT WAS
INAPPROPRIATE BECAUSE ISSUES, CLAIMS, AND
DEFENSES ARE UNRESOLVED. ................................... 24
1. THE STATE’S MOTION FOR SUMMARY JUDGMENT ONLY
CHALLENGES MRS. ALCORN’S USE OF THE INNOCENT OWNER
DEFENSE UNDER 59.02(C). ..................................................... 25
2. MRS. ALCORN PUT EVERYTHING IN ISSUE. ............................. 26
a. The State must conclusively prove that probable cause
existed to seize, and that the property is contraband subject
to forfeiture........................................................................... 26
b. Mrs. Alcorn asserted the limitations defense. ...................... 27
c. Mrs. Alcorn claimed the defense under Article
59.02(h)(1)(C). ..................................................................... 27
d. Mrs. Alcorn claimed the defense of disproportional
forfeiture under the Eighth Amendment. .............................. 28
III. ISSUE THREE RESTATED: ............................................ 31
THE TRIAL COURT’S DECISION TO GRANT
SUMMARY JUDGMENT IN FAVOR OF THE STATE
IS NOT SUPPORTED BY THE EVIDENCE.................... 31
1. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT
FOR THE STATE BECAUSE THE EVIDENCE IS INSUFFICIENT AND
INCOMPETENT. ....................................................................... 31
a. Motion to strike affidavit of Deputy White because it is
based on unverifiable hearsay, and on facts outside his
personal knowledge. ............................................................. 33
b. Motion to strike affidavit because it makes unsubstantiated
legal and factual conclusions ............................................... 34
c. The State’s affidavit does not conclusively establish
probable cause. .................................................................... 38
d. The State’s pleadings, even when sworn, cannot support its
own summary judgment........................................................ 41
e. Deemed Admissions of others are inadmissible against Mrs.
Alcorn. .................................................................................. 41
2. THE STATE NEITHER RAISED NOR PROVED A CLAIM THAT EITHER
SET OF RIMS CONSTITUTES CONTRABAND. ............................. 42
3. THE STATE’S NO-EVIDENCE MOTIONS ERRONEOUSLY EMPLOY
CONFLICTING EVIDENCE, AND GENUINE ISSUES OF MATERIAL
FACT DO EXIST. ...................................................................... 42
2004
DODGE
RAM
1500
V.
STATE—APPELLANT’S
BRIEF
III
IV. REMAINING ISSUES RESTATED: ................................ 47
SUMMARY JUDGMENT SHOULD NOT HAVE BEEN
GRANTED TO THE STATE. ............................................ 47
A. AUTHORITIES APPLYING INNOCENT OWNER
DEFENSE ARE WRONG. ................................................. 47
B. THE PROCEEDINGS WERE UNJUST AND UNFAIR
......................................... ................................................... 51
PRAYER .................................................................................. 54
CERTIFICATE OF SERVICE ................................................ 55
CERTIFICATE OF COMPLIANCE ....................................... 56
APPENDICES ......................................................................... 57
TRIAL COURT ORDERS....................................................... A
ORDER GRANTING SUMMMARY JUDGMENT ....... A-1
ORDER DENYING MOTION FOR NEW TRIAL ......... A-2
MAJOR STATUTORY PROVISIONS ....................................B
TEX. CODE CRIM. PROC. ARTICLE 59.02 ................. B-1
TEX. CODE CRIM. PROC. ARTICLE 59.04 ................. B-2
2004
DODGE
RAM
1500
V.
STATE—APPELLANT’S
BRIEF
IV
INDEX OF AUTHORITIES
Texas Supreme Court Cases
$56,700 v. State,
730 S.W.2d 659 (Tex. 1987) ..................................................................... 26
Binur v. Jacobo,
135 S.W.3d 646 (Tex. 2004). .................................................................... 43
Fairfield Ins. Co. v. Stephens Martin Paving, LP,
246 S.W.3d 653 (Tex. 2008) ..................................................................... 50
Ford Motor Co. v. Ridgway,
135 S.W.3d 598 (Tex. 2004) ..................................................................... 43
G & H Towing Co. v. Magee,
347 S.W.3d 293 (Tex. 2011) (per curiam) ................................................ 24
Hidalgo v. Sur. Sav. & Loan Ass'n,
462 S.W.2d 540 (Tex. 1971) ............................................................... 32, 41
Lehmann v. Har-Con Corp.,
39 S.W.3d 191 (Tex. 2001) ....................................................................... 24
Randall v. Dallas Power & Light Co.,
752 S.W.2d 4 (Tex. 1988) ......................................................................... 31
Sharp v. Stacy,
535 S.W.2d 345 (Tex. 1976) ..................................................................... 50
State v. $ 281,420.00,
312 S.W.3d 547 (Tex. 2010) ..................................................................... 16
State v. $90,235.00,
390 S.W.3d 289 (Tex. 2013) ..................................................................... 26
State v. Silver Chevrolet Pickup,
140 S.W.3d 691 (Tex. 2004) ............................................................... 13, 16
Uvalde Country Club v. Martin Linen Supply Co.,
690 S.W.2d 884 (Tex. 1985) ..................................................................... 20
Texas Court of Criminal Appeals Cases
Caldarera v. State,
504 S.W.2d 914 (Tex. Crim. App. 1974).................................................. 33
Crider v. State,
352 S.W.3d 704 (Tex. Crim. App. 2011).................................................. 40
State v. Duarte,
389 S.W.3d 349 (Tex. Crim. App. 2012)............................................ 38, 39
2004
DODGE
RAM
1500
V.
STATE—APPELLANT’S
BRIEF
V
Stoddard v. State,
475 S.W.2d 744 (Tex. Crim. App. 1972)............................................ 37, 39
Texas Appellate Court Cases
$18,800 v. State,
961 S.W.2d 257 (Tex. App.—Houston 1997, no writ) ............................. 44
$3,639 v. State,
133 S.W.3d 698 (Tex. App.—Corpus Christi 2003, no pet.) ................... 20
$567.00 v. State,
282 S.W.3d 244 (Tex. App.—Beaumont 2009, no pet.). ......................... 35
$6,453.00 v. State,
63 S.W.3d 533 (Tex. App.—Waco 2001, no pet.).................................... 10
1988 Dodge Pickup v. State,
No. 06-06-00011-CV, 2006 Tex. App. LEXIS 10551 (Tex. App.—
Texarkana Dec. 12, 2006, no pet.) (mem. op.) ......................................... 10
2003 Ford Pickup v. State,
No. 04-06-00036-CV, 2007 Tex. App. LEXIS 865 (Tex. App.—San
Antonio Feb. 7, 2007, no pet.) (mem. op.)................................................ 27
Amrani-Khaldi v. State,
575 S.W.2d 667 (Tex. Civ. App.—Corpus Christi 1978, no writ) ........... 26
Anderson v. Royce,
624 S.W.2d 621 (Tex. App.—Houston 1981, writ ref’d n.r.e.) ................ 48
Audish v. Clajon Gas Co.,
731 S.W.2d 665 (Tex. App.—Houston 1987, writ ref’d n.r.e.). ............... 33
Beal Bank v. Gilbert,
417 S.W.3d 704 (Tex. App.—Dallas 2013, no pet.) ................................. 44
Belleza-Gonzalez v. Villa,
57 S.W.3d 8 (Tex. App.--Houston 2001, no pet.)..................................... 20
Bochas v. State
951 S.W.2d 64 (Tex. App.—Corpus Christi 1997, no writ) ..................... 48
Bryant v. Kimmons,
430 S.W.2d 73 (Tex. Civ. App.—Austin [3rd Dist.] 1968, no writ). ....... 25
Dillard v. NCNB Tex. Nat’l Bank,
815 S.W.2d 365 (Tex. App.—Austin [3rd Dist.] 1991, no writ) .............. 31
Feldman v. Mfrs. Hanover Mortg. Corp.,
704 S.W.2d 422 (Tex. App.—Houston 1985, writ ref’d n.r.e.) ................ 41
Fisher v. State,
803 S.W.2d 828 (Tex. App.—Dallas 1991, writ ref’d) ............................ 22
2004
DODGE
RAM
1500
V.
STATE—APPELLANT’S
BRIEF
VI
Furr v. Furr,
721 S.W.2d 565 (Tex. App.—Amarillo 1986, no writ) ............................ 21
Gaston v. State,
641 S.W.2d 261 (Tex. App.—Houston 1982, no writ) ............................. 26
Gonzales v. State,
761 S.W.2d 809 (Tex. App.—Austin [3rd Dist.] 1988, writ ref’d) .......... 40
Gray v. State,
No. 03-99-00235-CV, 1999 Tex. App. LEXIS 8213 (Tex. App.—Austin
[3rd Dist.] Nov. 4, 1999, no pet.) (mem. op., not designated for
publication) ............................................................................................... 26
Harrell v. Hochderffer,
345 S.W.3d 652 (Tex. App.—Austin [3rd Dist.] 2011, no pet.)............... 44
Klein & Assocs. Political Rels. v. Port Arthur Indep. Sch. Dist.,
92 S.W.3d 889 (Tex. App.—Beaumont 2002, pet. denied) ...................... 46
Knox v. Donovan Lowery Ins. Agency,
405 S.W.2d 160 (Tex. Civ. App.—Eastland 1966, no writ) ..................... 18
Manson v. State,
609 S.W.2d 855 (Tex. Civ. App.--Texarkana 1980, no writ) ................... 14
Martinez v. State,
893 S.W.2d 304 (Tex. App.—Corpus Christi 1995, no writ). .................. 13
McKissick v. State,
209 S.W.3d 205 (Tex. App.—Houston 2006, pet. ref'd) .......................... 40
Mitchell v. State,
819 S.W.2d 659 (Tex. App.—El Paso 1991, no writ) .............................. 26
One 1991 Chevrolet Blazer v. State,
905 S.W.2d 443 (Tex. App.—Amarillo 1995, no writ). .......................... 18
One Car, 1996 Dodge X-Cab Truck v. State,
122 S.W.3d 422 (Tex. App.—Beaumont 2003, no pet.) .......................... 28
One Ford Mustang v. State,
231 S.W.3d 445 (Tex. App.—Waco 2007, no pet.).................................. 52
Roberts v. Padre Island Brewing Co.,
28 S.W.3d 618 (Tex. App.—Corpus Christi 2000, pet. denied). .............. 22
State v. Lot 10, Pine Haven Estates,
900 S.W.2d 400 (Tex. App.--Texarkana 1995, no writ) ........................... 12
State v. Park,
820 S.W.2d 948 (Tex. App.—Texarkana 1991, no writ) ......................... 13
Windle v. Mary Kay, Inc.,
No. 05-02-00252-CV, 2003 Tex. App. LEXIS 5594 (Tex. App.—Dallas
July 1, 2003, pet. denied) (mem. op.) ....................................................... 22
2004
DODGE
RAM
1500
V.
STATE—APPELLANT’S
BRIEF
VII
United States Supreme Court Cases
Sgro v. United States,
287 U.S. 206 (1932) .................................................................................. 40
Spinelli v. United States,
393 U.S. 410 (1969) .................................................................................. 39
United States v. Bajakajian,
524 U.S. 321 (1998) ............................................................................ 28, 29
United States Constitution
U.S. CONST. amend. IV .......................................................................... 39, 40
U.S. CONST. amend. VIII........................................................................ III, 28
U.S. CONST. amend. VIII.............................................................................. 28
Texas Court of Criminal Appeals Cases
TEX. CONST. art. I, § 21 .......................................................................... 49, 51
TEX. CONST. art. I, § 9 .................................................................................. 26
TEX. CONST. art. XVI, § 15........................................................................... 51
Texas Code of Criminal Procedure
TEX. CODE CRIM. PROC. ANN. art. 59.01(2) .................................................... 7
TEX. CODE CRIM. PROC. ANN. art. 59.01(6) .................................................... 8
TEX. CODE CRIM. PROC. ANN. art. 59.02(a) .................................................... 7
TEX. CODE CRIM. PROC. ANN. art. 59.02(c) ........................................... passim
TEX. CODE CRIM. PROC. ANN. art. 59.02(d) .................................................. 16
TEX. CODE CRIM. PROC. ANN. art. 59.02(h)(1)(C) .............................. 3, 26, 27
TEX. CODE CRIM. PROC. ANN. art. 59.04(a). ................................................. 10
TEX. CODE CRIM. PROC. ANN. art. 59.04(b). ..................................... 11, 14, 15
TEX. CODE CRIM. PROC. ANN. art. 59.04(c). ..................................... 11, 15, 20
TEX. CODE CRIM. PROC. ANN. art. 59.04(j)....................................... 11, 15, 16
TEX. CODE CRIM. PROC. ANN. art. 59.04(k) ............................................ 22, 23
Other Texas Statutes
TEX. FAM. CODE ANN. § 3.102 ..................................................................... 15
TEX. FAM. CODE ANN. § 3.201 ..................................................................... 48
TEX. FAM. CODE ANN. § 3.202 ......................................................... 47, 48, 49
TEX. FAM. CODE ANN. § 3.003 ..................................................................... 44
TEX. FAM. CODE ANN. § 3.406 ..................................................................... 51
2004
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RAM
1500
V.
