      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00704-CV



  2004 Dodge Ram 1500 TX LP #CPL1988 and 2000 Buick TX LP #CV1N817, Appellants

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
        NO. CV 36,279, HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING



                             MEMORANDUM OPINION


               This is an appeal from a forfeiture proceeding brought under Chapter 59 of the Texas

Code of Criminal Procedure in which the trial court ordered the forfeiture of two vehicles seized

from the home of appellant LaToya Alcorn. The parties filed cross motions for summary judgment,

and the trial court granted the State’s motion. LaToya1 contends that the trial court erred by granting

summary judgment in favor of the State because the evidence raises a fact issue as to whether the

State failed to provide her with service of process within the statute of limitations. We will reverse

and remand.




       1
          For clarity, we refer to appellant as “LaToya” and her husband, Sedderick Alcorn,
as “Sedderick.”
                                         BACKGROUND

I.     The State seized vehicles from LaToya’s residence

               The summary-judgment evidence reflects that, on March 6, 2014, officers arrived at

LaToya’s home and presented her with a warrant to search and seize a Dodge truck and a Buick

sedan located at her residence. The seizing officer’s affidavit in support of the warrant stated that

the vehicles were subject to forfeiture because Sedderick Alcorn, LaToya’s husband, had been

observed using them to sell illegal narcotics. The affidavit stated that records from the Texas

Department of Motor Vehicles indicated that the truck and sedan were registered to James Rackley

and Gill Shamsher respectively, but that the officer had confirmed that neither claimed an interest

in the vehicles. The officer believed that Sedderick had purchased the vehicles to sell narcotics and

thus had intentionally failed to transfer title of ownership. Sedderick was incarcerated at the time

of seizure. The officers allowed LaToya to remove various personal items from the vehicles, and

she signed an inventory form listing those items.


II.    Forfeiture proceedings

               The State filed a notice of seizure and intended forfeiture on March 18, 2014,

contending that the vehicles were contraband subject to forfeiture under Chapter 59 of the Texas

Code of Criminal Procedure. The State named Sedderick, Rackley, and Shamsher as persons who

may own or hold an interest in the vehicles and timely served those parties. LaToya was not

mentioned in the pleading or made a party to the proceeding at that time.




                                                 2
                Sedderick filed an answer on April 7, 2014.2 Although LaToya had not been served,

she filed an answer and general denial on May 28, 2014. The State did not serve her with notice of

the suit but sent her discovery. She responded on July 7, 2014, and indicated that she claimed an

interest in the vehicles.

                The State filed a motion for summary judgment against LaToya and Sedderick on

July 10, 2014. On July 23, 2014, LaToya amended her answer to add three affirmative defenses:

statute of limitations, innocent owner, and disproportional forfeiture. She also filed a pleading

containing a response to the State’s motion for summary judgment and her own motion for summary

judgment. The State did not file a response. On August 5, 2014, the State amended its notice of

seizure and intended forfeiture to add LaToya as a party and served her with process—152 days after

the vehicles had been seized.

                After a hearing on both motions, the trial court granted the State’s motion for

summary judgment and ordered the vehicles forfeited to the State of Texas.3 In six issues, LaToya

appeals the summary judgment granted in favor of the State.




        2
          Neither Rackley nor Shamsher filed an answer, and the trial court entered a Stipulated
Forfeiture and Judgment against Rackley and default judgment against Shamsher.
        3
          The order granting the State’s motion for summary judgment constitutes an implicit denial
of LaToya’s motion for summary judgment. See General Agents Ins. Co. of Am., Inc. v. El Naggar,
340 S.W.3d 552, 557 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (“When parties present
cross-motions that are opposed and mutually exclusive, an order that grants one motion may
implicitly deny the other.”).

                                                3
                                   STANDARD OF REVIEW

               We review a trial court’s summary-judgment rulings de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We take as true all evidence favorable to the

non-movant and indulge every reasonable inference in the non-movant’s favor. Id. The party moving

for summary judgment must demonstrate that no material fact issue exists and that it is entitled to

judgment as a matter of law. See Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst.

v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). The party must establish each element of its claim as a

matter of law or negate an element of the respondent’s claim or defense as a matter of law. See M.D.

Anderson, 28 S.W.3d at 23; Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999). If the

party opposing a summary judgment relies on an affirmative defense, she must present

summary-judgment evidence sufficient to raise a fact issue on each element of the defense to avoid

summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).

               When both parties file motions for summary judgment and one is granted and the

other is denied, the appellate court may determine all questions presented, including the propriety

of the order denying the losing party’s motion, and render the judgment the trial court should have

rendered. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988). But a party seeking to appeal the

denial of the party’s own motion for summary judgment must raise the trial court’s failure to grant

the party’s motion as a point of error on appeal Cotten v. Deasey, 766 S.W.2d 874, 879 (Tex.

App.—Dallas 1989, writ denied); Buckner Glass & Mirror Inc. v. T.A. Pritchard Co., 697 S.W.2d 712,

714–15 (Tex. App.—Corpus Christi 1985, no writ); Holmquist v. Occidental Life Ins. Co.,

536 S.W.2d 434, 438 (Tex. Civ. App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.).



                                                 4
                                          DISCUSSION

               In her first issue, LaToya claims that the trial court erred by granting the State’s

motion for summary judgment because she conclusively proved, or raised a fact issue on, every

element of her limitations defense.


