                              NUMBER 13-07-00326-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


LOT 6, NW 17' OF 5, BLOCK 5,
PORT LAVACA ORIGINAL TOWNSITE,
(401 S. COMMERCE),                                                              Appellant,

                                             v.

THE STATE OF TEXAS,                                                             Appellee.


   On appeal from the 24th District Court of Calhoun County, Texas.



                         MEMORANDUM OPINION
                 Before Justices Rodriguez, Garza, and Vela
                  Memorandum Opinion by Justice Garza

       This appeal arises from a civil forfeiture proceeding involving the seizure of a house

owned by appellant, David Sterling. Sterling appeals the trial court’s granting of the State’s

supplemental motion for summary judgment and argues that: (1) the trial court erred in

granting the motion because there is insufficient evidence to support forfeiture; and (2) the
forfeiture of his house constitutes a second punishment in violation of the Excessive Fines

Clause of the Eighth Amendment to the United States Constitution. See U.S. CONST .

amend. VIII. We affirm.

                                        I. BACKGROUND

       The State filed a notice of seizure and intended forfeiture of Sterling’s house located

at 401 South Commerce Street in Port Lavaca, Texas. In its forfeiture notice, the State

alleged that Sterling’s house was contraband because Sterling had been indicted with

several felony counts of unlawful delivery of a controlled substance. See TEX . HEALTH &

SAFETY CODE ANN . § 481.112(b), (c) (Vernon 2003). Sterling answered with a general

denial. The State then filed a traditional motion for summary judgment, asserting that the

house was contraband because Sterling possessed controlled substances in the house

that were intended for future distribution. The trial court granted the State’s motion for

summary judgment.

       On appeal, we reversed the trial court’s judgment and remanded for further

proceedings. Sterling v. State, 200 S.W.3d 842, 844 (Tex. App.–Corpus Christi 2006, no

pet.) (“Sterling I”). In Sterling I, we noted that:

       In this case, the evidence of “use” is so meager that we cannot conceive of
       a possession case occurring in a domestic setting that would not involve the
       same “use” shown here. Under the State’s interpretation of the law, any
       possession of drugs at home is “use” of the home under the statute and
       subjects the home to seizure and forfeiture as contraband. This rule of law
       would be inordinately and indiscriminately broad and would effectively
       abrogate the statute’s clear requirements that property be “used” or
       “intended to be used” in the commission of one of the enumerated felonies.

Id.

       On remand, the State filed a supplemental motion for summary judgment, once


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again contending that the house was contraband because Sterling possessed controlled

substances in the house and intended to deliver them. Sterling did not file a response to

the State’s supplemental motion for summary judgment.1 The trial court again granted

State’s motion for summary judgment, allowing the State to seize Sterling’s house. Sterling

filed a motion for new trial, arguing that this Court had already resolved this issue. After

a hearing, the trial court denied Sterling’s motion. This appeal followed.

                                           II. STANDARD OF REVIEW

A. Traditional Motion for Summary Judgment

         The propriety of a summary judgment is a question of law; therefore, an appellate

court reviews de novo the trial court's granting of summary judgment. Natividad v. Alexsis,

Inc., 875 S.W.2d 695, 699 (Tex. 1994). To be entitled to a traditional summary judgment,

the movant needs to establish its entitlement to summary judgment on the issues expressly

presented to the trial court by conclusively establishing all essential elements of its cause

of action or defense as a matter of law. TEX . R. CIV. P. 166a(c); Sw. Elec. Power Co. v.

Grant, 73 S.W.3d 211, 215 (Tex. 2002); Johnson County Sheriff's Posse, Inc. v. Endsley,

926 S.W.2d 284, 285 (Tex. 1996).



         1
          Sterling attached to his m otion for new trial an affidavit executed by his brother, W illiam , stating that
no response was filed to the State’s supplem ental m otion for sum m ary judgm ent because Sterling was
incarcerated and unrepresented “during the period that the supplem ental m otion . . . was filed and at the tim e
it was heard.” However, at the hearing on Sterling’s m otion for new trial, W illiam adm itted that he and Sterling
were aware of the State’s supplem ental m otion for sum m ary judgm ent and that W illiam was present at the
courthouse on the day the sum m ary judgm ent hearing was to be heard, but neither chose to file a response
to the State’s m otion.