STATE—APPELLANT’S
BRIEF
VIII
TEX. FAM. CODE ANN. § 7.001 ..................................................................... 51
TEX. PENAL CODE ANN. § 39.03 ................................................................... 53
Texas Rules of Civil Procedure
TEX. R. CIV. P. 114 ....................................................................................... 22
TEX. R. CIV. P. 115 ....................................................................................... 22
TEX. R. CIV. P. 116 ............................................................................. 2, 19, 22
TEX. R. CIV. P. 166a(c) .......................................................................... passim
TEX. R. CIV. P. 166a(f) ............................................................... 31, 34, 37, 38
TEX. R. CIV. P. 166a(i).................................................................................... 8
TEX. R. CIV. P. 198.3 .................................................................................... 25
Other Authorities
United States v. Wagner,
989 F.2d 69, 75 (2d Cir. 1993).................................................................. 40
Don Clemer and Ann B. White, Texas District & County Attorneys
Association, Guide to Asset Seizure and Forfeiture, at 31 (2010) 11, 15, 53
Patrick Henry, An Appeal to Arms, Address at the Virginia Convention
(March 23, 1775) in Charles Morris, Famous Orators of the World and
Their Famous Orations 21 (John C. Winston ed., 1902) ......................... 54
2004
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RAM
1500
V.
STATE—APPELLANT’S
BRIEF
IX
REQUEST FOR ORAL ARGUMENT
TO THE HONORABLE COURT:
Appellant requests that oral argument be granted. Argument would
benefit the Court because issues of first impression are involved, statutory
and constitutional provisions that lack judicial interpretation are implicated,
and the underlying circumstances are easier understood verbally.
STATEMENT OF THE CASE
This case primarily challenges a trial court’s grant of summary
judgment in favor of the State within a forfeiture suit under Chapter 59,
Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. arts.
59.01-59.04. (See Appendices A-1 and A-2 for order granting summary
judgment, and order denying motion for new trial.)
2004
DODGE
RAM
1500
V.
STATE—APPELLANT’S
BRIEF
X
ISSUES PRESENTED
I. The trial court erred by granting summary judgment for Plaintiff
because Defendant’s evidence conclusively proved, or raised a fact
issue on, every element of the statute of limitations defense.
II. The trial court erred by granting full and final summary judgment
because all issues, claims, and defenses were not decided.
III. The trial court erred by granting summary judgment for Plaintiff
because evidence supporting Plaintiff’s summary judgment was
incompetent and insufficient.
IV. Summary judgment was premature because the case was still
developing, the state did not comply with discovery, evidence
discovered after the trial court’s order of summary judgment shows
this, and Defendant was not provided a fair opportunity to investigate
and develop the case—due to the fault of Plaintiff.
V. Summary judgment could not have been granted based on authorities
analyzing a spouse’s right to utilize an innocent owner defense because
those authorities are wrong, and should be overruled.
VI. Summary judgment should not have been granted for Plaintiff for any
other reason.
2004
DODGE
RAM
1500
V.
STATE—APPELLANT’S
BRIEF
XI
STATEMENT OF FACTS
Seizure. On the morning of March 6, 2014, LaToya Alcorn sits in a
modest wood framed house at 624 N. Wilcox in Rockdale, Texas, that she,
her two children, and her husband, Sedderick Alcorn, call home. (I C.R. 216,
225-27, 306) Before ending a visit with her mother, Norma Williams, and
heading off to work, a gang of law enforcement and wrecker service crews
invade the area of Mrs. Alcorn’s home in order to take her vehicles—a 2004
Dodge truck and 2000 Buick sedan. (I C.R. 225-26, 229-31, 310-12)
Before the vehicles are taken, Mrs. Alcorn removes her personal
items, along with her kids’ medical papers, and signs an inventory form. (I
C.R. 225, 230-31, 310-12) Mrs. Alcorn drives both vehicles, and law
enforcement has seen her with the truck at a carwash (Id. at 226) Law
enforcement knows the vehicles are kept at 624 N. Wilcox. (Id. at 11, 217) It
also knows Mrs. Alcorn’s husband is in jail, where he has been for almost a
month. (Id. at 308) Except a one page warrant, Mrs. Alcorn receives nothing
to inform her of reasons for seizure or any rights she may have. (Id. at 228)
Suit. Twelve days later, the Milam County District Attorney’s Office
files a notice of seizure and intended forfeiture (i.e., petition). (Id. at 5) The
State alleges the vehicles are contraband based on two events over 7 and 14
months old, as told by unnamed persons, and purportedly documented in the
2004
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V.
STATE—APPELLANT’S
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1
past on other officers’ unattached, unproduced videos. (Id. at 5-12, 216-217)
Deputy White’s affidavit attached to the petition is mostly a carbon copy of
his affidavit used to procure the seizure warrant the day before seizure. (Id.
at 10-11, 216-221)
Both affidavits admit that Mrs. Alcorn’s husband is “the owner of the
vehicles.” (I C.R. 10, 217) They also admit that, although names on the
vehicles’ certificates of title have not been changed to reflect current
ownership, those listed—James Rackley and Gil Shamsher—have not “had
any claim to the vehicles in the previous year to present.” (Id.)
Service. The State personally serves Sedderick Alcorn notice of suit
with citation in jail. (I C.R. 22) It personally serves James Rackley and Gill
Shamsher by citation also. (Id. at 20, 24) Yet, James Rackley informs the
State he has no interest in the Dodge truck. (Id. at 223) In 2013, Sedderick
purchased, and took possession of, the truck, and he (Rackley) delivered its
title and transfer papers to Mrs. Alcorn in a Baptist church parking lot. (Id.)
Mrs. Alcorn is not served by any method, and answers on May 28,
2014—roughly 83 days from seizure (on March 6). (I C.R. 26)
The State Moves for Judgment. In early July, James Rackley
stipulates to a default judgment. (Id. at 28) Then, the State moves for
summary judgment against Mrs. Alcorn and her husband, Sedderick, and
2004
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1500
V.
STATE—APPELLANT’S
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2
takes a default judgment against Gill Shamsher. (Id. at 35, 116-17) The State
obtains summary judgment against Sedderick based on deemed admissions.
(Id. at 36-38, 351)
The State urges traditional and no-evidence motions against Mrs.
Alcorn. (I C.R. 38-43) The State claims Mrs. Alcorn lacks standing to raise
the innocent owner defense under Texas Code of Criminal Procedure Article
59.02(c) because she is a spouse. (Id. at 38, 39) The State also claims that,
even if she has standing, no evidence supports her ownership interest under
59.02(c) because those listed on certificate of title are presumed owners. (Id.
at 39, 40-42) And, it claims no evidence supports that Mrs. Alcorn had a
reasonable lack of knowledge required by 59.02(c). (Id. at 39, 42-43)
Mrs. Alcorn Responds. Mrs. Alcorn quickly files a verified amended
answer, denying all allegations, denying that all conditions precedent have
been met, and asserting affirmative defenses: statute of limitations,
disproportional forfeiture, and the innocent owner defense of 59.02(h)(1)(C),
in addition to 59.02(c). (I C.R. 127) She also responds and objects to the
State’s motions, evidence, pleadings, discovery, and timing, and
demonstrates she is actually entitled to summary judgment. (Id. at 130-329)
The State Amends. Afterward, 152 days following seizure, the State
amends its pleadings, adds Mrs. Alcorn as a potential owner or interest
2004
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1500
V.
STATE—APPELLANT’S
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3
holder of the vehicles, provides her address for service of process as 624 N.
Wilcox, and faxes a copy to her attorney. (I C.R. 331-32, 336)
The Trial Court Grants Summary Judgment. After the hearing, the
trial court sends a letter recognizing Mrs. Alcorn’s standing, but indicates it
will grant the State’s motion. (I C.R. 347) Mrs. Alcorn again requests rulings
on responses and objections, and clarification of the court’s proposed
decision. (Id. at 349) Without responding to Mrs. Alcorn’s requests, the trial
court grants final summary judgment. (Id. at 351) (Appendix A-1)
Mrs. Alcorn Moves for New Trial. Mrs. Alcorn then moves for new
trial, renews prior objections and requests, objects to the court’s actions and
grant of final summary judgment, and presents additional evidence she
would have presented had there been sufficient time for discovery. (I C.R.
Supp. 4-137)
Mrs. Alcorn’s additional evidence proves the State’s valuation of the
Buick leaves $7,000 unaccounted for. (I C.R. Supp. 88, 90-91, 356-57) Plus,
evidence again confirms that the valuation also omits the value of rims on
the Buick and $2,000 Mrs. Alcorn put into it. (I C.R. 226) (I C.R. Supp. 88)
Mrs. Alcorn again shows the Buick’s rims, possibly worth several
thousand dollars, disappeared from a highly secure impound area at the
2004
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1500
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STATE—APPELLANT’S
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4
sheriff’s office just after deputies seized the Buick. (I C.R. 226, 230-31) (I
C.R. Supp. 106-09) The State continues to remain silent.
But, she also shows the truck rims were bought on February 4, 2014—
six months after the acts alleged by the State. (I C.R. 360)
Finally, Mrs. Alcorn again informs the trial court about the hardships
facing both her and her attorney. (I C.R. Supp. 126-33) (I C.R. 173-80) She
again informs the trial court about the State’s untimely service, the State’s
hasty bombardment of discovery, and the State’s unreasonable immediacy in
moving for no-evidence summary judgment before there was adequate time
to investigate. (I C.R. Supp. 126-33) And, she again informs the trial court
of the State’s failure to disclose evidence—such as the information by James
Rackley, statements of other witnesses and parties, its method of estimating
value and the worth of other items, and information about the disappearance
of the Buick’s rims. (I C.R. 238-43)
Even so, Mrs. Alcorn’s pleas fall on deaf hears. The trial court denies
her motion for new trial, and refuses to rule on her objections for the third
time. (I C.R. Supp. 138) (Appendix A-2)
Mrs. Alcorn now appeals to this Court for relief.
2004
DODGE
RAM
1500
V.
STATE—APPELLANT’S
BRIEF
5
SUMMARY OF THE ARGUMENT
There are three primary reasons the trial court should be overturned.
First, the State failed to serve Mrs. Alcorn within the limitations
period, and no evidence supports an excuse for its failure to do so.
Second, all issues, claims, and defenses were not decided; thus, the
trial court erred by granting full and final summary judgment. The State’s
motion was wholly based on Mrs. Alcorn’s inability to successfully assert
the innocent owner defense of Article 59.02(c), Texas Code of Criminal
Procedure. The State never sought to prove any other issue against Mrs.
Alcorn, and never mentioned her other defenses.
Third, the State’s summary judgment evidence is incompetent and
insufficient because it is hearsay; based on conclusory opinions, second hand
knowledge, and unattached exhibits; and is merely part of the pleadings.
Neither pleadings nor proof justifies the amount of property seized. And, the
trial court had no discretion to ignore evidentiary objections.
The trial court’s decision is wrong for other reasons: Fact issues were
raised as to other defenses. The case needed further development. The
proceedings were unfair. Authorities interpreting the innocent owner defense
are erroneous. And, summary judgment should not have been granted.
2004
DODGE
RAM
1500
V.
STATE—APPELLANT’S
BRIEF
6
ARGUMENT
The trial court erred by granting summary judgment to the State. This
Court should reverse and render judgment against the State on the statute of
limitations issue. Alternatively, this Court should remand on all grounds.
A. STANDARD OF REVIEW.
A grant of summary judgment is reviewed de novo. Nall v. Plunkett,
404 S.W.3d 552, 555 (Tex. 2013).
Laws are strictly construed against the forfeiture, especially when
forfeiture is to the sovereign and created by statute. 1
B. SUMMARY JUDGMENT STANDARDS.
To obtain traditional summary judgment, a movant must prove with
competent evidence that no genuine issue of material fact exists, and it is
entitled to judgment as a matter law on issues expressly set out in the motion
or in an answer or any other response to the motion. TEX. R. CIV. P. 166a(c).
Evidence favorable to the non-movant is taken as true, and every
reasonable inference is indulged, and any doubts resolved, in its favor.
1
State v. Lot 10, Pine Haven Estates, 900 S.W.2d 400, 402 (Tex. App.—Texarkana
1995, no pet.), superseded by statute, as stated in State v. Silver Chevrolet Pickup, 140
S.W.3d 691, 693 (Tex. 2004); id. at 694 (noting strict construction of limitations statute).