I.     Applicable law

       A.      Property found to be contraband is subject to forfeiture

               The State’s right to bring a forfeiture action is governed by Chapter 59 of the Texas

Code of Criminal Procedure. State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex. 2004);

$24,156.00 in U.S. Currency v. State, 247 S.W.3d 739, 743–44 (Tex. App.—Texarkana 2008, no

pet.). Property is subject to seizure and forfeiture if it is found to be contraband. Tex. Code Crim.

Proc. art. 59.02(a). Contraband is property used or intended to be used in the commission of

certain felonies, or proceeds derived from those felonies.         Id. art. 59.01(2)(a)–(d); Silver

Chevrolet, 140 S.W.3d at 692. Rules of strict construction against forfeiture must be applied.

$24,156.00, 247 S.W.3d at 747; State v. Lot 10, Pine Haven Estates, 900 S.W.2d 400, 402 (Tex.

App.—Texarkana 1995, no writ).


       B.      The State must commence a forfeiture action within 30 days of seizure

               Rules governing pleadings and service of process in civil cases govern forfeiture

proceedings. See Tex. Code Crim. Proc. arts. 59.04(b), (i), 59.05; $24,156.00, 247 S.W.3d at 743–

44. The statute provides, in relevant part, as follows:




                                                 5
        (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. . . . 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:

                (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 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.


Tex. Code Crim. Proc. art. 59.04(a)–(c) (emphasis added). Accordingly, the State must commence

its action no later than 30 days after it has seized property. Id. art. 59.04(a); Pine Haven, 900 S.W.2d

at 402. To commence an action, the State must file a notice of seizure and intended forfeiture and

provide service of process by citation to all necessary parties. See Gant v. DeLeon, 786 S.W.2d 259,

260 (Tex. 1990); $24,156.00, 247 S.W.3d at 747. When the property seized is a motor vehicle, the

State must serve (1) the owner of the property, (2) any interest holder in the property, and (3) the

person who was in possession of the vehicle at the time it was seized. Tex. Code Crim. Proc. art.

59.04(b)–(c).




                                                   6
II.    Application

                 In this case, it is undisputed that the State served LaToya after limitations had run as

a potential interest holder in the vehicles. The pivotal issue is whether the State was required to

serve her as the person in possession of the property at the time of seizure.


       A.        The parties’ arguments

                 In its motion for summary judgment, the State argued that it had established that the

vehicles were contraband and were thus subject to forfeiture as a matter of law. Id. arts. 59.01,

59.02. It further contended that LaToya could not prove an innocent-owner defense because she had

not demonstrated an interest in the vehicles. See id. art. 59.02(c)(1).

                 In her combined response and motion for summary judgment, LaToya argued that the

suit was barred by limitations because the State had not timely served her. She claimed that she was

entitled to service as a possessor of the vehicles at the time of seizure and produced evidence in

support of her claim. She produced evidence that included, in relevant part, the search warrant and

supporting affidavit; the seizing officer’s affidavit; the search inventory prepared by the seizing

officers; LaToya’s own affidavit; and government-issued documentation reflecting Sedderick’s dates

of incarceration. The State neither filed a response nor produced evidence on the issue of possession.

The trial court granted the State’s motion, but the trial court’s order did not mention the issue

of possession.

                 On appeal, the State points to evidence that it had timely served all parties it

reasonably believed owned or had an interest in the vehicles, including Sedderick and those listed

on the certificates of title. It also argues that it was reasonably diligent in serving LaToya once it

                                                    7
discovered that she claimed an interest in the vehicles.4 However, the State does not point to any

evidence showing that LaToya was not in possession of the property at the time of seizure. It

contends only that the evidence LaToya produced did not raise a fact issue as to whether she was in

possession. We disagree.


       B.      The record raises a fact issue as to whether LaToya was in possession of the
               vehicles at the time of seizure and that the State failed to timely serve her

               The forfeiture statute does not define “possession,” so we give the term its common

meaning. See Tex. Gov’t Code § 311.011(a); City of Rockwall v. Hughes, 246 S.W.3d 621, 625

(Tex. 2008). “Possession” is defined, in relevant part, as “the act or condition of having in or taking

into one’s control or holding at one’s disposal,” Webster’s Third New Int’l Dictionary 1770 (2002),

“[t]he fact of having or holding property in one’s power; the exercise of dominion over property,”

Black’s Law Dictionary 1281 (9th ed. 2009), or “[t]he right under which one may exercise control

over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use

of a material object.” Id.

