                                                                            ACCEPTED
                                                                        03-14-00704-CV
                                                                                5027089
                                                             THIRD COURT OF APPEALS
                                                                        AUSTIN, TEXAS
                                                                   4/24/2015 2:58:04 PM
                                                                      JEFFREY D. KYLE
                                                                                 CLERK
             NO. 03-14-00704-CV

                                                  FILED IN
                IN THE             3rd COURT OF APPEALS
                                       AUSTIN, TEXAS
           COURT OF APPEALS
                                   4/24/2015 2:58:04 PM
OF THE THIRD SUPREME JUDICIAL DISTRICT
                                     JEFFREY D. KYLE
                                                   Clerk


  2004 Dodge Ram 1500 TX LP#CPL1988 and
        2000 Buick TX LP#CV1N8187
                     v.
             The State of Texas



             APPELLEE’S BRIEF



   Appeal from the 20th Judicial District Court
             Milam County, Texas
       Trial Court Cause No. CV36,279


   Milam County District Attorney’s Office
                204 N. Central
            Cameron, Texas 76520
               (254) 697-7013
         (254) 697-7016 – Facsimile
         jjohnson@milamcounty.net
           State Bar No. 24092587


     ORAL ARGUMENT REQUESTED
NAMES OF THE PARTIES TO THE FINAL JUDGMENT


                 State of Texas
          The Honorable W. W. Torrey
         Milam County District Attorney
                204 N. Central
             Cameron, Texas 76520


              Appellant’s Counsel

              Benton Ross Watson
                120 E. 1st Street
                P.O. Box 1000
             Cameron, Texas 76520

               Trial Court Judge

         The Honorable John Youngblood
             20th District Court Judge
          102 S. Fannin Ave., 2nd Floor
              Cameron, Texas 76520




                                             ii
                     TABLE OF CONTENTS


NAMES OF THE PARTIES TO THE FINAL JUDGMENT……………………..ii
TABLE OF CONTENTS……………………………………………………..…...iii
INDEX OF AUTHORITIES…………………………………………………….…v
REQUEST FOR ORAL ARGUMENT……………………………………..….....vii
STATEMENT OF THE CASE…………………………………………………...vii
ISSUES PRESENTED…………………………………………………………...viii
STATEMENT OF FACTS…………………………………………………………1
SUMMARY OF THE ARGUMENT………………………………………………6
ARGUMENT……………………………………………………………………….8
ISSUE ONE: FORFEITURE OF THE VEHICLES IS NOT BARRED BY THE
STATUTE OF LIMITATIONS DESPITE THE STATE’S FAILURE TO SERVE
APPELLANT WITHIN THIRTY DAYS OF SEIZURE BECAUSE
APPELLANT’S FILING OF AN ANSWER DISPENSED WITH THE
NECESSITY OF SERVICE AND ALTERNATIVELY THE STATE
EXERCISED DUE DILIGENCE IN SEEKING TO SERVE ALL KNOWN
STATUTORY CLAIMANTS AND OFFERED REASONABLE EXCUSE……..8
   1. APPELLANT’S ANSWER AND OTHER DEFENSIVE MEASURES
      DISPENSED WITH THE NECESSITY OF SERVICE OF PROCESS AND
      CONSTITUTES WAIVER OF APPELLANT’S STATUTE OF
      LIMITATIONS DEFENSE………………………………………………….8
   2. THE STATE USED DUE DILIGENCE IN ATTEMPTING SERVICE OF
      PROCESS ON ALL STATUTORY CLAIMANTS THAT THE STATE
      KNEW OF OR HAD REASON TO KNOW OF AND OFFERED A
      REASONABLE EXCUSE FOR LACK OF TIMELY SERVICE ON
      APPELLANT………………………………………………………..……..11
ISSUE TWO: THE TRIAL COURT’S GRANT OF SUMMARY JUDGMENT
WAS APPROPRIATE BECAUSE THE STATE ESTABLISHED PROBABLE
CAUSE AND ESTABLISHED THAT THE VEHICLES WERE USED IN THE
COMMISSION OF A FELONY, AND FINALLY APPELLANT’S DEFENSES
LACK MERIT…………………………………………………………………….15
   1. THE STATE ESTABLISHED PROBABLE CAUSE TO SEIZE THE
      VEHICLES AND USE OF THE VEHICLES IN THE COMMISSION OF A
      FELONY BASED ON THE CONFIDENTIAL INFORMANT’S
      INFORMATION FOUND IN DEPUTY WHITE’S AFFIDAVIT………...15
   2. APPELLANT’S STATUTE OF LIMITATIONS, INNOCENT OWNER,
      AND EIGTHTH AMENDMENT PROPORTIONALITY DEFENSES
      LACK MERIT……………………………………………………………...18