2004
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1500
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7
Martin v. Durden, 965 S.W.2d 562, 564 (Tex. App.—Houston 1997, no
pet.).
Summary judgment may be defeated by raising a genuine issue of
material fact on each element of an affirmative defense. Brownlee v.
Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).
For its no-evidence motion, the movant must specifically state the
elements as to which there is no evidence. TEX. R. CIV. P. 166a(i). The non-
movant must then produce more than a scintilla of evidence to raise a
genuine issue of material fact on those elements. Id. Jackson v. Fiesta Mart,
Inc., 979 S.W.2d 68, 70 (Tex. App.—Austin [3rd Dist.] 1998, no pet.). The
evidence must create more than a mere surmise or suspicion. Kindred v.
Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).
The evidence is viewed in a light most favorable to the non-movant
and all contrary evidence and inferences are disregarded. Merrell Dow
Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Where
the court's judgment does not specify the ground relied upon for its ruling,
summary judgment must be affirmed if any theory advanced is meritorious.
Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
As to standing, the pleadings are taken as true and construed in the
pleader’s favor. Pagosa Oil & Gas v. Marrs & Smith, 323 S.W.3d 203, 210
2004
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8
(Tex. App.—El Paso 2010, pet. denied) (discussing Tex. Dept. of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226—28 (Tex. 2004)).
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9
I. ISSUE ONE RESTATED:
The trial court overlooked that forfeiture is barred by the limitations defense.
The trial court erred by granting summary judgment for the State
because Mrs. Alcorn conclusively proved—or at least raised genuine issues
of material fact—that the affirmative defense of limitations bars forfeiture.
Brownlee, 665 S.W.2d at 112 (stating rule that summary judgment may be
defeated by raising fact issue on every element of an affirmative defense).
A. THE STATE DID NOT MEET THE 30-DAY LIMITATIONS PERIOD.
“[T]he state shall commence proceedings under this section not later
than the 30th day after the date of the seizure.” TEX. CODE CRIM. PROC. art.
59.04(a). “The service of process must be within the limitations period.”
$6,453.00 v. State, 63 S.W.3d 533, 536 (Tex. App.—Waco 2001, no pet.).
Service of process is not waived by generally appearing in suit. $24,156.00
v. State, 247 S.W.3d 739, 747 (Tex. App.—Texarkana 2008, no pet.).
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10
1. The State must serve owners, interest holders, and possessors
within 30 days of seizure.
Owners, interest holders, and those “in possession of the property at
the time of seizure must be served by citation as per Article 59.04(b), (c),
and (j).” 2 Owners and interest holders of seized property must be served by
citation with notice of seizure and intended forfeiture (i.e., the petition) just
like in other civil cases. TEX. CODE CRIM. PROC. ANN. art. 59.04(b).
“If the person in possession of the vehicle at the time of the seizure is
not the owner or the interest holder of the vehicle, notification shall be
provided to the possessor in the same manner specified for notification to an
owner or interest holder.” Id. § (c) (emphasis added). Moreover, one “in
possession of the property at the time it was seized shall be made a party to
the proceeding.” Id. § (j) (emphasis added). Thus, “when the possessor of
the vehicle is not the recorded registered owner… the possessor must be
separately served with citation.” 3
2
Don Clemer and Ann B. White, Texas District & County Attorneys Association, Guide
to Asset Seizure and Forfeiture, at 31 (2010)(hereafter “TDCAA Guide”).
3
Id. at 33.
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2. The statute of limitations defense is strictly construed.
The 30-day period is strictly construed and binding against the State.4
In State v. Lot 10, Pine Haven Estates, the statute of limitations blocks
the State’s attempt to forfeit a cabin owned by Mr. and Mrs. Stark, and used
by Mr. Stark to commit indecency with a child. 900 S.W.2d 400, 401 (Tex.
App.—Texarkana 1995, no writ). 5 The cabin sits on Lot # 8, which the
State’s agents physically seize and mark off with yellow tape. Id. at 401.
Yet, the State’s petition accidently names Lot # 10 (instead of Lot # 8). Id.
After 30 days, the Starks amend their answer to assert the limitations
defense. The State quickly amends to name Lot # 8. The Starks seek
summary judgment on limitations. The trial court grants the Starks’ motion
because the amendment is more than 30 days from seizure. Id. at 402.
The State misleads no one, harms no third party rights, seizes the
correct property, and “promptly” corrects the misdesignation. Id. at 403
(Cornelius, C.J., concurring). And, all parties know full well which
property is being forfeited.
Even so, the Starks win because “[t]here is no question… the State
failed to meet the explicit requirements of the statute.” Id. at 402.
4
$24,156.00, 247 S.W.3d at 743, 747 n.5; 1988 Dodge Pickup v. State, No. 06-06-00011-
CV, 2006 Tex. App. LEXIS 10551, at *5-6 (Tex. App.—Texarkana Dec. 12, 2006, no
pet.) (mem. op.) (59.04(a) “shall be strictly construed”).
5
superseded in part by statute, as stated in Silver Chevrolet, 140 S.W.3d at 693-94
(noting general change in legislative intent, but not in strict construction of limitations).
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12
Pine Haven differs from instances where the State files its petition
within the 30-day time frame, but fails to attach the officer’s affidavit. Id.
(discussing State v. Park, 820 S.W.2d 948 (Tex. App.—Texarkana 1991, no
writ). In such instance, if the officer’s affidavit exists, the petition may be
cured by amendment (adding the affidavit) because it is filed in the right
county, against the right property, on the right people, and within the
requisite time frame. Thus, the defect relates only to the pleadings.
Pine Haven also differs from situations where the State fails to timely
file a lis pendens notice, as seen in State v. Silver Chevrolet Pickup, 140
S.W.3d 691, 694 (Tex. 2004). In Silver Chevrolet, the Court says that failure
to maintain strict compliance with a lis pendens provision is not necessarily
fatal. Id. at 694. Basically, a lis pendens notice protects outside third parties
who may later seek to purchase or take a security interest in the property;
yet, a statute of limitation protects those with existing property rights being
directly affected. Id. Thus, a lis pendens provision is only an internal timing
directive—“[u]nlike the thirty-day requirement in Pine Haven Estates, which
constituted a statute of limitations…” Id.
In Martinez v. State, a trial court erroneously grants forfeiture of a
defendant's vehicle. 893 S.W.2d 304, 305 (Tex. App.—Corpus Christi 1995,
no writ). Although the seizure occurs in Kennedy County, the State files the
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forfeiture suit in Kleberg County, where it prosecutes the driver and stores
the vehicle. Later, the defendant files a plea to the jurisdiction due to the
State’s failure to file in the county of seizure as required by Article 59.04(b).
Id. The trial court denies the plea, and forfeits the vehicle after trial.
The appeals court reverses because the mandatory “language of Art.
59.04 is very precise.” Id. at 305. The court must reverse and render for the
defendant because the State cannot transfer venue back to Kennedy County
after its failure to follow mandatory rules causes the 30-day period to run.
Finally, in Manson v. State, Vickie Lynn Manson is in possession of a
Cadillac owned by Gary Long that is forfeited to the State after Vickie gets
caught driving it while carrying illegal drugs. 609 S.W.2d 855, 856 (Tex. Civ.
App.—Texarkana 1980, no writ) Vickie is personally served because she
had possession of the Cadillac at the time of seizure. Id. at 857. The State
cannot find Gary, and serves him through publication. Id. at 856. At trial,
Vickie objects to the way Gary’s interests are being handled. Id. at 856-57.
The trial court overrules her objections, and the appeals court affirms. Id.
Basically, Vickie lacks standing to complain about errors concerning
Gary because she never claims to have “any interest in the vehicle, or . . .
any right to the continued possession of it.” Id. at 856. And, Vickie suffers
no personal harm since she was properly served. Id. at 857.
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14
3. The State failed to satisfy the 30-day statute of limitations.
Mrs. Alcorn’s possession of the vehicles at the time of seizure, and
her status as Sedderick’s wife are undisputed. As an owner, interest holder
and possessor of the vehicles at the time of seizure, the State had to serve her
by citation. TEX. CODE CRIM. PROC. ANN. art. 59.04(b), (c), (j).6
Unlike Manson, Mrs. Alcorn was personally injured because she was
never personally served—and was not served by any method for 152 days. (I
C.R. 331-36) Unlike Manson, Mrs. Alcorn at the least had the continued
right of possession and use of both vehicles because she was a spouse.7
But that’s not all. Mrs. Alcorn and officers signed inventory forms at
the time of seizure (which were in the State’s possession). (I C.R. 310-12)
The forms show she removed personal items, and her kids’ medical papers,
from the vehicles. (Id. at 225, 230-31) Sedderick was in jail at the time of
seizure—and had been for almost a month. (Id. at 308) The truck’s title and
transfer papers were delivered to Mrs. Alcorn—which the State knew of. (Id.
at 223) Mrs. Alcorn invested money in the Buick, drove both vehicles, and
an officer saw her in possession of the truck at a carwash. (Id. at 226)
6
See TDCAA Guide, at 33 (stating “possessor must be separately served with citation.”)
7
TEX. FAM. CODE ANN. §3.102 (stating community property subject to joint control). See
State v. Bassano, 827 S.W.2d 557, 60 (Tex. App.—Corpus Christi 1992, no pet.) (finding
defendant-husband to have “a possessory right of use and control of his wife's [car].”).
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15
Thus, as in Silver Chevrolet, Mrs. Alcorn is a “person whose property
is the subject of the forfeiture proceeding.” 140 S.W.3d at 694. Even as a
possessor, her existing property rights are directly affected,8 thus, she is a
mandatory party. TEX. CODE CRIM. PROC. ANN. art. 59.04(j). See id. art.
59.02(d) (stating possessor retains “rights… during pendency of proceedings
under this chapter as if possession of the property had remained with [her].”)
And, similar to the Starks in Pine Haven, Mrs. Alcorn could amend
her answer to assert the limitations defense because appearing in suit does
not waive service for purposes of that defense. $24,156.00, 247 S.W.3d at
747. In fact, Mrs. Alcorn’s case is even stronger than Pine Haven because
she was never properly served, she was not initially involved in suit, she did
not attempt to game the State, her statutory rights and ownership interests
were harmed, the mistake was more than a typo, the State’s amendment still
did not cure service, and its amendment came much later—152 days after
seizure. (I C.R. 331-36)
Therefore, just like the Martinez court, this court should render
judgment for Mrs. Alcorn because she was (and still is) injured, the State did
not follow multiple provisions mandating service of process, and over 300
days have passed without proper service.
8
See State v. $ 281,420.00, 312 S.W.3d 547, 551 (Tex. 2010) (discussing bailments).
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16
B. THE STATE DID NOT USE DUE DILIGENCE AS A MATTER OF LAW.
When service occurs outside the limitations period, the State must
produce evidence that it used “due diligence in attempting to procure service
in a timely manner.” $6,453.00, 63 S.W.3d at 536.
Before granting summary judgment, the trial court sent a letter
indicating reasons for its planned decision, which explained:
First regarding Mr. Watson's argument that despite how the
vehicles were titled, his client nevertheless has standing, I believe
that argument to be well taken, as caselaw supports that position.
As such, Ms. Alcorn was entitled to the requisite rights provided
any holder of interest under Chapter 59.
That leads in turn to the issues involving notice and the statute of
limitations. I think the State proceeded in good faith with regard
to noticing individuals with a known interest in the automobiles.
Ms. Alcorn's name not being on any record title would appear to
be at the root of the problem, and apparently the matter has been
satisfactorily addressed. She has made an appearance, and I have
found her to have standing.
(I C.R. 347-48) The trial court could not find that the State used diligence to
procure issuance and service for at least three reasons. First, the State
offered no evidence of diligence. Second, the State should have served Mrs.
Alcorn as a possessor regardless of ownership. Third, the State did not
continuously seek issuance or service.
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17
1. The State offered no evidence of diligence, and the trial court
erroneously assumed a valid excuse.
Diligence is lacking as a matter of law when “no excuse is offered…”
One 1991 Chevrolet Blazer v. State, 905 S.W.2d 443, 445 (Tex. App.—
Amarillo 1995, no writ). See Knox v. Donovan Lowery Ins. Agency, 405
S.W.2d 160-61 (Tex. Civ. App.—Eastland 1966, no writ) (eight-day-delay
lacked diligence where no explanation offered).
The State never said, by affidavit or otherwise, that the absence of
Mrs. Alcorn’s name from certificate of title was the root of the problem. It
never responded at all. This was not the excuse offered by the State, but the
excuse assumed by the trial to relieve the State of its duty to offer an excuse.
