Opinion filed December 31, 2015




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-13-00306-CV
                                  __________

0.089 ACRES OF LAND BLK: 015, LOT: 012, ADDN: SUPERIOR
    SEC 3 PHYSICALLY LOCATED AT 3607 TAMPICO DR.,
  MIDLAND, TEXAS, MIDLAND COUNTY, TEXAS, Appellant
                                         V.
                    THE STATE OF TEXAS, Appellee

                    On Appeal from the 441st District Court
                              Midland County, Texas
                         Trial Court Cause No. CV48824


                     MEMORANDUM OPINION
      This is a forfeiture case under Chapter 59 of the Texas Code of Criminal
Procedure. After the trial court conducted a hearing on the State’s amended notice
of seizure and intended forfeiture, it forfeited “any and all interest of Robert Jason
Parks, in the 0.089 ACRES OF LAND AND IMPROVEMENTS LOCATED AT
3607 TAMPICO DR. MIDLAND, TEXAS BLK: 015, LOT 012, ADDN:
SUPERIOR SEC 3 MIDLAND COUNTY, TEXAS” to the State of Texas, namely
the “Midland County District Attorney, as agent of the State of Texas.” The trial
court also held that “[a]ll title in 0.089 ACRES OF LAND AND
IMPROVEMENTS LOCATED AT 3607 TAMPICO DR. MIDLAND, TEXAS
BLK: 015, LOT 012, ADDN: SUPERIOR SEC 3 MIDLAND COUNTY,
TEXAS is perfected in the Midland County District Attorney.” We affirm.
      Robert J. Cooper created a spendthrift trust for the benefit of his grandson,
Robert Jason Parks. Cooper named Ruth Ann Hughes, Cooper’s daughter, as trustee.
Ruth, who is Parks’s mother, was to administer the trust for Parks’s benefit, and any
balance that remained in the trust at Parks’s death was to be distributed in equal
shares to Ruth Ann Hughes and Cooper’s granddaughter, free of any trust.
      In accordance with the powers given to her as trustee of the Parks trust, Ruth
purchased a home located at 3607 Tampico Drive in Midland. She purchased the
property with money exclusively from the Parks trust and bought it so that Parks
would have a place to live—a place that would be conducive to successful
monitoring of his diabetes. Ruth also testified that she bought the property for Parks
to live in because she did not think that a thirty-year-old man should be living with
his parents. According to Ruth, Parks’s credit history was such that he could not
lease an apartment. Further, Ruth thought that the house would be a good investment
property for the trust. The trust not only bought the property, it also furnished the
house, maintained the property, and paid taxes on it. Parks moved into the house on
February 11, 2011. Others who lived with Parks from time to time paid varying
amounts to the trust, and Ruth used those sporadically paid funds to cover
miscellaneous costs—such as homeowners’ association fees—associated with the
property.
      Subsequently, as personnel with the Midland Police Department were
engaged in an investigation of a heroin distribution ring, Parks and his friend Charles
Pittman were identified as persons who were mid-level heroin distributors in the
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organization. Parks and Pittman lived in the Tampico Drive house at the time of the
investigation.
         Ed Marker, a detective with the Midland Police Department, testified that the
investigation revealed that Parks and Pittman were involved in the distribution ring
and that the Tampico Drive house was the base for their mid-level heroin operation.
Multiple controlled buys made by cooperating individuals confirmed the fact that
the property was connected to the sale of heroin. A subsequent search of the
property, pursuant to a warrant, resulted in the recovery of penny scales, foil, and
plastic. All of those items are items like those that drug dealers use for weighing
and packaging illegal drugs. The packaging was like that used to package the drugs
that the cooperating individuals had purchased from Parks and Pittman. The police
also found a knife on the property; it field-tested positive for heroin.
         Law enforcement personnel arrested Parks and Pittman. Among other things,
federal authorities charged them with conspiracy to distribute more than 100 grams
of heroin. Parks pleaded guilty to one count of conspiracy to distribute and to
possess with intent to distribute 100 grams or more of heroin. The federal court
sentenced Parks to serve eighty-seven months in prison.
         Meanwhile, the State filed, and later amended, a notice of seizure and intent
to forfeit the Tampico Drive property. After Ruth had answered in the forfeiture
proceeding, her health deteriorated such that she resigned as trustee and appointed
her husband, James L. Hughes, as trustee, and he continued in the lawsuit as trustee.
After a subsequent bench trial, the trial court forfeited the Tampico Drive property
to the State.
         At no time during these proceedings did Ruth or James represent Parks. They
appeared only as trustees of the trust. Parks had his own attorney, and Parks did not
appeal from the judgment of the trial court. The only appellant, therefore, is the
trust.
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      In the first issue on appeal, James argues, on behalf of the trust, that the trial
court erred when it failed to apply Arizona law to the facts of this case because the
trust was created in Arizona and contained a choice-of-law provision. In the second,
third, and fourth issues on appeal, James makes some very sophisticated arguments
about special needs trusts, various other types of trusts, and remainderman
involvement. In the fifth issue on appeal, James asserts that the evidence was legally
and factually insufficient to support the trial court’s negative finding as to the
affirmative defense of “innocent owner.”
      Chapter 59 of the Texas Code of Criminal Procedure governs proceedings to
forfeit contraband. Property that is contraband is subject to forfeiture and seizure by
the State.    TEX. CODE CRIM. PRO. ANN. art. 59.02(a) (West Supp. 2015).
“Contraband” is “property of any nature, including real” property that is used in the
commission of the crimes referenced in Article 59.01(2).             Id. art. 59.01(2).
Possession of a controlled substance with intent to deliver is one of those crimes.
      The State commences forfeiture proceedings when it files a notice of the
seizure and intended forfeiture with the clerk of the district court in the county where
the seizure is made. Id. art. 59.04(b). In the case of real property, the State must
also file a lis pendens notice with the county clerk of each county where the property
is located. Id. art. 59.04(g).
      Article 59.05(b) provides that the trial court is to conduct forfeiture cases the
same as it does other civil cases. Id. art. 59.05(b) (West 2006). The State has the
burden to prove by a preponderance of the evidence that the property was subject to
forfeiture. Id. Therefore, the State had to prove by a preponderance of the evidence
that the property on Tampico Drive was contraband. In other words, it had to show
that the Tampico Drive property was used in the commission of a crime that is listed
in Article 59.01(2).


