           Opinion iSSflC(l   November 1. 2012.




                                              In The
                                    (niirt    nf ;p.uak
                        2111th flisirirt      tif cxa at a1taa

                                      No. 051 1-00901-CV


                          $8,300.00 IN U.S. CURRENCY, Appellant

                                                V.

                               TIlE STTE OF TEXAS, Appellee


                      On Appeal from (Lw 382nd Judicial District court
                                 Rockw all County, Texas
                              Trial Court Cause No. 8-09-8


                              MEMORANDUM OPINION
                      Before Justices O’Neill, FitzGerald, and Lang-Miers
                                   Opinion By Justice O’Neill

       In this civil forfeiture appeal, Aladin Martinez challenges the legal and fhctual sufficiency

of the evidence to support the trial court’s judgment. We affirm.

                                      Factual Background

        On July 8, 2009, Detective Bobby Burks pulled over a black Mercedes SUV for failing to

signal a lane change and following too closely to another vehicle. Martinez was driving the SUV

and Jose Guzman was the passenger.

       After approaching the vehicle and initiating contact with Martinez, Detective Burks smelled

the distinct odor of burnt marijuana. Guzman told Detective Burks they had been in Arkansas
visiting thmily members hr two days. Martinez, however, told Detective i3urks a different story

during the stop. Martinez told him they went to Arkansas for a party and only stayed a couple of

hours. Martinez provided yet another story at trial. He testified he told i)eteetive [lurks he wanted

to take a birthday road trip. A man by the name of Daniel had loaned him the Mercedes SUV to test

drive for several days because he was interested in purchasing a classic car.’ Martinez claimed he

stopped to have the oil changed dunn the road trip, and a mechanic told him the car had mechanical

problems. Based on this information, he decided to drive back home.

         As part of his investigation. Detective Bunks asked if the car contained any large amounts of

currency. Martinez said no, but later admitted during trial that he knew $.3OO in cash was hidden

in the car at the time of the stop. He claimed he lied because he was nervous.

         Based on the smell of marijuana, [)etective Burks thought something illegal was going on

and decided to search the vehicle. He noticed the SUV was in disarray, and wooden screws holding

the glove compartment together. Based on his training and experience, he did not think it made

sense for a Mercedes to he in that condition.

         I-Ic observed marijuana shakes, stems, and seeds throughout the vehicle, including underneath

the cargo area and the carpet. As he continued his search, he noticed the smell of raw marijuana

coming from the rear of the vehicle, which made him think marijuana was transported in the vehicle.

He did not, however, find any marijuana inside the vehicle during his search.

         Detective Burks also testified regarding the condition of the dashboard. During his search,

he observed fresh fingerprints underneath the dashboard area of the SIJV. The plastic grommets that

normally hold the glove compartment were missing and replaced with wooden screws. He described




    Records showed the car was registered to L)aniel Beceffa.




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It as a good place to hide narcotics and considered it a hidden compartment.

         Underneath the compartment and the dashboard, i)etective i-3urks fbund an envelope, ru1)ber

banded, with money inside. Detective Burks clarified the money was not in the hidden compartment

hut pushed up in an area underneath the dashboard. Although he could see the envelope, he had to

bang the dash ibr it to fill. F-Ic testified that money “stuffed up   in   a dash is very unusual.” lhe

envelope contained Iburteen Si 0 bills, two hundred fiwty—three $20 bills, twenty—two $5() bills, and

twenty-two $100 bills totahng $8,300.00. Martinez claimed to not know anything about it.

        Detective Burks also testified to the condition of the sending unit, which is “the top of the

gas tank where all your stuff is plugged in.” 1—Ic explained the area was sealed off with silicone,

which was “odd because silicone is not used in vehicles. F-Ic testified that in his opinion, “it was

used in the past or it was used that day to transport narcotics and/or money.”

        Detective Burks testified that Martinez admitted to smoking ajoint inside the car. However,

when Martinez testified and! the State asked if he smoked inside the car, Martinez pleaded the Fifth

Amendment.

        Detective Burks further explained that based      on   his training, education, and! years of

experience with the Rockwall County Special Crimes Unit, he believed the $8,300 was illegal

proceeds from the sale of narcotics. 1—Ic substantiated his opinion because (1) Martinez and Guzman

gave inconsistent stories, (2) the vehicle was in disarray, (3) he smelled raw and burnt marijuana,

and (4) the packaging and location of the money was suspicious. All of these factors led him to

believe that, at some point, the vehicle carried a significant amount of marijuana. He also explained

the amount of money in the vehicle would be from the sale or purchase of a felony amount of

inarij uana, not   a   misdeincanor   amount.