In any event, this assumed excuse is erroneous because it is
inconsistent with the evidence. The State twice admitted on oath that those
listed on the certificates of title (James Rackley and Gil Shamsher) had no
“claim to the vehicles in the previous year to present.” (I C.R. 2117, 220) It
admitted this before seizure, and again before suit was filed. (Id. at 218, 221)
Thus, the State was not misled to believe those listed on certificates of
title were owners when it swore twice that those listed had no interest.
The State also admitted twice on oath that the vehicles were owned by
Sedderick, in his exclusive possession, and stored at the Alcorn residence,
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624 N. Wilcox. (Id. at 217-18, 220-21) James Rackley, a neutral party,
stated he had no interest in the truck, that he transferred it to the Alcorns,
and he relayed this to the District Attorney. (Id. at 223) He stipulated to a
default judgment—before the State ever moved for summary judgment. (Id.
at 28) And, default judgment was taken against Gill Shamsher—before Mrs.
Alcorn amended her answer and filed a response. (Id. at 116-17)
Again, the State cannot reasonably contend that people have no
ownership interest, and then say those people are presumed owners.
The State was also put on notice that Mrs. Alcorn was an owner. She
was head of the household at 624 N. Wilcox (where the vehicles were
stored), she was in charge at the time of seizure, Sedderick was in jail, and
she removed personal items from the vehicles. (I C.R. 225, 308, 310-12,
314-15) Agents of the State have seen her in possession of the car, she called
in-laws over to witness the seizure, she signed the inventory form—using
the name Alcorn—, and easily available public records all show the State
had reason to know Mrs. Alcorn was Sedderick’s wife. (Id. at 225-26, 311,
298, 300) (I C.R. Supp. 123) The State has never said otherwise. And, the
State later acknowledged Mrs. Alcorn’s interest in its amended petition.
Finally, ownership is irrelevant because Mrs. Alcorn was a possessor.
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2. Certificate of Title and Ownership are Irrelevant as to Diligence.
Mrs. Alcorn’s possession of the vehicles at the time they were seized
is undisputed. Therefore, Mrs. Alcorn had to be served anyway—even if the
State thought she had absolutely no interest—because she was “the person
in possession of the vehicle at the time of the seizure…” TEX. CODE CRIM.
PROC. ANN. art. 59.04(c) (emphasis added).
Failure to follow the law is not diligent as a matter of law. $3,639 v.
State, 133 S.W.3d 698, 701-02 (Tex. App.—Corpus Christi 2003, no pet.)
(citing Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884,
885 (Tex. 1985) (stating “failure to affirmatively show strict compliance
with the Rules of Civil Procedure renders the attempted service of process
invalid and of no effect.”)).
In Belleza-Gonzalez v. Villa, Attorney Gonzalez is not diligent as a
matter of law for relying on an oral agreement with a defendant to delay
service until medical documents lost in a burglary are found. 57 S.W.3d 8
(Tex. App.—Houston 2001, no pet.). Despite unfortunate circumstances, and
the defendant’s bait-and-switch tactics, Gonzalez is found to lack diligence
because he should have followed the requirements of Rule 11. Id. at 12.
In Mrs. Alcorn’s case, the trial court incorrectly found good faith
because that is not the standard. Attorney Gonzalez’s oral agreement may
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have been in good faith, but was still insufficient to show diligence. Neither
the unfortunate circumstances, nor the defendant’s shrewd litigation tactics,
relieved Attorney Gonzalez from following the rules.
The bottom line is that, when one chooses to play a game, it must play
by the rules. The State chose to file suit, and must be held accountable to the
rules governing that suit. The law says Mrs. Alcorn had to be served because
she was a possessor. Because the law says to serve possessors, beliefs about
ownership and title do not matter. Because the law is easily available and
clear, the State had no excuse for not following it. See Furr v. Furr, 721
S.W.2d 565, 566 (Tex. App.—Amarillo 1986, no writ) (finding “obvious
failure to read applicable, easily available rules” negates diligence).
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21
3. The State used no continuous due diligence to seek timely service.
The State must do more than offer reasons for failing to procure
timely service. It must show that it both requested issuance of citation, 9 and
continuously used “diligence to ‘seek’ service of process” 10 all the way “up
until the defendant was served.” 11 Diligence also requires the State “to
exhaust all the available alternatives to achieve proper service.” 12
Also, when property owners are unknown, and no one is in possession
at the time of seizure, “the attorney representing the state shall file . . . an
affidavit stating that no person was in possession of the property at the time
it was seized and that the owner of the property is unknown.” TEX. CODE
CRIM. PROC. ANN. art. 59.04 (k) (also requiring citation by publication, and
compliance with Texas Rules of Civil Procedure 114, 115, and 116).
Even if certificate of title caused the initial failure to request issuance,
the State’s duty was continuous. The State amended its petition to include
Mrs. Alcorn as a potential owner, interest holder, or other person with
9
Fisher v. State, 803 S.W.2d 828, 830 (Tex. App.—Dallas 1991, writ ref’d) (citing Knox,
405 S.W.2d at 161).
10
Belleza-Gonzalez, 57 S.W.3d at 12.
11
$4,464,2002, Tex. App. LEXIS 6423, at *6 (citing $ 6,453, 63 S.W.3d at 536)). See
also Windle v. Mary Kay, Inc., No. 05-02-00252-CV, 2003 Tex. App. LEXIS 5594, at
*6-7 (Tex. App.—Dallas July 1, 2003, pet. denied) (mem. op.) (finding attorney’s
affidavit insufficient because merely providing excuses does not indicate “what efforts
counsel made to effectuate service”).
12
Roberts v. Padre Island Brewing Co., 28 S.W.3d 618, 622 (Tex. App.—Corpus Christi
2000, pet. denied).
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interest—but then still did not seek issuance and service on her. And, then, it
refused to respond for failing to include and serve her previously.
Lastly, if Mrs. Alcorn was not in possession, and the State truly did
not know who the owners were, the State was required to follow 59.04(k)’s
procedure: file an affidavit of unknown owners, obtain alternate service, and
request appointment of an attorney ad litem. None of this was done.
Because the State never sought issuance of service for Mrs. Alcorn—
even after it noticed her interests—, it was not diligent as a matter of law.
Because the State never took any affirmative act to effectuate service on
Mrs. Alcorn, it was not diligent as a matter of law. Because it did not utilize
all methods for locating owners, it did not exhaust all available remedies.
Again, the State chose when, where, how, and why to pursue this
forfeiture, was responsible for abiding by the rules governing it, and had a
continuous duty to fix and explain its failure(s) to follow the rules. Because
the State failed to do these things, the trial court could not have found
diligence as a matter of law.
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II. ISSUE TWO RESTATED:
Granting final summary judgment was inappropriate because issues, claims,
and defenses are unresolved.
The State’s summary judgment motion was wholly based on Mrs.
Alcorn’s inability to successfully assert the innocent owner defense of
Article 59.02(c), Texas Code of Criminal Procedure. Because the State still
had to prove the issues of probable cause and contraband against Mrs.
Alcorn, and because it mentioned none of Mrs. Alcorn’s other defenses, full
and final summary judgment could not have been granted.
A court cannot grant summary judgment on more issues than those
“expressly set out in the motion or in an answer or any other response.” TEX.
R. CIV. P. 166a(c). Courts will be reversed for granting summary judgment
on claims not addressed in the motion or granting more relief than a party is
entitled to. G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011)
(per curiam); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).
Even without objection, a court of appeals cannot “read between the lines or
infer from the pleadings any grounds for granting the summary judgment
other than those grounds expressly set forth before the trial court.” Nall v.
Plunkett, 404 S.W.3d 552, 555 (Tex. 2013).
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1. The State’s motion for summary judgment only challenges Mrs.
Alcorn’s use of the innocent owner defense under 59.02(c).
The first page of the State’s motion deals with procedural posture of
the case. (I C.R. 35-36) The second page contains the subsection, Requests
for Admissions, and only discusses the State’s “cause of action against
Respondent, Sedderick Alcorn.” (Id. at 36) Mrs. Alcorn is never mentioned,
and deemed admissions of Sedderick are inadmissible against her. 13
Page three starts with subsection B, entitled Forfeitures, and gives full
argument for Summary Judgment Regarding Sedderick Alcorn. (Id. at 37)
The next section concerns Summary Judgment Regarding LaToya
Alcorn, where the State challenges that she lacks standing to raise 59.02(c)’s
innocent owner defense; and that no-evidence supports her ownership
interest or reasonable lack of knowledge under 59.02(c). (Id. at 38-43).
The next page lists evidence, and, essentially, has a boilerplate request
for forfeiture. (Id. at 44) The last page gives the hearing date. (Id. at 45)
Thus, the judgment of forfeiture was improper because the State only
challenged Mrs. Alcorn’s ability “to raise the innocent owner defense” (id. at
40), and other issues, claims and defenses were not addressed.
13
“The rule is firmly established that admissions directed to one defendant, whether
answered, or admitted by reason of failure to answer, are not evidence against other
defendants in the same case.” Bryant v. Kimmons, 430 S.W.2d 73, 76 (Tex. Civ. App.—
Austin [3rd Dist.] 1968, no writ). See TEX. R. CIV. P. 198.3 (stating deemed admission “is
conclusively established as to the party making the admission”).
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2. Mrs. Alcorn put everything in issue.
Within her verified answer (I C.R. 127-129), Mrs. Alcorn denied all
State allegations, denied that all conditions precedent were met, and asserted
affirmative defenses of statute of limitations, disproportional forfeiture, and
innocent owner defenses under 59.02(c) and (h)(1)(C). Thus, the State had
the burden to prove all of its allegations, and Mrs. Alcorn could defeat the
State’s claims by raising fact issues on each element of her defenses.
a. The State must conclusively prove that probable cause existed to
seize, and that the property is contraband subject to forfeiture.
The State must conclusively prove (1) existence of probable cause for
seizure of the property, and (2) the property is forfeitable contraband. State
v. $90,235.00, 390 S.W.3d 289, 293 (Tex. 2013).14 Every appellate opinion
supporting the State’s summary judgment on the innocent owner defense
issue says the State still must prove probable cause and contraband. 15 But,
the State never moved for summary judgment on the issue of probable cause
14
(citing $56,700 v. State, 730 S.W.2d 659, 661 (Tex. 1987), and Tex. Const. art. I, § 9))
15
See Gray v. State, No. 03-99-00235-CV, 1999 Tex. App. LEXIS 8213, at *3-4 (Tex.
App.—Austin [3rd Dist.] Nov. 4, 1999, no pet.) (mem. op., not designated for
publication) (noting “State must prove … property seized is contraband . . . [and] show
probable cause”); Mitchell v. State, 819 S.W.2d 659, 660 (Tex. App.—El Paso 1991, no
writ) (noting “it was the state's burden to establish . . . a nexus between the property to be
forfeited and the statutorily-defined criminal activity.”); Gaston v. State, 641 S.W.2d 261,
263 (Tex. App.—Houston 1982, no writ) (State has “burden of showing the vehicle was
subject to forfeiture.”); Amrani-Khaldi v. State, 575 S.W.2d 667, 669-70 (Tex. Civ.
App.—Corpus Christi 1978, no writ) (stating, when owner files “verified answer denying
that the property is subject to forfeiture, ‘the burden is on the state to prove [otherwise]”).
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or contraband, thus, the trial court erred by granting final summary
judgment. (For more discussion on these issues, see, infra, at 31-40.)
b. Mrs. Alcorn asserted the limitations defense.
The State never mentioned this defense (discussed above at 10-23).
c. Mrs. Alcorn claimed the defense under Article 59.02(h)(1)(C).
Mrs. Alcorn asserted the elements of subsection 59.02(h)(1)(C). (I.
C.R. 127-28). Subsection (h)(1)(C) acts as a separate defense for an innocent
owner or interest holder who proves she “was not a party to the offense
giving rise to the forfeiture and that the contraband … was used or intended
to be used without [her] effective consent … in the commission of the
offense giving rise to the forfeiture.” 2003 Ford Pickup v. State, No. 04-06-
00036-CV, 2007 Tex. App. LEXIS 865, at *8 (Tex. App.—San Antonio
Feb. 7, 2007, no pet.) (mem. op.) (explaining and applying 59.02(h)).
Subsection 59.04(h) was enacted in 2001, none of the State’s authority
addresses this subsection, and, on the issue of standing, the State only used
authority pre-dating its enactment. (For State’s authority, see, supra, at n.15)
Mrs. Alcorn did not consent to any use of the vehicles that might
subject them to forfeiture. (I C.R. 127-129, 227) Mrs. Alcorn’s lack of
involvement in any offense giving rise to forfeiture is undisputed. Thus, she
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27
at least raised fact issues on this defense. Regardless, the State’s motion for
summary judgment did not address this defense.
d. Mrs. Alcorn claimed the defense of disproportional forfeiture under
the Eighth Amendment.