                                                            iii
       a. STATUTE OF LIMITATIONS DEFENSE………………………...18
       b. INNOCENT OWNER DEFENSE…………………………………..18
       c. EIGHTH AMENDMENT PROPORTIONALITY DEFENSE……..19
PRAYER FOR RELIEF.………………………………………………………….22
CERTIFICATE OF SERVICE……………………………………………………23
CERTIFICATE OF COMPLIANCE……………………………………………...24




                                                       iv
                                     INDEX OF AUTHORITIES

United States Supreme Court Cases
United States v. Bajakajian,
      524 U.S. 321 (1998)………………………………………………………..20

Texas Supreme Court Cases
Gant v. Deleon,
      786 S.W.2d 259 (Tex. 1990)………………………………………………...1

Texas Court of Criminal Appeals
State v. Duarte,
       389 S.W.3d 349 (Tex. Crim. App. 2012)…………………………………..16

Texas Appellate Court Cases
$18,800 in United States Currency v. State,
      961 S.W.2d 257 (Tex. App. Houston 1st Dist. 1997, no writ)…..................19
$24,156.00 in United States Currency v. State,
      247 S.W.3d 739 (Tex. App. Texarkana 2008, rehearing
      overruled)…............................................................................................10, 11
$27,920.00 in United States Currency v. State,
      37 S.W.3d 533 (Tex. App. Texarkana 2001, writ denied)………………9, 10
1996 Dodge X-Cab Truck v. State,
      122 S.W.3d 422 (Tex. App. Beaumont 2003, no pet.)……………………..20
Amrani-Khaldi v. State,
      575 S.W.2d 667 (Tex. Civ. App. Corpus Christi 1978, no
      writ)……………………………………………………………...4, 13, 18, 19
Gaston v. State,
      641 S.W.2d 261 (Tex. App. Houston 14th Dist. 1982, writ denied)…………
      ……………………………………………………………………………..19
Hopkins v. State,
      2003 Tex. App. LEXIS 1448 (Tex. App. Fort Worth Feb. 13, 2003)………...
      ……………………………………………………………………………...19
Tyler Car & Truck Ctr. v. Empire Fire & Marine Ins. Co.,
      2 S.W.3d 482 (Tex. App. Tyler 1999)………………………………..…....12

Texas Code of Criminal Procedure
TEX. CODE CRIM. PROC. art. 59.04(a)………………………………………………1
TEX. CODE CRIM. PROC. art. 59.04(b)………………………………………………1
TEX. CODE CRIM. PROC. art. 59.04(j)……………………………………………...13
                                                                                                                  v
Texas Rules of Civil Procedure
TEX R. CIV. P. 22………………………………………………………………..…8
TEX R. CIV. P. 120……………………………………………………………….…9
TEX R. CIV. P. 121………………………………………………………………….9

Texas Family Code
TEX. FAM. CODE. ANN. § 3.202………………………………………………..…19




                                                  vi
                      REQUEST FOR ORAL ARGUMENT


      Appellee requests that oral argument be granted. Appellee believes oral

argument would benefit the Court’s understanding of the details of the case.


                          STATEMENT OF THE CASE


      This case involves Appellant’s challenge to the trial court’s grant of

summary judgment in favor of the State in an asset forfeiture case pursuant to

Texas Code of Criminal Procedure Article 59.