                                                —3—
        The day after 1)etective I3urks recovered the money Ironi the SUV. the money was

transported   to ()liicer Josh Ellis’s home tor a K—9 snit’f test. The mone was placed in a cabinet in

()flicer Ellis’s garage. He let his K-9 partner loose in the garage. and the dog alerted to the odor of

narcotics   on the money. The dog specifically alerted by scratching on the cabinet where the money

was hidden, Officer Ellis explained his dog was certified to detect marijuana, metharnphetamine,

cocaine, and heroine but could not indicate the specific type of drug    on   the money.

       After a bench trial, the court granted a tinal judgment of frrfeiture in iiivor ol the State in the

amount of $S3OO.OO.       It further entered findinus of fact and conclusions of law in which it

concluded:

                 6. The alert by the drug dog on the currency, the evidence of
                 marijuana in the vehicle, the amount and location of the money found
                 in the vehicle, the alterations to the vehicle, the nervousness and
                 inconsistencies of stories of both occupants of the vehicle, and the
                 expert testimony of both officers supports the conclusion that more
                 likely than not the $8,300.00 found in the vehicle had recently been
                 in close proximity to a felony amount of mari)uana and was
                 substantially connected to the commission of’ a felony drug offense
                 and is thereFore contraband.

                 7. The State of Texas met its burden of proving by a preponderance
                 of the evidence, that the $8,30000 in United States Currency was
                 property used or intended to be used in the commission of a felony,
                 or was the proceeds derived from a felony, specifically used in the
                 commission of a felony, or was the proceeds derived from a felony,
                 specifically the possession of a felony amount of marijuanaa
                 violation of chapter 481 of the Texas Controlled Substance Act—and,
                 thus, subject to ForFeiture.

       This appeal followed.



                                   Requirements for Forfeiture

       In forfeiture proceedings, the burden is on the State to show probable cause for seizing a




                                                 -4-
person’s property. 556. 70() in US. Currency v. State, 73() S.W.2d 659, 6(, I (Tex. 1987). Probable

cause in the context of torfeiture statutes is a reasonable belief’ that a substantial connection exists

between the property to he firfeited and the criminal activity defined by the statute. Id. It is that

link, or nexus, between the property to be torleited and the statutorily detmed criminal activity that

establishes probable cause, without which the State lacks authority to seize a person’s property. hi.

        Proof may he made by circumstantial evidence, hut the proof must raise more than a mere

surmise or suspicion regarding the source of the money. $43, 774.00 in US. Currency v. State, 266

S.W.3d 178, 183 (Tex, App.—Texarkana 2008. pet. denied). However, the State is not required to

exclude every possible means by which Martinez might have acquired the money. $7,058.84 in US.

Ciu’reny v. State, 30 S.W.3d 580, 586 (Tex. App.-— Texarkana 2000. no pet.). The court may draw

any and all reasonable infi.rences from the circumstances shown by the evidence. Id.

        in the statutory scheme, property, including currency, is subject to seizure and fortèiture if’

it is found to he contraband. TEX. (‘ODE CRIM. PROC. ANN. art. 59.02(a) (West Supp. 2011).

Contraband is property used or intended to be used in the commission of certain felonies or proceeds

derived from those fi.Ionies. TEx. CoD1:CIuM. PRoC. ANN. art. 59.0l(2)(A)-(D) (West Supp. 2011).

In this case, contraband is money derived from or intended for use in manufacturing, delivering,

selling, or possessing a controlled substance. TEX. CODE CRIM. PROC. ANN. art. 5902(2)(B)(i)

(West Supp. 2011); see $43,774.00 in U.S. Currency v. State, 266 S.W.3d at 182. Delivery or

possession of marijuana greater than four ounces is a felony for which the forfeiture statute applies.

See TEX. CODE CRIM. PROC. ANN. art. 59.02(2)(A)(1), (B)(l ): TEx. HI:ALTH & SAFETY C0DEANN.

§   481.120-.121 (West 2010).