The Excessive Fines Clause of the Eighth Amendment 16 prevents
forfeiture if the result would be grossly disproportional to the gravity of the
offense. United States v. Bajakajian, 524 U.S. 321, 324 (1998).
In One Car, 1996 Dodge X-Cab Truck v. State, forfeiture of a truck is
disproportional. 122 S.W.3d 422, 423 (Tex. App.—Beaumont 2003, no
pet.). Police arrest Sondra Carroll pursuant to an outstanding warrant for
drug possession. Id. at 422. While inventorying the truck, police find two
straws containing trace amounts of methamphetamines. Id. at 423. Sondra
pleads guilty to state jail felony possession of a controlled substance, but
receives a misdemeanor jail sentence of 90 days. Id.
The State petitions to forfeit the truck. Id. Sondra’s husband, Ray,
testifies that $14,000 of community funds were used to purchase the truck,
and estimates its value at the time of the offense to be around $11,000. Id.
Although title is in Sondra’s name, Ray uses the truck, and keeps it in good
condition. Id. Ray knows about Sondra’s drug problem, but not about the
16
U.S. Const. amend. VIII.
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truck’s use in buying drugs. Id. Even so, the trial court grants forfeiture.
Applying Bajakajian, supra, the appeals court reverses, finding
forfeiture to be grossly disproportionate to the gravity of the offense
committed. First, misdemeanor sentences are inconsistent with forfeiture,
but the facts do not support forfeiture even if Sondra had received a felony
sentence. Id. at 427. Police discover only a small amount of drugs. No
evidence shows the truck’s use in selling drugs. No evidence suggests the
truck’s use in any other offense except speeding. Id. at 427-28.
In Mrs. Alcorn’s case, the State’s evidence (assuming its truth and
admissibility) showed only one bad act for each vehicle. (I C.R. 10-11) The
State mentioned Sedderick being charged with delivery of a controlled
substance in a drug free zone, but offered no evidence that that charge
supports forfeiture in this case.
For instance, the two alleged acts occur 14 and 7 months before
seizure; yet, nothing described when Sedderick was charged, or that any
charge arose from acts alleged in the forfeiture petition. (Id.) No charging
document was attached. No conviction resulted that we know of.
No quantity of drugs or purchase amount(s) were specified. Other
than hearsay, no evidence of drugs was given. No large amounts of cash
were found anywhere in or near the vehicles, property or home. No drugs
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29
were found anywhere in or near the vehicles, property or home. No
subsequent acts involving drugs were illustrated.
The State also seized two different sets of rims that were not alleged
to be involved in, or acquired by, any illegal act. (I C.R. 226, 230-31) (I C.R.
Supp. 106-09) Yet, the State provided no evidence of damages it incurred, or
its method for calculating value.
Mrs. Alcorn was not involved in any wrongdoing, and has no
knowledge of illegal acts committed by Sedderick. (I C.R. 227) She used
both vehicles, invested her own money in the car, has no past convictions,
and explained that the rims’ prices were well over values given by the State.
(Id. at 226) She also maintains employment, works extra shifts, and provided
specific instances about Sedderick’s past employment. (Id. at 226-27).
Thus, genuine issues of material fact exist as to whether the State has
sought to forfeit more property than what it is entitled to, and whether the
amount forfeited should be reduced based on the circumstances.
Regardless, the State never addressed this defense.
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III. ISSUE THREE RESTATED:
The trial court’s decision to grant summary judgment in favor of the State is
not supported by the evidence.
The trial court erroneously granted summary judgment because the
State’s evidence and pleadings are incompetent, insufficient, and defective;
and because evidence creates genuine issues of material fact.
1. The trial court erred by granting summary judgment for the State
because the evidence is insufficient and incompetent.
Assuming the State sought to prove the issues of probable cause and
contraband against Mrs. Alcorn, the State’s evidence cannot support
summary judgment as a matter of law because it is hearsay, inconsistent,
unverifiable, and not based on personal knowledge.
Affidavits supporting summary judgment must set forth facts that are
admissible in evidence, not hearsay, and based on personal knowledge and
within the competence of the affiant. TEX. R. CIV. P. 166a(f). Evidence also
cannot be conflicting, or contain statements raising a fact issue. TEX. R.
CIV. P. 166a(c) (“free from contradiction”). 17
17
See Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex. 1988) (conflict
between affidavit and deposition); Dillard v. NCNB Tex. Nat’l Bank, 815 S.W.2d 365,
360-61 (Tex. App.—Austin [3rd Dist.] 1991, no writ) (affidavit’s statements contradict),
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An affidavit relying on facts contained only in a missing exhibit is
substantively defective.18 If those relied upon facts are supplied elsewhere in
the summary judgment evidence, the defect is one of form.19
Finally, pleadings “are not evidence,” 20 and courts “refuse to regard
pleadings, even if sworn, as summary judgment evidence.” 21
disapproved on other grounds, Amberboy v. Societe de Banque Privee, 831 S.W.2d 793
(Tex. 1992).
18
Brown v. Brown, 145 S.W.3d 745, 752 (Tex. App.—Dallas 2004, pet. denied); Galindo
v. Dean, 69 S.W.3d 623, 627 (Tex. App.—Eastland 2002, no pet.) (medical records);
Natural Gas Clearinghouse v. Midgard Energy Co., 23 S.W.3d 372, 380 (Tex. App.—
Amarillo 2000, pet. denied) (affidavit of damages expert referencing information
contained on computer disk); Mincron SBC Corp. v. Worldcom, Inc., 994 S.W.2d 785,
795-96 (Tex. App.—Houston 1999, no pet.) (invoices for disputed damages); Gorrell v.
Texas Utils. Elec. Co., 915 S.W.2d 55, 60 (Tex. App.—Fort Worth 1995, writ denied)
(sworn or certified copies of exhibits); Ceballos v. El Paso Health Care Sys., 881 S.W.2d
439, 445 (Tex. App.—El Paso 1994, writ denied) (medical records supporting medical
opinions); see also Sorrells v. Giberson, 780 S.W.2d 936, 938 (Tex. App.—Austin [3rd
Dist.] 1989, writ denied) (note not attached to affidavit failing to prove elements of suit).
19
Mathis v. Bocell, 982 S.W.2d 52, 60 (Tex. App.—Houston 1998, no pet.); Watts v.
Hermann Hosp., 962 S.W.2d 102, 105 (Tex. App.—Houston 1997, no pet.); Sunsinger v.
Perez, 16 S.W.3d 469, 500-01 (Tex. App.—Beaumont 2000, pet. denied) (medical
records); Martin v. Durden, 965 S.W.2d 562, 565 (Tex. App.—Houston 1997, pet.
denied); Noriega v. Mireles, 925 S.W.2d 261, 265 (Tex. App.—Corpus Christi 1996, writ
denied).
20
Hidalgo v. Sur. Sav. & Loan Ass'n, 462 S.W.2d 540, 543 (Tex. 1971)
21
Id. at 545.
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a. Motion to strike affidavit of Deputy White because it is based on
unverifiable hearsay, and on facts outside his personal knowledge.
Mrs. Alcorn moved to strike, and specifically objected to, Deputy
White’s affidavit due to it being hearsay, inconsistent, unverifiable, and not
based on personal knowledge. (I C.R. 161-64, 349, & Supp. 17-28, 134)
Initially, Deputy White’s affidavit states:
Your Affiant was informed that on more than one occasion
illegal narcotics have been purchased from the owner of the
vehicles while the subject was inside of the vehicles.
(I C.R. 10, 208). “Affiant was informed”—illustrates classic hearsay. The
facts are declared from an out of court declarant who experienced them
separately, at another point in time. 22 Thus, the facts are outside Deputy
White’s personal knowledge. This is just like Audish v. Clajon Gas Co.,
where the same is said for statements like, “I was advised that,” “I am
informed that,” and “I was told that.” 731 S.W.2d 665, 671 (Tex. App.—
Houston 1987, writ ref’d n.r.e.).
Neither the affiant nor the unknown-unverifiable-declarant-“subject”
say when, where, or how many occasions. 23 And, the State argued on
22
Caldarera v. State, 504 S.W.2d 914, 915 (Tex. Crim. App. 1974) (finding affidavit
conclusory and insufficient under Fourth Amendment where officer stated that person
provided facts officer believed true based on others’ statements and experience).
23
TEX. R. CIV. P. 166a(c) (proof must be clear, positive, direct, not contradictory, and
readily controvertible)
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33
summary judgment that the Alcorns were not owners; thus, to whom does
owner refer? 24
Next, the affidavit mainly discusses two instances that do not involve
Deputy White—that “were documented on video.” (I C.R. 208). Others
make the alleged videos. Others make the alleged identifications. Others
know the underlying facts and circumstances. Therefore, Deputy White’s
affidavit is improper for the same reasons already mentioned.25
Deputy White never says whether he actually watched the videos.
Although the instances “were documented,” they occur 14 and 7 months
before the affidavit’s creation—so are they still documented? If still existing,
are the videos clear? If so, why was no arrest made based on the video(s)?
b. Motion to strike affidavit because it makes unsubstantiated legal
and factual conclusions
The State’s evidence is legally and factually insufficient to support
that the vehicles are proceeds, or acquired with proceeds, from illegal drug
sales. Legal and factual conclusions, opinions, and subjective beliefs
unsupported by evidence are substantive defects that require no objection.26
24
Id.
25
Id. (c), (f), and improper predicate.
26
Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.—Houston 2000,
no pet.) (legal conclusions); Rizkallah v. Conner, 952 S.W.2d 580, 586-88 (Tex. App.—
2004
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34
Deputy White’s affidavit supporting seizure and forfeiture declares:
Affiant believes, based on training and experience, that the
above described vehicles were obtained through the sale of
illegal narcotics
(I C.R. 209).
In $567.00 v. State, similar allegations are found factually insufficient
to support forfeiture—after a full trial. 282 S.W.3d 244 (Tex. App.—
Beaumont 2009, no pet.). In $567.00, the Beaumont Court first finds legally
sufficient evidence to support the judgment because the evidence shows:
defendant made parole in January of 2003 for a drug delivery charge; sold
drugs to law enforcement at least three times within six or seven months
from making parole; sold “twelve rocks of cocain” to law enforcement; was
arrested based on a warrant for those drug sales; and the property was seized
at the time of arrest. $567.00, 282 S.W.3d at 248. Moreover, investigation
and undercover surveillance show that defendant had no source of income or
employment other than selling drugs. Defendant also bought the vehicle with
small cash bills, and then had the vehicle placed in someone else’s name. Id.
Yet, all that evidence is still not factually sufficient. Id. at 248-50.
The property seized at the time of the defendant's arrest is not found in
proximity to drugs or drug paraphernalia. Id. at 249. Despite the defendant’s
Houston 1997, no writ) (beliefs and conclusions); Harley-Davidson Motor Co. v. Young,
720 S.W.2d 211, 213 (Tex. App.—Houston 1986, no writ) (opinions and conclusions)
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35
drug trafficking in the past, no evidence demonstrates him to have done so
recently. Id. There is also no inordinately large sum of money involved.
And, although video surveillance exists, “there is no evidence of how
long the surveillance was conducted, how extensive it was, or how close in
time it was to either the arrest or the purchase of the vehicle.” Id. “The
record does not reflect how much time elapsed between the last observed
drug trafficking and [defendant’s] arrest.” Id. Even though defendant could
not explain why he had a joint account with another person, who provided
him money, the State failed to elicit evidence that the arrangement involved
drug trafficking. Id. at 250.
Finally, the opinion makes clear: the State cannot simply assume
that property is proceeds, or is acquired with proceeds, of drug sales because
a defendant sold drugs in the past. Id. Nor can it simply say: “because
[defendant] is a drug dealer any property he acquires is contraband.” Id.
In Mrs. Alcorn’s case, the only competent evidence that even might
potentially exist based on the State’s affidavit is video evidence of two
instances. Even with that video documentation, assuming it admissible on
every point in contention, the State still only has two instances—one for
each vehicle—of conduct constituting a commission of crime.
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36
Again, if other drug transactions were so likely to reoccur, why did
only one act per vehicle occur in over one year’s time?
But, the vehicles were also owned before the alleged drug sales even
took place. Nowhere does the affidavit provide competent proof of
Sedderick’s finances or how the vehicles are purchased or why it is believed
Sedderick bought the vehicles with proceeds from sales of narcotics or why
one single transaction would produce sufficient income to purchase a
vehicle—along with all the accessories that were on the vehicle.