          On Decem ber 20, 2006, Sterling filed a pro se m otion for leave, requesting that the trial court allow
him to file an untim ely response to the State’s supplem ental m otion for sum m ary judgm ent. The record does
not dem onstrate that the trial court ruled on Sterling’s pro se m otion for leave; however, because the trial court
granted the State’s supplem ental m otion for sum m ary judgm ent without the benefit of a response, the trial
court ostensibly denied Sterling’s m otion for leave.

                                                          3
         The non-movant is not required to file a response to defeat a motion for summary

judgment if deficiencies in the movant's own proof or legal theories defeat its right to

judgment as a matter of law. Medlock v. Comm'n for Lawyer Discipline, 24 S.W.3d 865,

870 (Tex. App.–Texarkana 2000, no pet.). However, if the respondent fails to file a

response, the only ground for reversal he or she may raise on appeal is the legal

insufficiency of the movant's summary judgment motion or proof. Medlock, 24 S.W.3d at

870; Pierson v. SMS Fin. II, L.L.C., 959 S.W.2d 343, 348 (Tex. App.–Texarkana 1998, no

pet.).

         It is well settled that a trial court may not grant a summary judgment by default; that

is, the court may not grant a summary judgment because the non-movant failed to respond

to the motion when the movant's summary judgment proof is legally insufficient. City of

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Swedlund v.

Banner, 970 S.W.2d 107, 109-10 (Tex. App.–Corpus Christi 1998, pet. denied). The

movant must still establish his or her entitlement to summary judgment by conclusively

proving all essential elements of his or her cause of action or defense as a matter of law.

Clear Creek Basin Auth., 589 S.W.2d at 678.

B. Legal Sufficiency

         In reviewing the legal sufficiency of evidence, we credit evidence supporting the

judgment if reasonable jurors could, and disregard contrary evidence unless reasonable

jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Villagomez v.

Rockwood Specialties, Inc., 210 S.W.3d 720, 748 (Tex. App.–Corpus Christi 2006, pet.

denied). We will sustain a legal sufficiency challenge only if: (1) there is a complete

absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence

                                                4
from giving weight to the only evidence offered to prove a vital fact; (3) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes

conclusively the opposite of a vital fact. City of Keller, 168 S.W.3d at 810. More than a

scintilla of evidence exists, and the evidence is legally sufficient, if the evidence furnishes

some reasonable basis for differing conclusions by reasonable minds about a vital fact's

existence. Lee Lewis Constr. Co. v. Harrison, 70 S.W.3d 778, 782-83 (Tex. 2001).

However, "when the evidence offered to prove a vital fact is so weak as to do no more than

create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla

and, in legal effect, is no evidence." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601

(Tex. 2004) (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

                                                III. ANALYSIS

A. Sterling’s House As Contraband

        By his first two issues, Sterling contends that there is insufficient evidence, or

alternatively no evidence, establishing that he used his house or intended to use his house

to effectuate the unlawful delivery of controlled substances.2 Conversely, the State argues

that Sterling’s house is subject to forfeiture because the evidence, including Sterling’s guilty

pleas and judicial confessions, establishes that the house was contraband and, therefore,

subject to forfeiture.

        1. Applicable Law

        "Property that is contraband is subject to seizure and forfeiture . . . ." TEX . CODE

        2
          W e construe Sterling’s first two issues on appeal as legal sufficiency challenges to the trial court’s
granting of the State’s supplem ental m otion for sum m ary judgm ent. See Medlock v. Comm'n for Lawyer
Discipline, 24 S.W .3d 865, 870 (Tex. App.–Texarkana 2000, no pet.) (holding that appellant m ay raise only
a legal sufficiency challenge when he fails to file a response to a m otion for sum m ary judgm ent).