                                        Standard of Review

        Under the civil preponderance of evidence standards, evidence is legally insufficient when
there is a complete absence ol evidence ol a vital lad, the court is barred from giving weight to the

only evidence ollered   10   prove a vital tact, the evidence offered is   Ho   more than a scintilla, or the

evidence conclusively establishes the opposite of a vital fact. City of Keller v, Wilson, 168 S.W.3d

802. 810 (Tex. 2005). Ultimately, the question is whether the evidence at trial would enable

reasonable and Ihirminded people to reach the verdict under review. Id. at 827. In making this

determination, we credit favorable evidence ifa reasonable fact—finder could and disregard contrary

evidence unless a reasonable fact-finder could not. Id. So long as the evidence falls within the zone

of reasonable disagreement. we may not substitute our judgment far that of the fact-finder. Id. at

822.

        When considering a factual sufficiency challenge, we must consider and weieh all of the

evidence, not just that evidence that supports the verdict $43, 774.00 in US.        Currency,   266 S.W.3d

at 183. After considering and weighing all of the evidence, we set aside a verdict only if the

evidence is so weak or if the finding is so against the great weight and preponderance ofthe evidence

that it is clearly wrong and unjust. hi.

       The trial court’s findings of fact have the same force and dignity as a jury’s verdict on jury

questions and are reviewed for legal and factual sufficiency by the same standards that are applied

in reviewing the legal and factual sufficiency of the evidence supporting a jury’s answer to a jury

question. Id.

        When assessing the sufficiency of the evidence in a forfeiture case, courts have considered

the following factors: (1) the proximity of the money to the drugs and to evidence of drug trafficking,

(2) evidence that the money was previously in contact with drugs, such as through a canine alert, (3)

suspicious activity consistent with drug trafficking, (4) the amount of money at issue, and (5) the

presence of expert testimony indicating that there was probable cause to seize the property subject




                                                   —6—
to forfeiture, iii (hat a substantial connection exists between the property to be forh.ited and the

criminal activIty. Anirim   i   .Staw. 86 S. W.2d 809, 8 14 (Tex. App.   Austin 1 993, no writ). With

these factors in mind, we analyze the evidence as presented in this record.

                                   Legal Sufficiency of the Evidence

        Martinez argues that while the smell of marijuana. inconsistent stories by the passenger and

driver, and his admission of smoking marijuana may have given Detective Burks probable cause to

search the SUV, such evidence did not rise to the level of a reasonable belief that a substantial

connection or nexus existed between the money seized and the commission of a Felony for which

the lbrfeiture statute would apply. We disagree.

       Although Detective Burks did not find any marijuana inside the SUV, he hrnnd shakes,

stems, and seeds throughout the car, including underneath the cargo area and the carpet. He also

detected the odor of both burnt and raw marijuana inside the vehicle. Martinez admitted to smoking

a joint while dnving Moreover, Detective Burks found the money he seized hidden inside the SUV,

which was in close proximity to the marijuana shakes, seeds, and stems. He testified that in his

opinion the vehicle had been used to transport narcotics.

       The record also shows the money was previously in contact with drugs. The Texas Supreme

Court has authorized the consideration of a drug detection dog’s alert in determining if money found

in a search has a substantial connection to criminal activity. State v. $11,014.00, 820 S. W.2d 783,

785 (Tex. 1991). While a positive alert by a drug detection dog, standing alone, does not constitute

evidence that the money was use(l in connection with a drug deal, courts have held the alert

constitutes at least some evidence it was derived from the sale and/or distribution of drugs.

$7,058.84 in U.S. Currency, 30 S.W.3d at 588; $11,014.00, 820 S.W.2d at 785.
         liere, the money was placed inside a cabinet in Officer Ellis’s garage. When the dog

searched the garage, he scratched on the cahinet, which alerted to the odor ot a narcotic. Ofliccr

EHis testified the dog is trained once a week or every other week with “clean money,” which is

money that has never been in circulation, He said his dog had never had any difficulty differentiating

clean money from money that had been in contact with narcotics. Thus, this evidence is more than

a scintilla to connect the presence of narcotics and the money seized.

        The record also supports suspicious activity consistent with drug trafficking. In $43, 774.00

U.S. Currency v, State, the court concluded a secret compartment that opened by a remote switch

constituted a suspicious condition consistent with drug trafficking. 266 S.W.3d at 186. While there

could be other reasons to install a secret compartment. “the ver existence ofa hidden compartment

in a vehicle indicates the user of the vehicle may attempt to hide or secrete items in it.” Id.

        Detective Burks testi lied that the dashboard area ot’ the SU V had been altered. lie saw fresh

fingerprints underneath it and observed that wooden screws held it in place rather than the usual

plastic grommets. He opined it was a good place to hide narcotics. He fbund the rubber-banded

envelope full of’ money stuffed up underneath the dash and behind a door area. He had to bang the

dash for the money to fall out. He explained money “stuffed up in a dash [was] unusual.” There

was also evidence that the sending unit part of the gas tank was sealed off with silicone. He testified

that in his opinion, “it was used in the past or it was used that day to transport narcotics and/or

money.” Thus, the alterations made to the SUV constitute suspicious activity consistent with drug

trafficking.