Further, the affiant cannot base his knowledge on facts outside his
knowledge. 27 Deputy White’s statement assumes—quite tenuously—that
Sedderick purchased vehicles with drug sale money because Sedderick
(allegedly) sold drugs on only two independent and distanced occasions. 28
Next, Deputy White states:
and to further commit the violations of the Manufacture/
Delivery of a Controlled Substance…
(I C.R. 209). Again, assuming the videos’ admissibility, there is no hint that,
at this point, the State will be able to produce competent evidence Sedderick
committed more than one offense for each vehicle. If the State cannot
27
See TEX. R. CIV. P. 166a(c), (f).
28
Stoddard v. State, 475 S.W.2d 744, 747 (Tex. Crim. App. 1972) (finding conclusion of
affiants insufficient because affidavit did not “indicate the underlying circumstances”).
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37
validly speculate that Sedderick delivered contraband more than once per
vehicle in the span of time involved, it cannot jump to the conclusion that
the vehicles would be used “to further commit the violations…” Evidence
rules do not allow such speculation, or this type of reasoning—that “because
he did it in the past, he would do it again.” 29
c. The State’s affidavit does not conclusively establish probable cause.
Without seeing the videos, Deputy White could not attest to their
reliability, and without attaching them, could not prove their reliability to the
court. Deputy White never gave information corroborating the reliability or
trustworthiness of any informant. Instead, Deputy White is relying on the
validity of videos based on information relayed by another. It is as if “[t]he
present affidavit is based almost entirely on hearsay information supplied by
a first-time confidential informant.” State v. Duarte, 389 S.W.3d 349, 355
(Tex. Crim. App. 2012).
There is no “track record” provided for this (or these) informant(s); no
statement against penal interest; no consistency with other tips; no predictive
information. Duarte, 389 S.W.3d at 356. Is this informant a “criminal
milieu” looking for quid pro quo, or average citizen Joe? Id. at 357.
29
See TEX. R. CIV. P. 166a(f); TEX. R. EVID. 404.
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The informant’s purported first hand knowledge is still insufficient.
This Court may ask the same questions asked by the Court of Criminal
Appeals in Duarte, “How much cocaine did he possess? A couple of lines
worth, laid out … and fully consumed? A kilo? Where did Mr. [Alcorn]
have the cocaine? In the pocket of his jeans? Hidden in the [glove box]?
Was it piled on the [console] being weighed and packaged for sale?” Id.
Under the Fourth Amendment30—a less stringent test31 than summary
judgment—an “unsupported assertion or belief of the officer does not satisfy
the requirement of probable cause.” 32 Warrant affidavits must be
“sufficiently clear that the affiants spoke from personal knowledge, rather
than mere belief, or from knowledge gained through hearsay…” 33
The fact that another officer is mentioned does not corroborate the
reliability of this affidavit—but detracts from it. If another officer is seeing,
feeling, smelling, hearing, sensing, the things attested to, there should be
more detail, not less. Officers are trained to spot the detail.
Knowledge of these details is essential because the connection
between property to be forfeited and criminal activity must be “substantial.”
30
U.S. Const. amend. IV.
31
Duarte, 389 S.W.3d at 354 (“nondemanding standard”).
32
Spinelli v. United States, 393 U.S. 410, 423 (1969) (White, J., concurring)
33
Stoddard, 475 S.W.2d at 748.
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39
Gray v. State, No. 03-99-00235-CV, 1999 Tex. App. LEXIS 8213, at *4
(Tex. App.—Austin [3rd Dist.] Nov. 4, 1999, no pet.) (mem. op., not
designated for publication).
Because the affidavit describes acts over 14 and 7 months old, the
information relied upon in the affidavit is also stale. McKissick v. State, 209
S.W.3d 205, 214 (Tex. App.—Houston 2006, pet. ref'd) (stating facts in
affidavit must not have become stale when the magistrate issues warrant).
The facts described in the affidavit and the time of the warrant’s
issuance are not “closely related.” Sgro v. United States, 287 U.S. 206, 210
(1932); United States v. Wagner, 989 F.2d 69, 75 (2d Cir. 1993) (holding
information stale after 6-week delay from one-time drug buy to issuance).
The length of time calls into question the memory of the declarants
and the current availability of evidence for a “single, non-recurring crime.”
Crider v. State, 352 S.W.3d 704, 708 (Tex. Crim. App. 2011). One act per
vehicle cannot maintain probable cause as an “on-going” crime. Gonzales v.
State, 761 S.W.2d 809, 813 (Tex. App.—Austin [3rd Dist.] 1988, writ ref’d).
Therefore, the State’s affidavit does not even satisfy the Fourth
Amendment—or at least raises fact questions as to that issue.
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40
d. The State’s pleadings, even when sworn, cannot support its own
summary judgment.
The State’s pleadings were improperly used as evidence. “The law is
well settled that pleadings do not constitute proper summary judgment
proof even if they are sworn.”34 Therefore, the State improperly uses the
affidavit from its pleadings to support summary judgment.
e. Deemed Admissions of others are inadmissible against Mrs. Alcorn.
Again, deemed admissions of Sedderick are inadmissible against
Mrs. Alcorn. (See earlier discussion at p. 25 & n.13.)
34
Feldman v. Mfrs. Hanover Mortg. Corp., 704 S.W.2d 422, 423-24 (Tex. App.—
Houston 1985, writ ref’d n.r.e.) (citing Hidalgo, 462 S.W.2d at 540).
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2. The State neither raised nor proved a claim that either set of rims
constitutes contraband.
The State never once alleged in its pleadings or its evidence that either
set of rims on the vehicles was used in the commission of an act giving rise
to forfeiture. Neither affidavit mentioned rims or other personalty. (I C.R.
216-221) The Schedule A listing the property seized for forfeiture only
describes the vehicles. (Id. at 65) Schedule A describes the truck’s value as
$6,000, and the car’s value as $3,000. (Id.) Mrs. Alcorn’s evidence refutes
the State’s seizure and its estimated values. (Id. at 226) (See, infra, at 52-53)
As such, genuine issues of material fact exist to prevent summary
judgment because, again, the State has the burden to allege and conclusively
prove that the property seized and forfeited is contraband.
3. The State’s no-evidence motions erroneously employ conflicting
evidence, and genuine issues of material fact do exist.
The State improperly used evidence to prove its no evidence points. It
used certificate of title and Mrs. Alcorn’s interrogatory answer to argue no
evidence supported her ownership or interest in the vehicles. It used Mrs.
Alcorn’s answer to an objectionable production request to assert that no
evidence supported her reasonable lack of knowledge that Sedderick
committed the alleged violations.
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42
Lastly, genuine issues of material fact exist as to both claims—many
of which are created by the State’s own evidence.
Evidence attached to a no-evidence motion for summary judgment
“should not be considered unless it creates a fact question.” Binur v.
Jacobo, 135 S.W.3d 646, 651 (Tex. 2004). If evidence is conflicting or
raises a fact issue, it will not support a summary judgment.35 And,
“circumstantial evidence may be used to establish any material fact.” 36
As to ownership and interest, the State’s affidavits state under oath
that Sedderick Alcorn is owner of the vehicles, and that James Rackley and
Gill Shamsher have had no claim “in the previous year to present.” (I C.R.
10) It then argued the exact opposite in order to obtain summary judgment.
Yet, the State’s affidavits, James Rackley’s affidavit, and both default
judgments are conclusive against the State on this point. The State even
admits “certificate of title is not conclusive of ownership.” (I C.R. 34)
Mrs. Alcorn’s interrogatory answer used by the State said she has
“both a community property and monetary interest in the vehicles at issue.”
(I C.R. 41) “It is presumed that property possessed by either spouse during
35
See TEX. R. CIV. P. 166a(c), supra, at 31 & n.17.
36
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
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43
marriage is community property” 37—which the State must rebut “by clear
and convincing evidence.” 38 And, Mrs. Alcorn’s monetary interest raises
separate fact issues, especially since her affidavit states that she put money
into the Buick—to which the State does not respond. (Id. at 226)
Thus, the trial court illogically found no evidence of Mrs. Alcorn’s
ownership and interest, especially after it found that she had standing, and
“was entitled to the requisite rights provided any holder of interest under
Chapter 59.” (Id. at 349)
As to reasonable lack of knowledge, Mrs. Alcorn’s response to the
State’s request for production was that she “was unaware of, and does not
believe in, [the vehicles’] use in furtherance of crime.” (Id. at 43) The State
admits this is an affirmative middle ground “in between” two (non-summary
judgment) opinions used to justify its position. (Id.) 39 Being a middle
ground means some evidence existed.
Mrs. Alcorn directly exclaims her disbelief in the State’s allegations.
(I C.R. 227) Mrs. Alcorn confirms that she did not consent to any illegal act,
37
Beal Bank v. Gilbert, 417 S.W.3d 704, 709 (Tex. App.—Dallas 2013, no pet.) (citing
TEX. FAM. CODE ANN. § 3.003(a); Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011)
(per curiam)).
38
TEX. FAM. CODE ANN. § 3.003(b); see Harrell v. Hochderffer, 345 S.W.3d 652, 656,
and 657-660 (Tex. App.—Austin [3rd Dist.] 2011, no pet.) (discussing community
property presumption concerning personal injury awards claim on summary judgment).
39
Mitchell, 819 S.W.2d at 661 & n.1 (testimony, exhibits, and findings of fact); $18,800
v. State, 961 S.W.2d 257, 261 (Tex. App.—Houston 1997, no writ) (“at trial”).
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44
no drugs were sold using her vehicles; no drugs were in her home; no drugs
were sold around her home or using her home. (Id.)
Other fact questions are created by circumstantial evidence. Only one
instance occurred for each vehicle. (Id. at 10) Only two instances occurred in
over a year’s time. (Id.) Mrs. Alcorn was not present or involved—which
was in the State’s interest to allege. Both instances occurred away from Mrs.
Alcorn’s home. (Id.) Mrs. Alcorn worked, took whatever job times/
schedules were available, and Mrs. Alcorn’s mother-in-law baby-sat because
she and Sedderick were at work. (Id. at 227) Therefore, Mrs. Alcorn was not
around to know what was going on.
Moreover, no evidence suggests law enforcement ever notified Mrs.
Alcorn that her husband was committing any crime, or that her vehicles were
being used or intended to be used to commit crime. The covert investigations
and undercover surveillance create some evidence about why Mrs. Alcorn
did not perceive any police presence, and the clandestine nature of police
operations makes her lack of perception reasonable. (Id. at 10-11)
Mrs. Alcorn also believes that Sedderick worked at a temp agency, his
family’s lawn business, and odd jobs. (Id. at 226-27) She also believed
Sedderick made money by financing cars, trading property, and fixing things
up and reselling them. (Id.) Sedderick always paid bills he was responsible
2004
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45
for, and always had reasonable explanations for where he got money. (Id. at
227) What Sedderick said is admissible due to its effect on the listener.40
Mrs. Alcorn’s knowledge of her husband’s trouble with drugs in the
past does not make her lack of knowledge unreasonable.41 Even if it might
prove harmful on cross-examination, it certainly does not prevent
formulation of a genuine issue of material fact. Whether Mrs. Alcorn is
being truthful is an issue of credibility—for the fact finder to decide at a
hearing. Whether her belief is reasonable is also a question of fact.
The trial court should not have decided the issue in favor of the State
because it thought what Mrs. Alcorn said did “not ring true.” (I. C.R. 348)
The trial court erroneously made this assumption because it was
supposed to view the evidence in a light most favorable to the non-movant,
Mrs. Alcorn.
40
See Klein & Assocs. Political Rels. v. Port Arthur Indep. Sch. Dist., 92 S.W.3d 889,
894–895 (Tex. App.—Beaumont 2002, pet. denied) (in defamation action, affidavits
stating what affiants were told admissible in summary judgment to show affiants’ belief).
41
$ 567.00, 282 S.W.3d at 249-50 (finding State’s use of defendant’s past drug
trafficking insufficient to prove issue of contraband).
2004
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BRIEF
46
IV. REMAINING ISSUES RESTATED:
Summary judgment should not have been granted to the State.
The trial court erred by granting the State’s summary judgment
because authorities applying the innocent owner defense are erroneous, and
the overall proceedings were unfair.
A. AUTHORITIES APPLYING INNOCENT OWNER DEFENSE ARE WRONG.
In Amrani-Khaldi, the Corpus Christi Court of Appeals refuses to
acknowledge a spouse’s ability to assert the innocent owner defense in order
to protect community property from forfeiture. 575 S.W.2d 667, 668 (Tex.
Civ. App.—Corpus Christi 1978, no writ). The Amrani-Khaldi Court’s
decision stems from language in § 5.61 [now §3.202], Texas Family Code,
expressing that community property subject to a spouse's sole or joint
management, control and disposition is subject to the liabilities incurred by
him or her before or during marriage. 575 S.W.2d at 668.
Based on this Family Code provision, the Court formulates that
community property is not exempt from forfeiture where such
property is used by a spouse in such a manner as to contravene
[forfeiture laws], even though such property is so used by one
spouse without the knowledge or consent of the other spouse.
