Sixty Six Thousand Four Hundred Dollars ($66,400.00) in U.S. Currency v. State

NUMBER 13-99-721-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

SIXTY SIX THOUSAND FOUR

HUNDRED DOLLARS ($66,400.00)

IN U.S. CURRENCY, ET AL.

, Appellants,

v.

THE STATE OF TEXAS

, Appellee.

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On appeal from the 357th District Court of Willacy County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Opinion by Justice Dorsey

This is an appeal from a judgment ordering forfeiture of a handgun and $66,400.00 of U.S. Currency. The code of criminal procedure provides for forfeiture of contraband, which is defined as property that is used or intended to be used in the commission of certain felonies. See Tex. Code Crim. Proc. Ann. art. 59.01, 59.02. The appellant contends that the State failed to present legally and factually sufficient evidence to establish that the items were contraband. We agree, and reverse the judgment of the trial court and render judgment in favor of the appellant.

In order to justify forfeiture, the State must show a reasonable belief "that a substantial connection exists between the property to be forfeited and the criminal activity." $56,700 in U.S. Currency v. State, 730 S.W.2d 659, 661 (Tex. 1987). The evidence offered by the State in this case was that two men from Indiana who were driving north on Highway 77 in a pickup truck were stopped for failing to maintain a single lane. The officers discovered a gun located in the spare tire compartment in the bed of the truck and that the gas tank appeared to have been removed because paint on the nuts securing the tank had scratches. This can suggest drug activity because drugs are often transported in gas tanks. They requested consent to search the entire vehicle. A consensual search revealed a briefcase located under the seat containing $66,400 in cash and, hidden in the engine compartment, a small amount of marijuana (1.24 oz.). The gas tank was removed but no evidence of illegal activity was found.

The driver claimed ownership of the marijuana and said it was for recreational use. The passenger told the officers that the money was his and that he planned to use it to purchase property in Brownsville. He told the officers he did not know the exact amount of money in the briefcase, but estimated it was around $40,000.

From these facts, the officers concluded that the money was obtained either through some sort of illicit means or was going to be used for the purchase of narcotics or some other type of contraband. The evidence is not sufficient to support such an inference. Since possession of the 1.24 ounces of marijuana was only a misdemeanor, the State was required to show that the alleged contraband was a part of a larger, felonious drug crime. See Tex. Health & Saf. Code Ann. § 481.121.

The officers testified that the small amount of marijuana could have been a "sample" for a larger drug deal and the fact that the passenger did not know the exact amount of money in the briefcase could indicate that he was a "mule"--that is, someone who merely transports drugs or money for someone else and who, most likely, would not know how much money they were transporting. They also testified that the fact that the majority of the bills were twenty dollar bills leads to the conclusion that it was involved in a drug deal, because twenty dollar bills are the most common denomination used in drug cases. The officers also testified that when the two men were initially stopped, they gave conflicting accounts of why they were in the area. While the driver said they had been in the Valley for the last few days visiting some cousins and staying in a hotel, the passenger said that they had gone to Brownsville for the day looking for some friends, but, unable to find the friends, were returning to Indiana.

That evidence does not lead to the conclusion that the property seized was used or was intended to be used in the commission of a felony. Although there were suspicious circumstances, we can find no evidence that connects this seized property to illegal activity.

We hold there is no evidence establishing such a substantial link as required by law.

REVERSED.

______________________________

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 14th day of December, 2000.