                                                                                 vii
                           ISSUES PRESENTED


I.    Whether Appellant may assert the statute of limitations defense as such

      to bar forfeiture in this case? Or, if Appellant may indeed assert such

      defense, whether the State acted with due diligence in seeking to serve all

      statutory claimants and provided reasonable excuse for lack of timely

      service on Appellant?

II.   Whether the trial court erred in granting of State’s Motion for Summary

      Judgment to the State?




                                                                                viii
                           STATEMENT OF THE FACTS

        Sedderick Alcorn (hereinafter “Mr. Alcorn”) was arrested based on motions

to revoke probation in two counts of Delivery of Controlled Substance Less Than

One Gram, Enhanced, a third degree felony. Mr. Alcorn pled true to the motions to

revoke and was sentenced to ten years in prison.


        Prior to that on March 6, 2014, Chief Deputy Chris White of the Milam

County Sheriff’s Office seized the contraband (hereinafter “the vehicles”) in this

case, both the 2004 Dodge Ram 1500 (hereinafter “Dodge”) and the 2000 Buick 4-

door sedan (hereinafter “Buick”).1 Both vehicles were seized from Mr. Alcorn’s

residence in Rockdale, Texas. LaToya Williams, later identified in Appellant’s

Response to State’s Motion for Summary Judgement as LaToya Alcorn

(hereinafter “Mrs. Alcorn”), was at the house at the time of seizure. She signed

inventory forms and retrieved some items from the vehicles.2


        A certificate of title search was performed on the vehicles to determine the

registered owners according to the Texas Department of Motor Vehicles.3 The

Dodge came back registered to a James Rackley (hereinafter “Mr. Rackley”). The

Buick came back registered to a Gil Shamsher (hereinafter “Mr. Shamsher”).4 On


1
  I C.R. 10.
2
  Id. at 225-6.
3
  Id. at 10-1.
4
  Id.
                                                                                       1
March 18, 2014, the State filed the Original Notice of Seizure and Intended

Forfeiture.5 On March 28, 2014, the State served citation on registered owners, Mr.

Shamsher and Mr. Rackley, and Mr. Alcorn, as either a possible owner or one

merely in possession of the vehicles.6


        Initially, the only statutory claimant who responded to the service was Mr.

Alcorn. On April 7, his response came in the form of a handwritten answer stating,

among other things, “I detest all allegations.”7 Mr. Alcorn was sent interrogatories

on April 25, 2014, which he failed to answer.8 On May 28, 2014, Mrs. Alcorn filed

an answer in this case. It came in the form of a general denial and it did not provide

the court or the State any basis as to why Mrs. Alcorn should be a party in the suit.9

Despite Mrs. Alcorn’s failure to provide the State with any basis for a claim on the

vehicles, either as a potential owner, a possessor, or other interest holder, the State

sent Mrs. Alcorn interrogatories.10 In her answer to the interrogatories, Mrs. Alcorn

finally notified the State that she was claiming an ownership interest in the

vehicles. Mrs. Alcorn explained that she was claiming both a “monetary and

community property interest” in the vehicles.11


5
  Id. at 5.
6
  Id. at 5-12.
7
  Id. at 25.
8
  Id. at 54.
9
  Id. at 26.
10
   Id. at 68.
11
   Id. at 74, 79.
                                                                                          2
        The State subsequently filed a First Amended Notice of Seizure and

Intended Forfeiture.12 In that amended notice, the State added Mrs. Alcorn as a

statutory claimant.13 The State’s First Amended Notice of Seizure and Intended

Forfeiture was served on Mrs. Alcorn’s counsel.14


        Eventually, though not formally answering in the suit, Mr. Rackley did

contact the State regarding his interest. In his writing, Mr. Rackley disclaimed any

interest in the Dodge. Subsequently, a stipulated agreement was made between the

State and Mr. Rackley, which waived any interest that Mr. Rackley may have had

in the Dodge.15 Likewise, a default judgment was rendered against Mr. Shamsher’s

interest in the Buick.16 At that time, no party produced a bill of sale or other

document indicating a transfer of title.