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CRIM . PROC . ANN . art. 59.02(a) (Vernon 2006). Forfeiture is an in rem civil proceeding.

State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex. 2004); $191,452.00 v. State,

827 S.W.2d 430, 433 (Tex. App.–Corpus Christi 1992, writ denied). In a forfeiture

proceeding, the State must prove by a preponderance of the evidence that the property

seized is contraband and, therefore, that the property is subject to forfeiture. See TEX .

CODE CRIM . PROC . ANN . art. 59.02(a); see also 1.70 Acres v. State, 935 S.W.2d 480, 486

(Tex. App.–Beaumont 1996, no writ); $162,950.00 in Currency of U.S. v. State, 911

S.W.2d 528, 529 (Tex. App.–Eastland 1995, writ denied). "Contraband" is defined as

property of any nature, including real, personal, tangible, or intangible property that is used

or intended to be used in the commission of any felony under the Texas Controlled

Substances Act. See TEX . CODE CRIM . PROC . ANN . art. 59.01(2)(B)(i) (Vernon Supp. 2008).

       In a forfeiture proceeding, the State is required to show probable cause for seizing

the property. $56,700 in U.S. Currency v. State, 730 S.W.2d 659, 661 (Tex. 1987);

$9,050.00 in U.S. Currency v. State, 874 S.W.2d 158, 161 (Tex. App.–Houston [14th Dist.]

1994, writ denied). This means that the State must establish a substantial connection or

nexus between the seized property and the defined criminal activity. 1.70 Acres, 935

S.W.2d at 486 (citing $56,700 in U.S. Currency, 730 S.W.2d at 661; $9,050 in U.S.

Currency, 874 S.W.2d at 161). Therefore, in proving its case by a preponderance of the

evidence, the State must prove that it was more reasonably probable than not that the

seized property was either intended for use in, or derived from, a violation of one of the

offenses enumerated in the forfeiture statute. Id.; Spurs v. State, 850 S.W.2d 611, 614

(Tex. App.–Tyler 1993, writ denied) (noting that the State can rely on circumstantial

evidence in satisfying its burden of proof in a forfeiture case).

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       We also note that we employ rules of strict construction against forfeiture when the

forfeiture is to the sovereign and is created by statute. 1976 Harley Davidson Motorcycle

v. State, 106 S.W.3d 398, 402 (Tex. App.–Corpus Christi 2003, no pet.); State v. Lot 10,

Pine Haven Estates, 900 S.W.2d 400, 402 (Tex. App.–Texarkana 1995, no writ).

       2. Discussion

       The State attached the following items to its supplemental motion for summary

judgment: (1) an affidavit executed by an assistant district attorney; (2) two probable cause

affidavits, one executed by Derek Walton, a peace officer with the Port Lavaca Police

Department, and another executed by Johnny Amador, an investigator with the Calhoun

County Sheriff’s Office; (3) a search warrant executed by a justice of the peace; (4) two

indictments against Sterling; and (5) two guilty pleas entered by Sterling for unlawful

delivery of controlled substances. In particular, the probable cause affidavit executed by

Walton stated that: (1) Sterling lived at 401 South Commerce Street in Port Lavaca,

Texas; (2) powder cocaine was being sold at the house; and (3) Sterling and his brother

had been previously arrested twenty-two times with eight of the arrests being for dangerous

drugs. Based on this affidavit, the trial court authorized a search warrant of Sterling’s

house.

       While searching Sterling’s house, police found cocaine and heroin on the premises,

which resulted in Sterling being indicted by a Calhoun County grand jury with one count of

delivery of a controlled substance, cocaine, of more than one gram but less than four

grams (“Count 1"), see TEX . HEALTH & SAFETY CODE ANN . § 481.112(c), and one count of

delivery of a controlled substance, heroin, in the amount of less than one gram (“Count 2").

See id. § 481.112(b). The first indictment stated that the events transpired on or about

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May 27, 2004.