Id. at 668-69. None of the few appellate cases referencing Amrani-Khaldi’s
2004
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47
reasoning 42 fully analyze it, and others do so unnecessarily.43
Time has come for Amrani-Khaldi to be openly discussed, fully
dissected, and subsequently overruled.
First, forfeiture suits are “in rem” and are not suits against persons—
as the State almost always contends. (I C.R. 36, 38) Suits that are in rem are
only suits against property. There is no personal liability. Thus, forfeiture
suits are not against a spouse, so no “liabilities [are] incurred by the spouse
before or during marriage.” TEX. FAM. CODE ANN. §3.202 (c).
Second, § 3.202 does not create liabilities, but merely codifies
preexisting marital property law in Texas.44 Thus, although § 3.202 might
allow one’s estate to be obligated, it does not actually obligate forfeiture of a
spouse’s community estate. In fact, unless § 3.202 (c) permits liability, a
spouse cannot unilaterally obligate community property. TEX. FAM. CODE
ANN. §3.201(b). Amrandi-Khaldi correctly states the rule: “one spouse can
obligate…”; yet, incorrectly applies it by assuming an obligation simply
42
Gray, 1999 Tex. App. LEXIS 8213, at *5-7; Bochas v. State 951 S.W.2d 64 (Tex.
App.—Corpus Christi 1997, no writ); Gaston, 641 S.W.2d at 264.
43
The Gray claimant was a party to the offense, and not innocent. 1999 Tex. App. LEXIS
8213, at *5-6. Bochas references rule in a footnote, and permits appeal anyway. 951
S.W.2d at 67 n.2.
44
E.g., Anderson v. Royce, 624 S.W.2d 621, 622–623 (Tex. App.—Houston 1981, writ
ref’d n.r.e.) (holding 4-year statute of limitation (for written contracts) controlled against
debtor’s spouse, rather than two-year statute, which would have applied if spouse’s
liability had been created by TEX. FAM. CODE ANN. § 5.61 (recodified as §  3.202)).
2004
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48
because one is allowed.
Next, just because marital property law permits community debt, does
not mean it requires or approves of community debt, or that other laws are
incapable of adding protection. Even if §3.202 allows forfeiture, that does
not prevent the forfeiture statute itself from providing extra protection—
which it does via distinct innocent owner defenses. TEX. CODE CRIM. PROC.
arts. 59.02(c)(1)-(2), (h). Amrani-Khaldi simply ignores this. It jumps from
the premise that the Family Code permits obligation in some cases, to the
conclusion that obligation must be required in all cases—despite explicit
protections elsewhere saying otherwise.
This reasoning also violates and completely ignores Article I, § 21, of
the Texas Constitution, which declares “No conviction shall work
corruption of blood, or forfeiture of estate…” Yet, that is exactly what is
happening. Mrs. Alcorn’s entire community property and monetary
contributions may be forfeited, along with all rights to defend her property
against forfeiture, merely because the other spouse (allegedly) broke the law.
The Bochas Court nods to the rule “well established in equity that a
person who in good faith makes improvements upon property owned by
another is entitled to compensation therefor.” 951 S.W.2d at 67 n.2 (quoting
Sharp v. Stacy, 535 S.W.2d 345, 351 (Tex. 1976)).
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Yet, the above cases encourage the State to lie in wait—say, 14
months—after an offense is committed in order to let a spouse pay off the
property’s liens held by banks or merchants, or allow time for making
improvements. Once paid off, the State will sweep in to take the property
free and clear of any innocent owner defense possibly asserted by the
lienholder, and or obtain a greater value due to the improvements.
The State obtains a windfall while the spouse faces a troika of
penalties: once by paying for the lien or improvement, second by losing the
property, and third by losing her equity—all for doing nothing wrong.
These few opinions set forth a philosophy stripping bare the words of
Chief Justice Hecht’s concurring opinion that express “the injustice of
imputing one person's criminal acts to an innocent victim.” Fairfield Ins. Co.
v. Stephens Martin Paving, LP, 246 S.W.3d 653, 674-75 (Tex. 2008). Those
words powerfully demonstrate the role of public policy, which
must be carefully ‘deduced from its constitution, laws, and
judicial decisions.’ The requirement of deduction is critical; it
circumscribes judicial authority. Courts are to derive public
policy from existing law, not create it. And courts must also
recognize that public policy may change over time 45
Amrani-Khaldi’s reasoning is formulated around public policy
45
Fairfield Ins. Co., 246 S.W.3d at 673.
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46
that disregards specific constitutional protections, statutory
provisions, and fundamental equitable-legal doctrines. 47 As such,
Amrani-Khaldi, its progeny, and problematic philosophy cannot
support summary judgment against Mrs. Alcorn or anyone else.
B. THE PROCEEDINGS WERE UNJUST AND UNFAIR.
If this Court affirms the trial court in this case, it is effectively
removing any right of a spouse, and possibly other family members, from
ever challenging the State’s ability to seize and forfeit property.
The trial court found Ms. Alcorn to have standing, and to be “entitled
to the requisite rights provided any holder of interest under Chapter 59.” (I
C.R. 347) But then it granted summary judgment for lack of standing. (Id. at
352-53) Even if no standing exists to raise an innocent owner defense, Mrs.
Alcorn has general standing to protect her property by challenging the
State’s proof, and asserting other defenses, like limitations, because that is
required by all principles of due process, as well as Article I, § 21, of the
Texas Constitution.
The trial court then said Mrs. Alcorn did not establish a scintilla of
evidence because her affidavit “does not ring true.” (Id. at 348) Counsel will
46
TEX. CONST. art. XVI, § 15 (Separate and Community Property.)
47
See TEX. FAM. CODE ANN. §§3.406 (“equitable lien”), 7.001 (“just and right division”).
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not reiterate all the evidence, but this determination was not made with an
eye most favorable to Mrs. Alcorn. Her evidence rose to levels upheld by the
State’s supporting authorities—especially considering none of its forfeiture
cases even involve summary judgment. 48
The trial court’s flawed assumptions are emphasized by evidence
obtained after summary judgment. Mrs. Alcorn did not lie about investing
money into the Buick—she candidly estimated an amount between $1,000
and $2,000 (I C.R. 226) that was actually $2,000. (I C.R. Supp. 88)
Was she lying about the price of the vehicles not being reflected in the
State’s schedule A? Well, the $2,997 worth of improvements to the Buick
from Eagle Automotive—after the alleged act—equals what the State gave
for the Buick as a whole. (Id. at 90-91) The $4,000 of improvements made
by John Krause at Rockdale Auto Specialties proves a value much greater
than the State’s estimate. (Id. at 356-57)
Mrs. Alcorn said rims were on the Buick when it was seized but have
since disappeared (I C.R. 226), inventory forms show all four tires on both
vehicles when they were seized (I C.R. 230-31), and new pictures show the
48
Amrani-Khaldi, 575 S.W.2d at 668 (“Trial”); Gaston, 641 S.W.2d at 264 (hearing
evidence); Gray,1999 Tex. App. LEXIS 8213, at *3 (“bench trial”); One Ford Mustang v.
State, 231 S.W.3d 445, 450 (Tex. App.—Waco 2007, no pet.) (“bench trial”); Mitchell,
819 S.W.2d at 661 & n.1 (testimony, exhibits, and findings of fact); $18,800 v. State, 961
S.W.2d 257, 261 (Tex. App.—Houston 1997, no writ) (“at trial”).
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52
Buick sitting in police impound with all four tires and rims missing. (I C.R.
Supp. 106-09) The State remains silent.
The receipt from the Rim Shop in Austin, Texas shows the Dodge
truck rims were not even purchased until February 4, 2014—six months
after the act alleged by the State. (I C.R. 360)
The State and trial court knew about the hardships facing both Mrs.
Alcorn and her attorney. (I C.R. Supp. 126-33) (I C.R. 173-80) Mrs. Alcorn
was late in the game due the State’s failure to timely serve her, was then
bombarded with discovery, and immediately subjected to summary
judgment proceedings without adequate time to investigate. (I C.R. Supp.
126-33) The State also did not disclose evidence—like the information given
by James Rackley, statements of other witnesses/agents, method of
valuation, and the disappearance of valuable property. (I C.R. 238-43)
The State’s own playbook says it cannot “structure the forfeiture
proceeding in a way that deprives a statutorily defined claimant of the right
to present a claim.” 49 Yet, the State was permitted to simply ignore service
requirements, timing rules, discovery practices, and standards of proof while
Appellant was forced to prove her case, and disprove the State’s, in detail.
49
TDCAA Guide, at p. 31 (citing TEX. PENAL CODE ANN. §39.03).
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Even with all its inconsistent evidence and arguments, the State was given
the benefit of the doubt; yet, Appellant was quickly disbelieved. (Id. at 348)
What are we to do? Merely lie down in submission to political
maneuvers raising the battle cry over the war on drugs? Far too long we
have listened to this delusive song if it means we no longer respect due
process, liberty, fairness, property rights, the pursuit of happiness, and other
equitable principles of American and Texan jurisprudence.
For even Patrick Henry warns, “We are apt to shut our eyes against a
painful truth, and listen to the song of that siren till she transforms us into
beasts… Suffer not yourselves to be betrayed with a kiss.” 50 Therefore,
Appellant only asks this Court to give fair consideration instead of simply
taking the State’s word for it, as the trial court did below.
PRAYER
Mrs. Alcorn is praying this Honorable Court reverse and render
judgment that the statute of limitations bars forfeiture. Alternatively, Mrs.
Alcorn prays this Honorable Court reverse and remand on all issues.
Respectfully submitted
50
Patrick Henry, An Appeal to Arms, Virginia Convention (March 23, 1775) in Charles
Morris, Famous Orators of the World & Their Famous Orations 21 (John C. Winston
ed., 1902).
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_________________________
Benton Ross Watson
120 E. 1st Street / Box 1000
Cameron, Texas 76520
Tel: 1 (254) 307-8181
Fax: 1 (254) 231-0212
ross@texastopdefense.com
State Bar No. 24077591
Attorney for Appellant LaToya Alcorn
CERTIFICATE OF SERVICE
This is to certify that on February 23, 2015, a true and correct
copy of the above and foregoing document was served on the Milam
County District Attorney's Office, by electronic transmission at
wwtorrey@milamcounty.net and dkeen@milamcounty.net, electronic
transmission was reported as complete.
_______________________
Benton Ross Watson
2004
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CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation of TEX. R. APP. P.
9.4(i) because this brief contains 11,881 words, excluding the parts of
the brief exempted by TEX. R. APP. P. 9.4(i)(1).
2. This brief complies with the typeface requirements and the type style
requirements of TEX. R. APP. P. 9.4(e) because this brief has been
produced on a computer in conventional typeface using Microsoft
Word in Times New Roman 14 point font in the body of the brief
and Times New Roman 12 point font in the footnotes.
3. The electronic file is virus and malware free.
____________________________________________
(Signature of filing party)
___Benton Ross Watson________________________
(Printed name)
___Sole Practitioner___________________________
(Firm)
__February 23, 2015___________________________
(Date)
2004
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APPENDICES
Trial Court's Order Granting State's Motion for Summary Judgment..................A-1
Trial Court's Order Denying Appellant's Motion for New Trial...........................A-2
Texas Code of Criminal Procedure Article 59.02......................................................B-1
Texas Code of Criminal Procedure Article 59.02......................................................B-2
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APPENDIX A-1
CAUSE NO. CV 36,279
THE STATE OF TEXAS § IN THE DISTRICT COURT
§
VS. § 20TH JUDICIAL DISTRICT
§
2004 DODGE RAM 1500 TXLP#CPL1988 § MILAM COUNTY, TEXAS
AND 2000 BUICK TXLP#CV1N8l7 §
ORDER GRANTING STATE'S MOTION FOR SUMMARY JUDGMENT
On the £ d a y of ``, 2014, came on to be heard the above
entitled and numbered Cause, wherein The State of Texas is Petitioner and Sedderick Alcorn and
LaToya Alcorn are Respondent(s). The property made the subject of this suit is set forth in detail in
the State's Notice of Seizure and Intended Forfeiture.
I.
Petitioner appeared by and through her attorney of record and announced ready for trial and
Respondent, Sedderick Alcorn, failed to appear.
Respondent, LaToya Alcorn, appeared by and through her attorney of record, Ross Watson.
II.
Respondent, Sedderick Alcorn, was served with a copy of Petitioner's Motion for Summary
Judgment and did not file contravening motion with affidavits and did not present evidence to
counter Petitioner's Motion for Summary Judgment.
Respondent, LaToya Alcorn, was served with a copy of Petitioner's Motion for Summary
Judgment and did file a contravening motion with affidavit and did present evidence to counter
1
351
IMAGED
Petitioner's Motion for Summary Judgment.
