Opinion filed November 16, 2017


                                       In The



                                      In The

        Eleventh Court of Appeals
                                   __________

                              No. 11-16-00171-CV
                                  __________

                    THE STATE OF TEXAS, Appellant
                                         V.
           ONE MOTOR VEHICLE 2008 NISSAN PICKUP
               VIN #1N6AA07C88N305551, Appellee


                    On Appeal from the 42nd District Court
                           Taylor County, Texas
                       Trial Court Cause No. 48465-A


                     MEMORANDUM OPINION
      This is a forfeiture case under Chapter 59 of the Texas Code of Criminal
Procedure. TEX. CODE CRIM. PROC. ANN. ch. 59 (West 2006 & Supp. 2016). The
trial court entered a judgment in which it denied the State’s petition for the seizure
and forfeiture of a 2008 Nissan pickup owned by Randy Lee Courtright and his
spouse, Leslie Courtright. See id. We affirm.
      On appeal, the State contends that the trial court erroneously denied its
petition to seize and forfeit the pickup because the evidence was factually and legally
sufficient to establish that the State was entitled to seizure and forfeiture.
Specifically, the State asserts that the pickup was used “in the commission” of the
felony offenses of online solicitation of a minor and attempted aggravated sexual
assault. TEX. PENAL CODE ANN. § 33.021(b), (c) (West 2016), § 22.021 (West Supp.
2016).
      Under Chapter 59 of the Texas Code of Criminal Procedure, the State may
seize and forfeit property that qualifies as “contraband.” CRIM. PROC. art. 59.02(a).
“Contraband” is “property of any nature” that is used in the commission of the
crimes referenced in Article 59.01(2). Id. art. 59.01(2); 0.089 Acres of Land Blk:
015, Lot: 012, Addn: Superior Sec 3 Physically Located at 3607 Tampico Dr.,
Midland, Tex., Midland Cty., Tex. v. State, No. 11-13-00306-CV, 2015 WL
9584019, at *2 (Tex. App.—Eastland Dec. 31, 2015, pet. denied). Article 59.05(b)
provides that the trial court is to conduct forfeiture cases the same as it does other
civil cases: “[P]arties must comply with the rules of pleading as required in civil
suits.” CRIM. PROC. art. 59.05(b); see State v. One (1) 2004 Lincoln Navigator, VIN
#5LMFU27RX4LJ28242, 494 S.W.3d 690, 693 (Tex. 2016).
      The State has the burden to prove by a preponderance of the evidence that it
is entitled to forfeiture.    0.089 Acres of Land, 2015 WL 9584019, at *2.
Additionally, the State must show that probable cause existed to seize the property.
One (1) 2004 Lincoln Navigator, 494 S.W.3d at 698–99. In a civil forfeiture context,
probable cause is defined as “a reasonable belief that ‘a substantial connection exists
between the property to be forfeited and the criminal activity defined by the statute.’”
State v. Ninety Thousand Two Hundred Thirty-Five Dollars & No Cents in U.S.
Currency ($90,235), 390 S.W.3d 289, 293 (Tex. 2013) (quoting Fifty-Six Thousand


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Seven Hundred Dollars in U.S. Currency, 730 S.W.2d 659, 661 (Tex. 1987)). The
State may demonstrate the “substantial nexus” requirement through the use of
circumstantial   evidence.       See   One    (1)   2002      Cadillac   Deville,   VIN
1G6KD54Y42U228530 v. State, No. 04-12-00212-CV, 2012 WL 6618198, at *2
(Tex. App.—San Antonio Dec. 19, 2012, no pet.). However, such evidence must
raise more than mere suspicion. Id. In other words, the State must prove that it is
more probable than not that the seized item was either intended for use in, or derived
from, a violation of the enumerated offenses in the forfeiture statute. Vafaiyan v.
State, No. 2-09-098-CV, 2010 WL 3432819, at *7 (Tex. App.—Fort Worth Aug. 31,
2010, pet. denied) (mem. op.).
      If a party attacks the legal sufficiency of an adverse finding on an issue on
which it had the burden of proof, that party must show that the evidence established,
as a matter of law, all vital facts in support of that issue. Sterner v. Marathon Oil
Co., 767 S.W.2d 686, 690 (Tex. 1989). When we review a “matter of law”
challenge, we must first examine the record for evidence that supports the finding
and ignore all evidence to the contrary. Id. If we find that there is no evidence to
support the finding, then we will examine the entire record to determine whether the
contrary proposition is established as a matter of law. Id.
      When a party attacks the factual sufficiency of an adverse finding on an issue
on which it had the burden of proof, that party must demonstrate that the adverse
finding is against the great weight and preponderance of the evidence. Dow Chem.
Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). As an intermediate reviewing court,
we must consider and weigh all the evidence, and we will set aside a verdict only if
the evidence is so weak, or the finding is so against the great weight and
preponderance of the evidence, that it is clearly wrong and unjust. Id.