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      Additionally, the State must show that probable cause existed for seizing the
property. See Fifty-Six Thousand Seven Hundred Dollars in U.S. Currency v. State,
730 S.W.2d 659, 661 (Tex. 1987). In forfeiture cases, probable cause exists when
there is a reasonable belief that there is a substantial connection between the property
to be forfeited and the criminal activity set out in Chapter 59. Id.
      There has been no real argument at trial or on appeal as to whether Parks and
Pittman used the Tampico Drive property for their heroin distribution business.
Nevertheless, for context, we have reviewed the evidence and hold that it supports a
reasonable belief that there was a substantial connection between the Tampico Drive
property and delivery of heroin and that probable cause existed for seizing the
property.
      As we have indicated, Detective Marker testified at trial that Parks’s name
came up during the course of an investigation into a heroin distribution organization.
Parks and Pittman were thought to be mid-range persons in the heroin distribution
organization. These beliefs proved to be well-founded after cooperating sources
made several heroin purchases either at the Tampico Drive property or at other
locations shortly after Parks and Pittman left the Tampico Drive property and drove
to those other locations.
      Further, Detective Marker also testified that inside the Tampico Drive
property, officers found packaging materials similar to the materials used to package
the heroin that they had been buying through the cooperating sources. The police
also found a set of scales like those used to weigh quantities of controlled substances.
Additionally, inside the house on Tampico Drive, officers found a knife that
contained heroin residue.
      Finally, we again note that, as a result of the investigation, Parks pleaded
guilty in federal court to conspiracy to distribute and to possess with intent to
distribute 100 grams or more of heroin. We believe that the evidence supports a
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reasonable belief that there was a substantial connection between the Tampico Drive
property and criminal activity as set out in Chapter 59.
      In the first issue on appeal, James argues that the trial court erred when it did
not apply Arizona law to the trust. At trial, James’s counsel took issue with the fact
that that State had neither pleaded nor shown that the trust was invalid. Counsel
remarked that he did not know whether the “Court could even say it is or isn’t under
Arizona law.” The trial court responded: “Well, I would assume that Arizona law is
the same as Texas law unless you told me it’s different.” To which James’s lawyer
observed: “Who knows? And I’m not saying that it isn’t, Judge.” James has waived
his complaint that a different result would be required under Arizona law. See
Ogletree v. Crates, 363 S.W.2d 431, 435 (Tex. 1963) (When no proof of another
state’s law is introduced to the trial court and no request is made to take judicial
notice of that law, the other state’s law is presumed to be the same as the law in this
state.); see also TEX. R. EVID. 202. We overrule the first issue on appeal.
      In sophistication, James’s arguments on appeal are well beyond the arguments
that he presented to the trial court. Because the issues on appeal are different from
those raised in the trial court, they are waived. See TEX. R. APP. P. 33.1. However,
to the extent that James, in the second, third, and fourth issues on appeal complains
of the failure of the State to prove who or what entity owned the Tampico Drive
property, we hold that the State was not required to prove ownership. The State’s
burden was twofold: to prove by a preponderance of the evidence (1) that the
property on Tampico Drive was contraband in that it was used in the commission of
a crime that is listed in Article 59.01(2) and (2) that probable cause existed for
seizing the property. See Fifty-Six Thousand Seven Hundred Dollars, 730 S.W.2d
at 661. Even if that were not true, a beneficiary of a valid trust is the owner of the
equitable or beneficial title to the trust property and is considered the “real” owner
of trust property. City of Mesquite v. Malouf, 553 S.W.2d 639, 644 (Tex. Civ.
                                          6
App.—Texarkana 1977, writ ref’d n.r.e.). We overrule the second, third, and fourth
issues on appeal.
      In the fifth issue on appeal, James argues that the trial court erred when it
found that the trust was not an “innocent owner.” That a party is an “innocent
owner” is an affirmative defense under Chapter 59. The burden of proof was upon
the trust to prove that defense by a preponderance of the evidence. CRIM. PROC. art.
59.02(c). The burden was to prove that the trust acquired an ownership interest in
the real property before a lis pendens was filed and that the trust did not know or
should not reasonably have known, at or before the time of acquiring the ownership
interest, of the acts giving rise to the forfeiture or that the acts were likely to occur.
Id. at 59.02(c)(1).
      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. The point of error should
be sustained only if the contrary proposition is conclusively established. Croucher v.
Croucher, 660 S.W.2d 55, 58 (Tex. 1983).
      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. Id. As an
intermediate reviewing court, we must consider and weigh all of the evidence, and
we will set aside a verdict only if the evidence is so weak, or the finding is so against