III.
The Court, after reviewing the pleadings is of the opinion Petitioner's Motion for Summary
Judgment produced evidence sufficient to show the property made the subject of this motion is
subject to forfeiture under the provisions of Chapter 59 of the Texas Code of Criminal Procedure,
and that Petitioner's Motion for Summary Judgment should be granted.
IV.
IT IS HEREBY ORDERED that Petitioner's Motion for Summary Judgment is, in all
things, GRANTED.
V.
IT IS ORDERED that the 2004 DODGE RAM 1500 TXLP#CPL 1988 and 2000 BUICK
TXLP#CV 1N817 are forfeited to the State of Texas, to be administered by the attorney
representing the State of Texas, pursuant to the applicable local agreements with the Milam
County Sheriff's Department, in a manner prescribed by Section 59.06, Texas Code of Criminal
Procedure, and that upon payment of all lawful liens the Texas Department of Transportation,
Motor Vehicle Division, is directed to issue good and sufficient title to such vehicle such that
will perfect title in the Milam County Sheriff's Office and any subsequent purchaser from said
agency. The Milam County Sheriff's Office will satisfy any outstanding lien(s), towing fees or
impound/storage fees on this vehicle, if any.
VI.
IT IS FURTHER ORDERED that any property which is held as evidence in any pending
civil forfeiture or criminal case and ordered distributed in this judgment, shall not be distributed
2
352
until such criminal or civil forfeiture case is final and/or the evidence hold removed.
All costs of Court are taxed against Respondent, Sedderick Alcorn and LaToya Alcorn for
which let execution issue if not timely paid.
SIGNED this /-f;~ day of ~ ,2014.
3
353
APPENDIX A-2
138
APPENDIX B-1
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Lexis Advance®
Research
Document: Tex. Code Crim. Proc. art. 59.02
Tex. Code Crim. Proc. art. 59.02
Copy Citation
This document is current through the 2013 3rd Called Session
Texas Statutes and Codes CODE OF CRIMINAL PROCEDURE TITLE 1. CODE
OF CRIMINAL PROCEDURE OF 1965 MISCELLANEOUS
PROCEEDINGS CHAPTER 59. FORFEITURE OF CONTRABAND
Art. 59.02. Forfeiture of Contraband
(a) Property that is contraband is subject to seizure and forfeiture under this chapter.
(b) Any property that is contraband other than property held as evidence in a criminal
investigation or a pending criminal case, money, a negotiable instrument, or a security that is
seized under this chapter may be replevied by the owner or interest holder of the property, on
execution of a good and valid bond with sufficient surety in a sum equal to the appraised value
of the property replevied. The bond may be approved as to form and substance by the court after
the court gives notice of the bond to the authority holding the seized property. The bond must be
conditioned:
(1) on return of the property to the custody of the state on the day of hearing of the forfeiture
proceedings; and
(2) that the interest holder or owner of the property will abide by the decision that may be made
in the cause.
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(c) An owner or interest holder's interest in property may not be forfeited under this chapter if
the owner or interest holder proves by a preponderance of the evidence that the owner or interest
holder acquired and perfected the interest:
(1) before or during the act or omission giving rise to forfeiture or, if the property is real
property, he acquired an ownership interest, security interest, or lien interest before a lis pendens
notice was filed under Article 59.04(g) of this code and did not know or should not reasonably
have known of the act or omission giving rise to the forfeiture or that it was likely to occur at or
before the time of acquiring and perfecting the interest or, if the property is real property, at or
before the time of acquiring the ownership interest, security interest, or lien interest; or
(2) after the act or omission giving rise to the forfeiture, but before the seizure of the property,
and only if the owner or interest holder:
(A) was, at the time that the interest in the property was acquired, an owner or interest holder
for value; and
(B) was without reasonable cause to believe that the property was contraband and did not
purposefully avoid learning that the property was contraband.
(d) Notwithstanding any other law, if property is seized from the possession of an owner or
interest holder who asserts an ownership interest, security interest, or lien interest in the property
under applicable law, the owner or interest holder's rights remain in effect during the pendency
of proceedings under this chapter as if possession of the property had remained with the owner
or interest holder.
(e) On motion by any party or on the motion of the court, after notice in the manner provided by
Article 59.04 of this code to all known owners and interest holders of property subject to
forfeiture under this chapter, and after a hearing on the matter, the court may make appropriate
orders to preserve and maintain the value of the property until a final disposition of the property
is made under this chapter, including the sale of the property if that is the only method by which
the value of the property may be preserved until final disposition.
(f) Any property that is contraband and has been seized by the Texas Department of Criminal
Justice shall be forfeited to the department under the same rules and conditions as for other
forfeitures.
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(g) An individual, firm, corporation, or other entity insured under a policy of title insurance
may not assert a claim or cause of action on or because of the policy if the claim or cause of
action is based on forfeiture under this chapter and, at or before the time of acquiring the
ownership of real property, security interest in real property, or lien interest against real property,
the insured knew or reasonably should have known of the act or omission giving rise to the
forfeiture or that the act or omission was likely to occur.
(h) (1) An owner or interest holder's interest in property may not be forfeited under this chapter
if at the forfeiture hearing the owner or interest holder proves by a preponderance of the
evidence that the owner or interest holder was not a party to the offense giving rise to the
forfeiture and that the contraband:
(A) was stolen from the owner or interest holder before being used in the commission of the
offense giving rise to the forfeiture;
(B) was purchased with:
(i) money stolen from the owner or interest holder; or
(ii) proceeds from the sale of property stolen from the owner or interest holder; or
(C) was used or intended to be used without the effective consent of the owner or interest
holder in the commission of the offense giving rise to the forfeiture.
(2) An attorney representing the state who has a reasonable belief that property subject to
forfeiture is described by Subdivision (1) and who has a reasonable belief as to the identity of
the rightful owner or interest holder of the property shall notify the owner or interest holder as
provided by Article 59.04.
(3) An attorney representing the state is not liable in an action for damages resulting from an act
or omission in the performance of the duties imposed by Subdivision (2).
(4) The exclusive remedy for failure by the attorney representing the state to provide the notice
required under Subdivision (2) is submission of that failure as a ground for new trial in a motion
for new trial or bill of review.
(i) The forfeiture provisions of this chapter apply to contraband as defined by Article 59.01(2)
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(B)(v) of this code only in a municipality with a population of 250,000 or more.
History
Enacted by Acts 1989, 71st Leg., 1st C.S., ch. 12 (H.B. 65), § 1, effective October 18, 1989; am.
Acts 1993, 73rd Leg., ch. 828 (S.B. 1285), § 2, effective September 1, 1993; am. Acts 2001,
77th Leg., ch. 438 (S.B. 626), § 2, effective September 1, 2001; am. Acts 2001, 77th Leg., ch.
929 (S.B. 563), § 1, effective September 1, 2001; am. Acts 2003, 78th Leg., ch. 1275 (H.B.
3506), § 2(9), effective September 1, 2003; am. Acts 2009, 81st Leg., ch. 87 (S.B. 1969), §
25.043, effective September 1, 2009.
Annotations
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APPENDIX B-2
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Research
Document: Tex. Code Crim. Proc. art. 59.04
Tex. Code Crim. Proc. art. 59.04
Copy Citation
This document is current through the 2013 3rd Called Session
Texas Statutes and Codes CODE OF CRIMINAL PROCEDURE TITLE 1. CODE
OF CRIMINAL PROCEDURE OF 1965 MISCELLANEOUS
PROCEEDINGS CHAPTER 59. FORFEITURE OF CONTRABAND
Art. 59.04. Notification of Forfeiture Proceeding
(a) If a peace officer seizes property under this chapter, the attorney representing the state shall
commence proceedings under this section not later than the 30th day after the date of the
seizure.
(b) A forfeiture proceeding commences under this chapter when the attorney representing the
state files a notice of the seizure and intended forfeiture in the name of the state with the clerk of
the district court in the county in which the seizure is made. The attorney representing the state
must attach to the notice the peace officer's sworn statement under Article 59.03 of this code or,
if the property has been seized under Article 59.12(b), the statement of the terms and amount of
the depository account or inventory of assets provided by the regulated financial institution to
the peace officer executing the warrant in the manner described by Article 59.12(b). Except as
provided by Subsection (c) of this article, the attorney representing the state shall cause certified
copies of the notice to be served on the following persons in the same manner as provided for
the service of process by citation in civil cases:
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(1) the owner of the property; and
(2) any interest holder in the property.
(c) If the property is a motor vehicle, and if there is reasonable cause to believe that the vehicle
has been registered under the laws of this state, the attorney representing the state shall ask the
Texas Department of Motor Vehicles to identify from its records the record owner of the vehicle
and any interest holder. If the addresses of the owner and interest holder are not otherwise
known, the attorney representing the state shall request citation be served on such persons at the
address listed with the Texas Department of Motor Vehicles. If the citation issued to such
address is returned unserved, the attorney representing the state shall cause a copy of the notice
of the seizure and intended forfeiture to be posted at the courthouse door, to remain there for a
period of not less than 30 days. If the owner or interest holder does not answer or appear after
the notice has been so posted, the court shall enter a judgment by default as to the owner or
interest holder, provided that the attorney representing the state files a written motion supported
by affidavit setting forth the attempted service. An owner or interest holder whose interest is
forfeited in this manner shall not be liable for court costs. If the person in possession of the
vehicle at the time of the seizure is not the owner or the interest holder of the vehicle,
notification shall be provided to the possessor in the same manner specified for notification to an
owner or interest holder.
(d) If the property is a motor vehicle and is not registered in this state, the attorney representing
the state shall attempt to ascertain the name and address of the person in whose name the vehicle
is licensed in another state. If the vehicle is licensed in a state that has a certificate of title law,
the attorney representing the state shall request the appropriate agency of that state to identify
the record owner of the vehicle and any interest holder.
(e) If a financing statement is required by law to be filed to perfect a security interest affecting
the property, and if there is reasonable cause to believe that a financing statement has been filed,
the attorney representing the state who commences the proceedings shall ask the appropriate
official designated by Chapter 9, Business & Commerce Code, to identify the record owner of
the property and the person who is an interest holder.
(f) If the property is an aircraft or a part of an aircraft, and if there is reasonable cause to believe
that a perfected security instrument affects the property, the attorney representing the state shall
request an administrator of the Federal Aviation Administration to identify from the records of
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that agency the record owner of the property and the holder of the perfected security instrument.
The attorney representing the state shall also notify the Department of Public Safety in writing
of the fact that an aircraft has been seized and shall provide the department with a description of
the aircraft.
(g) If the property is real property, the attorney representing the state, not later than the third
day after the date proceedings are commenced, shall file a lis pendens notice describing the
property with the county clerk of each county in which the property is located.
(h) For all other property subject to forfeiture, if there is reasonable cause to believe that a
perfected security instrument affects the property, the attorney representing the state shall make
a good faith inquiry to identify the holder of the perfected security instrument.
(i) Except as provided by Section (c) of this article, the attorney representing the state who
commences the proceedings shall cause the owner and any interest holder to be named as a party
and to be served with citation as provided by the Texas Rules of Civil Procedure.
(j) A person who was in possession of the property at the time it was seized shall be made a
party to the proceeding.
(k) If no person was in possession of the property at the time it was seized, and if the owner of
the property is unknown, the attorney representing the state shall file with the clerk of the court
in which the proceedings are pending an affidavit stating that no person was in possession of the
property at the time it was seized and that the owner of the property is unknown. The clerk of
the court shall issue a citation for service by publication addressed to "The Unknown Owner of
," filling in the blank space with a reasonably detailed description of the property subject to
forfeiture. The citation must contain the other requisites prescribed by and be served as provided
by Rules 114, 115, and 116, Texas Rules of Civil Procedure.
(l) Proceedings commenced under this chapter may not proceed to hearing unless the judge who
is to conduct the hearing is satisfied that this article has been complied with and that the attorney
representing the state will introduce into evidence at the hearing any answer received from an
inquiry required by Subsections (c)--(h) of this article.
History
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Enacted by Acts 1989, 71st Leg., 1st C.S., ch. 12 (H.B. 65), § 1, effective October 18, 1989; am.
Acts 1991, 72nd Leg., ch. 14 (S.B. 404), § 282, effective September 1, 1991; am. Acts 1995,
74th Leg., ch. 165 (S.B. 971), § 22(25), effective September 1, 1995; am. Acts 1995, 74th Leg.,
ch. 533 (S.B. 1217), § 1, effective September 1, 1995; am. Acts 2001, 77th Leg., ch. 438 (S.B.
626), § 4, effective September 1, 2001; am. Acts 2009, 81st Leg., ch. 933 (H.B. 3097), § 3B.02,
effective September 1, 2009.
Annotations
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