               The record raises a fact issue as to whether LaToya was in possession of the vehicles

within the common meaning of that term. Specifically, the warrant affidavit indicated that the


       4
          When a party establishes that the State served the party after limitations has run, the State
must show that it used due diligence in effecting service. $24,156.00 in U.S. Currency v. State,
247 S.W.3d 739, 747 (Tex. App.—Texarkana 2008, no pet.). Here, the State argued that it was
diligent in serving LaToya as a potential interest holder because LaToya was not named on the title,
and the State served her after it discovered that she claimed an interest in the vehicles. By contrast,
the State does not claim diligence in serving her as the person in possession of the vehicles at the
time of seizure; it instead argues that she did not possess the vehicles at that time and thus was not
entitled to service as a possessor. Analysis of the possession issue, therefore, does not require a
diligence inquiry.

                                                  8
vehicles were kept at the address at which LaToya resided. When the officers knocked on the door

of the residence, LaToya answered and an officer presented her with the search warrant. Indeed, an

officer executing a warrant must present a copy of the warrant to the owner of a property to be

searched or “a person who is present [who] is in possession of the place.” Tex. Code Crim. Proc. art.

18.06(b) (emphasis added). The warrant and affidavit indicated that the “place” to be searched was

the vehicles. Given the State’s position that it did not believe that LaToya was an owner of the

vehicles, the officers must have presented her with the warrant as the person in possession of them

at that time. See id.

               Furthermore, LaToya’s affidavit and search inventory indicate that the officers

permitted LaToya to remove her personal items from the vehicles, including perfume, a house key,

and various papers that LaToya identified in an affidavit as her children’s medical records. These

items were listed on the inventory prepared by the officers. LaToya signed the inventory as “LaToya

Alcorn,” the same last name as Sedderick, who the State believed had purchased and used the

vehicles and was known by the State to have been incarcerated for weeks at the time of seizure.

               The State does not contest the validity of that evidence and instead challenges its

sufficiency to demonstrate possession within the meaning of the statute. It contends that the

evidence does not show “control and dominion over the vehicle as such to give rise to the inference

that she was in actual possession at the time of seizure” and shows only that LaToya “may have been

in possession of the vehicles at some point in the past.” But possession is not defined so narrowly.

Rather, the ordinary definition of that term includes “taking into one’s control or holding at one’s

disposal” and the “continuing exercise of a claim to the exclusive use of” property. Webster’s at



                                                 9
1770; Black’s at 1281. It is not limited to instances in which a person is in physical control of or

physically occupying property.

                The State’s interpretation would also undermine the purpose of service requirements

in forfeiture proceedings, which is to provide notice to interested parties of the pendency of the

action so that they may present their objections. See $24,156.00, 247 S.W.3d at 744; see also

Fuentes v. Shevin, 407 U.S. 67, 81 (1972) (notice and hearing requirements “protect [a person’s] use

and possession of property from arbitrary encroachment—to minimize substantively unfair or

mistaken deprivations of property”). That would reasonably include the person with the right to

exercise control over a vehicle at the time the State seized it, even if that person was not physically

occupying the vehicle at the time of seizure.

                The record raises a fact issue as to whether LaToya was in possession of the vehicles

when the State seized them and was thus entitled to service within the limitations period. Because

the State failed to timely serve her, we sustain LaToya’s first issue and hold that the trial court erred

in granting summary judgment in favor of the State.5


        C.      This Court may not reverse and render judgment and may only reverse and
                remand for further proceedings

                In her prayer, LaToya asks this Court to “reverse and render judgment that the statute

of limitations bars forfeiture” or “reverse and remand on all issues.” However, she has not appealed

the trial court’s denial of her own motion for summary judgment and challenges only the trial court’s




        5
         Because we reverse the trial court’s judgment on this issue, we need not reach LaToya’s
remaining issues, which all challenge the granting of summary judgment in favor of the State.

                                                   10
granting of the State’s motion.6 A reviewing court may not render judgment in favor of a party that

has not appealed the denial of the party’s motion for summary judgment. See, e.g., Cotten,

766 S.W.2d at 879 (declining to render judgment where “the only error assigned by the appellants

complains of the granting of the appellee’s motion for summary judgment and there is no assignment

of error that the trial court erred in failing to grant the appellant’s own motion for summary

judgment”); Buckner, 697 S.W.2d at 714–15 (declining to render judgment because appellant raised

only the improper grant of summary judgment and not the denial of appellant’s own motion, despite

that appellant asked the court to “reverse and render or alternatively reverse and remand” the case);

Holmquist, 536 S.W.2d at 438 (declining to render judgment, despite finding no fact issues, because

issue of denial not raised). We therefore reverse and remand the cause for further proceedings.

Jones, 745 S.W.2d at 900 (if court finds reversible error in summary judgment, it reverses the

judgment and remands the cause to the trial court).


                                         CONCLUSION

               The State failed to demonstrate that it was entitled to summary judgment on its

forfeiture action as a matter of law. We therefore reverse the trial court’s judgment and remand the

cause for further proceedings consistent with this opinion.




       6
          Her six issues challenge the trial court’s granting of the State’s motion for summary
judgment on various grounds, and her statement of the case frames her appeal as challenging the
grant of summary judgment. Nowhere in her brief does she claim to challenge the trial court’s denial
of her motion for summary judgment.

                                                 11
                                            _________________________________________
                                          Cindy Olson Bourland, Justice

Before Justices Puryear, Pemberton, and Bourland

Reversed and Remanded

Filed: August 26, 2016




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