                                            7
the great weight and preponderance of the evidence, that it is clearly wrong and
unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
       Ruth testified that she did not know that Parks was using heroin or that he had
distributed heroin. She first learned that Parks had been arrested on the distribution
charges the day after the arrest. However, at the time the trust purchased the
Tampico Drive property, she knew that in 2010 Parks had pleaded guilty in
Oklahoma to possession with intent to distribute nine pounds of marihuana.
       Parks lived in the Tampico Drive property from February 11, 2011, until the
date that the State seized the property in May 2012. During that time, the trust paid
for almost all of the costs there. Parks had roommates at times, and those roommates
paid a total of around $2,800 “for utilities from 2011, 2012.” Otherwise, Parks lived
at the Tampico Drive address and paid none of the costs. Ruth testified that Parks
had “brittle” diabetes, which affected his entire body, including his organs, and his
ability to take care of himself or to manage his property. There is no evidence in the
record that Parks was employed.
       The trust acquired an ownership interest in the Tampico Drive property before
a lis pendens was filed. However, we believe that the evidence fails to conclusively
show that Ruth, as trustee, did not know or should not reasonably have known, prior
to the time that the trust acquired the property, that it was likely that the property
would be used for illegal purposes. See CRIM. PROC. art. 59.02(c)(1). The evidence
is therefore legally sufficient to support the trial court’s failure to find that the trust
was an innocent owner of the Tampico Drive property.
       We have reviewed all of the evidence as outlined above and hold that the trial
court’s failure to find that the trust was an innocent owner of the Tampico Drive
property is not against the great weight and preponderance of the evidence. The
evidence is therefore factually sufficient.


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      The trust had the burden of proof on its claim that it was an innocent owner
of the premises; the trust failed to meet that burden. We overrule the fifth issue on
appeal.
      We affirm the judgment of the trial court.




                                             JIM R. WRIGHT
                                             CHIEF JUSTICE


December 31, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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