        While the amount of money is not dispositive, it is a factor to consider. See $7, 058.84 in US.

Currency, 30 S.W.3d at 589 (noting probable cause for a felony does not arise solely from one piece

of evidence, but rather from the total pattern of circumstantial evidence). While perhaps not




                                                 —8—
substantial, the recovery of S30() is not an insignificant amount of money. Further, [)etcetive

l3urks testified that for a ““)9 vehicle, it’s probably   ..   worth more than that vehicle.,” which calls

into question Martinez’s story that he had the cash on hand to purchase the SUV. Likewise,

Detective l3urks stated it was significant that he found two hundred fortythree $20 bills in the

envelope     because “when people are buying narcotics, they generally use $20 hills.”

        Finally. Officer Burks provided his expert opinion that 58.300 buys more than fiur         ounces


of marijuana and it sells for more than four ounces. He testified the money was contraband because

of “the inconsistent stories, the disarray in the vehicle, the smell of narcotics, the smell of marijuana,

the smell of’ raw marijuana, and the way it was packaged and hidden.”

        After weighing the evidence, we conclude some evidence supports the trial court’s

conclusion the money was “used or intended to be used in the conunission of a felony, or was the

proceeds derived from a felony, specifically used in the commission of a felony, or was the proceeds

derived from a felony, specifically the possession of a felony amount of marijuana,” See, e.g.,

$43, 774.00 in U.S. Curreiui’, 266 S.W.3cl at 187 (concluding the evidence of a compartment that

appears to be installed for the purpose of secreting items, together with a positive dog alert on that

compartment supports a finding that money was derived from, or intended for use in, distribution

or possession of a controlled substance). Thus, considering the evidence in the light most favorable

to the trial court’s findings and conclusions and indulging in every reasonable inference that supports

them, we conclude the evidence is legally sufficient. Martinez’s legal sufficiency challenge is

overruled.

                                Factual Sufficiency of the Evidence

       Based on the evidence, we likewise conclude the State’s case was not so weak that the trial

court’s findings and conclusions were clearly wrong or manifestly unjust. Martinez argues it was




                                                  —9—
as reasonably probable thai he hid the mone so       it   would not get stolen. The equal intirencc rule

applies in weak circumstantial evidence cases where the facttinder would have to guess whether a

vital fact exists. Lewis   i.   Anderv(m, 173 SW.3d 556, 562 (Tex. App.—Dallas 2005. pet. denied).

As detailed above, the circumstantial evidence in this case is not weak.

        Although Martinez testified he had the money in his possession because he was looking to

buy a classic car, he hid it because he did not want anyone to find it, and he lied because the police

made him nervous, this conflicting evidence was considered and rejected by the trial court. We may

not reassess his credibility or substitute our judgment for that oithe fact—finder, even if the evidence

could support a different result. See Maritime Overs’ea.v Corp. v, Ellis, 971 S.W.2d 402, 407 (Tex.

199$). The trial court judged the credibility of the witnesses, determined the weight to he given the

testimony, and resolved conflicts and inconsistencies in the testimony. Accordingly, Martinez’s

factual sufficiency challenge is overruled.

                                               Conclusion

       Having overruled Martinez’s challenges to the legal and Factual sufficiency of the evidence,

we affirm the trial court’s judgment.



                                                          fri4AEL J. O’NE,TtL
                                                                       7
                                                           JUSTICE



1 1090 IF.U05




                                                  —10—
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                         ,41j111! Ji’3Ltii.L tL  &t! tt J&t1Lt

                                        JUDGMENT
$S,300.OO iN U.S. CURRENCY, Appellant               Appeal from the 382nd Judicial District
                                                    Court of Rockwall County, Texas,
No. O5 I I —009() I CV        V.                    (Tr.Ct. No. —O9--8).
                                                    Opinion delivered by Justice O’Neill,
THE STATE OF TEXAS, Appellee                        Justices FitzGerald and Lang-Miers,
                                                    participating.


        In accordance with this Court’s opinion of this date, the judgment of the trial court is
A1”F’l RM EI) It is ORDERED that appellee The State of Texas recover its costs of this appeal
from Aladin Martinez.


.Judgment entered November 1. 2() 12.




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