        At that point, the only potential claimants remaining in the case were Mr.

and Mrs. Alcorn. The State filed State’s Motion for Summary Judgment against

both Mr. and Mrs. Alcorn.17 Because Mr. Alcorn failed to respond to any

discovery, The State moved to deem admissions against Mr. Alcorn.18 Mr.




12
   Id. at 331.
13
   Id. at 332.
14
   Id. at 336.
15
   Id. at 28.
16
   Id. at 107.
17
   Id. at 35.
18
   Id. at 37, 54.
                                                                                       3
Alcorn’s deemed admissions proved that the vehicles were contraband and

forfeited any ownership or possessory rights Mr. Alcorn had to either vehicle.19


       In the State’s Motion for Summary Judgment against Mrs. Alcorn, the State

relied on the rule from Amrani-Khaldi v. State.20 The State argued that Mrs. Alcorn

was an improper party. Specifically, it was the State’s contention that Mrs. Alcorn

lacked standing based on the rule from Amrani-Khaldi. The State further argued

that Mrs. Alcorn produced no evidence proving either element of the innocent

owner affirmative defense, the only affirmative defense provided by statute in a

forfeiture suit.21


       Mrs. Alcorn filed a First Amended Answer along with a response to the

State’s Motion for Summary Judgment.22 For the first time, Mrs. Alcorn asserted

the innocent owner, statute of limitations, and Eighth Amendment proportionality

defenses.23 Ultimately, the trial court recognized that Mrs. Alcorn had standing as a

statutory claimant.24 Despite that, the trial court granted the State’s Motion for

Summary Judgment on all counts and found that Mrs. Alcorn was not pleading




19
   Id. at 54.
20
   Id. at 35, 38-43; Amrani-Khaldi v. State, 575 S.W.2d 667, 669 (Tex. Civ. App. Corpus Christi
1978).
21
   Id. at 38-43.
22
   Id. at 127, 130.
23
   Id. at 130-329.
24
   Id. at 347-8.
                                                                                                  4
affirmative defenses in good faith.25 Mrs. Alcorn moved for a new trial, but the

trial court denied her motion.26 Mrs. Alcorn then appealed to this court.27




25
   Id. at 351-3.
26
   I C.R. Supp 138.
27
   I C.R. 369.
                                                                                   5
                        SUMMARY OF THE ARGUMENT


      The Court should affirm, or alternatively remand for further proceedings, the

judgment of the trial court for two primary reasons.


      First, despite the lack of timely service on Appellant, Appellant’s answer is a

general appearance that dispensed with the necessity of service of process and

waived Appellant’s statute of limitations defense.


      Even if Appellant’s answer did not waive Appellant’s statute of limitations

defense, the State acted with due diligence where it sought timely service on all

known potential claimants. The State’s lack of knowledge is a reasonable excuse in

light of the steps it took to ascertain all potential claimants. Once the State became

aware that Appellant was claiming an interest in the vehicles, the State quickly

confirmed Appellant’s status as a potential claimant.


      Second, the trial court’s grant of summary judgment was appropriate

because the State’s confidential informant supplied credible and reliable

information to the affiant which established probable cause to support the seizure.

The same information proved that the vehicles were used in the commission of a

felony.


      Additionally, Appellant’s affirmative defenses against summary judgment

lack merit. Appellant either waived the statute of limitations defense or the State
                                                                                         6
has a reasonable excuse for lack of timely service. Appellant cannot assert the

innocent owner defense because community property is not exempt from forfeiture

even though such property is used by one spouse without the knowledge and

consent of the other spouse. Appellant’s Eighth Amendment proportionality

defense fails to consider the higher level of culpability in this case as such to

warrant forfeiture of the vehicles.