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      During the forfeiture proceeding, the State presented the testimony of John
Graham, an investigator assigned to the Internet Crimes Against Children Task
Force of the Taylor County Sheriff’s Office. Graham testified that his department
creates online profiles to impersonate thirteen-year-old girls in an attempt to find
“potential child sex predators.” On July 22, 2013, a man who was later identified as
Randy Lee Courtright began communicating with Graham, who was then posing as
a thirteen-year-old girl. Graham described the communications with Randy as
“sexual in nature,” and he recalled that Randy made explicit comments, such as
“[m]aking me hard again,” in his texts.
      Randy proposed to meet on July 25, 2013. He told Graham that he would be
driving a dark green Nissan pickup. Randy also mentioned to Graham that he would
bring a form of birth control, and officers found a condom in an overhead visor of
the pickup. Randy confessed that, while he did not plan on having sex with the
minor, he was going to fondle her.
      The State asserts that Randy’s pickup is contraband because it was used in the
commission of two offenses: online solicitation of a minor and attempted aggravated
sexual assault. The State further asserts that the trial court incorrectly denied the
forfeiture on grounds of factual impossibility. The State cites to Chen v. State for
the proposition that the nonexistence of a victim does not preclude a defendant from
being charged with an attempted sex crime. 42 S.W.3d 926, 929 (Tex. Crim. App.
2001).
      We agree that factual impossibility is not a defense to an attempted sexual
crime. Id.; Clark v. State, No. 03-11-00085-CR, 2014 WL 708910, at *2 (Tex.
App.—Austin Feb. 19, 2014, pet. ref’d). The fact that Randy conversed with
Graham, and not a thirteen-year-old girl, vitiated neither his intent to communicate
with a minor in a sexually explicit manner nor his solicitation to meet in person to


                                          4
perform sexual acts. Radford v. State, No. 11-15-00108-CR, 2016 WL 859478, at
*2 (Tex. App.—Eastland Mar. 3, 2016, pet. ref’d) (mem. op., not designated for
publication) (“[I]t is the conduct of requesting a minor to engage in illegal sexual
acts that is the gravamen of the offense.” (quoting Ex parte Lo, 424 S.W.3d 10, 16–
17 (Tex. Crim. App. 2013))); see also PENAL § 33.021. However, Randy formed the
requisite intent to complete the offense of online solicitation of a minor. Therefore,
the trial court could conclude that Randy did not use his pickup before or during the
commission of an online offense.
      We again acknowledge that two offenses formed the basis of the State’s
petition. Although we agree that the online solicitation of a minor could not be the
basis for the forfeiture of the pickup, the State also requested forfeiture of the pickup
based on an allegation of attempted aggravated sexual assault.
      Section 22.021 specifies particular ways to commit the offense of aggravated
sexual assault. Randy did not use his vehicle to commit or facilitate any of the listed
sexual acts. Moreover, Randy stated that he intended only to “fondle” the minor and
that he did not intend to have sex with her. This is distinguishable from Chen, where
the defendant gave a voluntary statement admitting that he was “going to show a girl
how to have sex.” Chen, 42 S.W.3d at 928. Based on this testimony, the Court of
Criminal Appeals upheld the defendant’s conviction for attempted sexual
performance by a child in violation of Section 43.25(b) of the Texas Penal Code. Id.
at 927. Unlike Section 22.021, Section 43.25(b) of the Texas Penal Code more
generally prohibits “sexual conduct or a sexual performance” by a child. Based on
the voluntary statement, the court in Chen concluded that the defendant intended to
commit sexual performance by a child, regardless of whether the child existed. Id.
at 930. Without reaching the issue of factual impossibility, we can defer to the trial
court’s implicit factual findings that Randy lacked the requisite intent to perform any


                                           5
of the particular actions prohibited under Section 22.021. The State failed to meet
its burden with respect to every element of the underlying allegation. Therefore, it
cannot base its forfeiture on attempted aggravated sexual assault.
      Randy also did not use the pickup after his attempted offense; police officers
immediately arrested him. The State relies on two cases, One 2003 Dodge and 1985
Cadillac Limousine, to assert that vehicles used to facilitate a crime by transporting
the defendant to the crime scene are subject to forfeiture. See State v. One 2003
Dodge, No. 05-05-01495-CV, 2006 WL 1900889, at *1 (Tex. App.—Dallas July 12,
2006, no pet.) (mem. op.); A 1985 Cadillac Limousine, Owned by Neubauer v. State,
835 S.W.2d 822, 824 (Tex. App.—Houston [1st Dist.] 1992, writ denied).
      The cases relied on by the State are distinguishable because the facts of those
cases indicate that the vehicles subject to forfeiture were not used simply for
transportation. In One 2003 Dodge, the court held that the defendant used the Dodge
“in the commission” of aggravated robbery when the defendant used the vehicle to
drive to a restaurant and placed the vehicle and its keys in a position that facilitated
a quick getaway. One 2003 Dodge, 2006 WL 1900889, at *1–2. Similarly, in 1985
Cadillac Limousine, the defendant used the limousine “in the commission” of a drug
trafficking offense when the defendant used the vehicle to transport him to a location
where he purchased cocaine and afterward, inside the vehicle, distributed the
cocaine to several individuals for use. 1985 Cadillac Limousine, 835 S.W.2d at 825.
      Unlike those cases, Randy only used the pickup to transport himself to the
parking lot across from Gill Park, the agreed-upon meeting location. The record
does not clearly reflect that Randy intended to use the vehicle to perform sexual acts
with a child, and we decline to reach that assumption simply because Randy
mentioned his “truck, apartment, or many outdoor places” as optional places to have
sex. Instead, we defer to the trial court’s implicit findings of fact and hold (1) that


                                           6
the State failed to establish as a matter of law that the pickup was used in the
commission of the alleged offenses and (2) that the trial court’s verdict is not against
the great weight and preponderance of the evidence. See Sterner, 767 S.W.2d at
690; Dow Chem. Co., 46 S.W.3d at 242. We overrule the State’s single issue on
appeal.
      We affirm the judgment of the trial court.




                                                      JIM R. WRIGHT
                                                      CHIEF JUSTICE


November 16, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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