        On June 29, 2004, Amador filed a second probable cause affidavit detailing a

subsequent drug transaction occurring at Sterling’s house. In his affidavit, Amador noted

the following:

        [The confidential informant] has been at David Sterling’s residence within the
        past 72 hours and has witnessed the cocaine and heroin in this residence at
        401 S. Commerce and witnessed David Bauer Sterling who did then and
        there knowingly posses[s] a controlled substance, to wit: Cocaine and
        Heroin.

        [The confidential informant] stated David Bauer Sterling is possessing and
        trafficking Cocaine and Heroin from this residence in Port Lavaca[,] Calhoun
        County, Texas.[3]

A second indictment was then issued for the offense of delivery of a controlled substance,

heroin, of more than one gram but less than four grams occurring on June 29, 2004

(“Count 3"). See id. § 481.112(c).

        Pursuant to two plea agreements with the State, Sterling pleaded guilty to Count 2

and Count 3, admitting that he had intended to deliver a controlled substance, namely

heroin, on two separate occasions. The trial court accepted the terms of the plea

agreements, and Sterling was subsequently sentenced. Because the State has provided

evidence demonstrating that Sterling stored and sold controlled substances in his house,

and because Sterling judicially confessed to engaging in such activities, we conclude that

the State’s evidence is legally sufficient to establish that Sterling used or intended to use

his house to aid in the unlawful delivery of controlled substances, thus supporting a finding



        3
          In his affidavit, Am ador noted that the confidential inform ant had been found to be reliable and
credible and that previous inform ation provided by the confidential inform ation “was found to be true and
accurate each tim e.”

                                                     8
that the house was contraband subject to forfeiture. See TEX . CODE CRIM . PROC . ANN . art.

59.02(a); see also City of Keller, 168 S.W.3d at 810; Lot 39, Section C, N. Hills Subdivision

v. State, 85 S.W.3d 429, 432 (Tex. App.–Eastland 2002, pet. denied) (holding that

homesteads are not exempt from the forfeiture statutes); 1.70 Acres, 935 S.W.2d at 486;

Spurs, 850 S.W.2d at 614; Ex parte Camara, 893 S.W.2d 553, 559 (Tex. App.–Corpus

Christi 1994, writ denied) (affirming the trial court’s characterization of a mobile home as

contraband and, therefore, subjecting it to forfeiture). We further conclude that the State

has established its entitlement to summary judgment as a matter of law. See TEX . R. CIV.

P. 166a(c); see also Sw. Elec. Power Co., 73 S.W.3d at 215; Endsley, 926 S.W.2d at 285.

Accordingly, we overrule Sterling’s first two issues on appeal.

B. Forfeiture As a Second Punishment And The Eighth Amendment

       In his third issue, Sterling asserts that the forfeiture of his house constitutes an

impermissible second punishment and excessive fine. See U.S. CONST . amend. VIII.

However, we do not reach this issue because Sterling failed to file a response to the

State’s summary judgment motion and because his third issue does not constitute a legal

sufficiency challenge. See Clear Creek Basin Auth., 589 S.W.2d at 678 (“[T]he non-

movant needs no answer or response to the motion to contend on appeal that the grounds

expressly presented to the trial court by the movant’s motion are insufficient as a matter

of law to support summary judgment. The non-movant, however, may not raise any other

issues as grounds for reversal. Under the new rule, the non-movant may not urge on

appeal as reason for reversal of the summary judgment any and every new ground that he

can think of, nor can he resurrect grounds that he abandoned at the hearing.”) (emphasis

in original); see also Medlock, 24 S.W.3d at 870; Pierson, 959 S.W.2d at 348; Menchaca

                                             9
v. Menchaca, 679 S.W.2d 176, 177-78 (Tex. App.–El Paso 1984, no writ). Accordingly,

we overrule Sterling’s third issue.

                                      IV. CONCLUSION

        Having overruled all of Sterling’s issues on appeal, we affirm the judgment of the

trial court.

                                                   _______________________
                                                   DORI CONTRERAS GARZA,
                                                   Justice

Memorandum Opinion delivered and
filed this the 25th day of June, 2009.




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