                                                                                    7
                                      ARGUMENT


ISSUE ONE: FORFEITURE OF THE VEHICLES IS NOT BARRED BY THE
STATUTE OF LIMITATIONS DESPITE THE STATE’S FAILURE TO SERVE
APPELLANT WITHIN THIRTY DAYS OF SEIZURE BECAUSE
APPELLANT’S FILING OF AN ANSWER DISPENSED WITH THE
NECESSITY OF SERVICE AND ALTERNATIVELY THE STATE
EXERCISED DUE DILIGENCE IN SEEKING TO SERVE ALL KNOWN
STATUTORY CLAIMANTS AND OFFERED REASONABLE EXCUSE.
       1. APPELLANT’S ANSWER AND OTHER DEFENSIVE MEASURES
          DISPENSED WITH THE NECCESSITY OF SERVICE OF PROCESS
          AND CONSTITUTES WAIVER OF APPELLANT’S STATUTE OF
          LIMITATIONS DEFENSE.
       Service of process in civil asset forfeiture is governed by the Texas Rules of

Civil Procedure.28 The general rules regarding service of process in asset forfeiture

requires that the State shall “commence proceedings . . . not later than the 30th day

after the date of seizure.”29 A civil action commences with the filing of suit, but

such suit must be filed within the applicable statute of limitations.30 Generally,

even when the petition is timely filed, suit will be barred by the statute of

limitations unless the plaintiff exercises due diligence in serving the defendant with

process within the statute of limitations period.31


       In some cases, however, service of process may be waived. A defendant

may, in person or by his agent, enter an appearance in open court which “shall


28
   TEX. CODE CRIM. PROC. art. 59.04(b).
29
   TEX. CODE CRIM. PROC. art. 59.04(a).
30
   TEX R. CIV. P. 22.
31
   Gant v. Deleon, 786 S.W.2d 259, 260 (Tex. 1990).
                                                                                        8
have the same force and effect as if citation had been duly issued and served as

provided by law.”32 Rule 121 expands on this provision by stating that “an answer

shall constitute an appearance of the defendant so as to dispense with the necessity

for the issuance or service of citation upon him.”33


       In $27,920.00 in United State Currency v. State, the State did not attempt to

serve process on the owner of a vehicle from which contraband was seized.34 The

owner, making a claim on the contraband, answered in the suit and filed a Motion

to Return Funds. The owner argued on appeal that the State’s failure to serve him

barred seizure. However, the court found that the owner’s answer and “filing of the

motion in court constituted an appearance and waived the necessity of service of

process.”35 The court explained further that the filing of such a “defensive

measure”, coupled with no effort to make a special appearance, waived the

owner’s limitations defense.


       Here, the facts are analogous to those upheld on in $27,920.00. Appellant

made an appearance when she intervened in the suit by filing an answer to defend

against the State.36 Additionally, Appellant took further defensive measures when



32
   TEX R. CIV. P. 120.
33
   TEX R. CIV. P. 121.
34
   $27,920.00 in United States Currency v. State, 37 S.W.3d 533 (Tex. App. Texarkana 2001).
35
   Id. at 536.
36
   I C.R. 26.
                                                                                              9
she filed a motion to contest State’s Motion for Summary Judgment.37 There is no

evidence in the record that Appellant made – or even sought to make – a special

appearance or otherwise challenge the court’s jurisdiction. Under these facts and

the rules in $27,920.00, Appellant made an appearance by filing an answer in the

court and taking defensive measures which dispensed with the necessity of service

of process.


       Appellant cites $24,156.00 in United States Currency v. State as authority

for the proposition that service of process is not waived by generally appearing in

suit.38 Appellant fails to cite the whole rule. The rule states that a party’s general

appearance does not waive service of process, but only where service of process

occurs outside of the statute of limitations period and the State has not used due

diligence in serving the defendant.39 $24,156.00 is factually distinguishable from

the instant case. In that case, the defendant did not file an answer or otherwise

make a general appearance in the case. In fact, defendant’s counsel made only a

request for admissions on the State “several months” after the Notice of Seizure

and Intended Forfeiture was received.40 Even when Defendant finally challenged




37
   I C.R. 130.
38
   $24,156.00 in United States Currency v. State, 247 S.W.3d 739, 740 (Tex. App. Texarkana
2008).
39
   Id. at 747.
40
   Id. at 741.
                                                                                             10
the statute of limitations, he did so via a bill of review.41 Here, Appellant filed an

answer, took other defensive measures, and did not ever proceed on a bill of

review. Thus, the rules as applied in $24,156.00 do not fit with the facts in the

instant case. Conversely, the facts in $27,920.00 are strikingly similar to those in

the instant case, and offer clearer precedent.


          2. THE STATE USED DUE DILIGENCE IN ATTEMPTING SERVICE
             OF PROCESS ON ALL PARTIES THAT THE STATE KNEW OF OR
             HAD REASON TO KNOW OF AND OFFERED A REASONABLE
             EXCUSE FOR LACK OF TIMELY SERVICE ON APPELLANT.
          Even if the Court decides that the rule announced in $27,920.00 does not

control and instead $24,156.00 does, then the State has still met its obligations. As

mentioned supra, the rule in $24,156.00 is “[a] party's general appearance in a suit

does not waive service of process when the appearance occurs after the limitations

period has run and the plaintiff has not used due diligence in serving the party.” 42

$24,156.00 also explains the standard for whether due diligence has been

exercised:


          Generally, the question of reasonable diligence is a fact question; however,

          if no excuse for the lack of timely service is offered, or the time passed

          between filing of the suit and the State's actions negate the possibility that

          reasonable diligence existed, lack of diligence will be found as a matter of

41
     Id. at 742.
42
     Id. at 747.
                                                                                           11
       law. One 1991 Chevrolet Blazer, 905 S.W.2d at 445; Three Thousand Six

       Hundred Thirty-Nine Dollars ($ 3,639.00) in U.S. Currency v. State, 133

       S.W.3d 698, 700-01 (Tex. App.--Corpus Christi 2003, no pet.). The two

       controlling factors that establish due diligence are (1) whether the plaintiff

       acted as an ordinary [sic] prudent person would act under the same

       circumstances, and (2) whether the plaintiff acted diligently up until the time

       the defendant was served. $ 6,453.00, 63 S.W.3d at 536.43


       At the time of seizure, the State knew Mr. Alcorn was a potential claimant

and he was duly served. 44 The State’s next effort to determine other potential

claimants on the vehicles was to run the certificate of title with the Texas

Department of Motor Vehicles.45 The State found that Mr. Rackley and Mr.

Shamsher were listed as owners of one of the vehicles each.46 The owner listed on

a certificate of title creates a presumption of ownership, but it is not conclusive.47

Despite that, the State served both Mr. Rackley and Mr. Shamsher anyway.48 In

conclusion, the record shows that the State promptly served process via citation on




43
   Id. at 744-5.
44
   I C.R. 10, 21.
45
   Id. at 10-1.
46
   Id.
47
   Tyler Car & Truck Ctr. v. Empire Fire & Marine Ins. Co., 2 S.W.3d 482, 485 (Tex. App.
Tyler 1999).
48
   I C.R. 19-22.
                                                                                           12
all known parties by March 28, 2014, which was twenty-three days after seizure.49

Service of these parties was well within the statute of limitations.


       The State did not serve Appellant because the State did not know that

Appellant was a potential claimant. The record does not show that Appellant was

listed as an owner on any certificate of title. Furthermore, there was no other

evidence in the record at that time to suggest that Appellant was an owner. Indeed,

it was not until July 10, 2014, when Appellant responded to the State’s request for

admission that Appellant asserted a “monetary and community property interest.”50

Later that month, in affidavits made by Appellant and her counsel, Appellant

finally asserted her status as co-owner of the vehicles.51 Once the State was made

aware of Appellant’s interest in the vehicles, the State amended its Notice of

Seizure and Intended Forfeiture on August 5, 2014 to include Appellant.52


       The record also does not show that Appellant was a possessor at the time of

seizure and thus entitled to service of process.53 The Appellant’s affidavit shows

only that Appellant was present on the premises at the time the vehicles were




49
   Id. at 19-24.
50
   I C.R. 247; Please note that although Appellant claims a community property interest in the
vehicles here, the fact that property to be forfeited is community property is no bar to forfeiture.
Amrani-Khaldi, supra note 20.
51
   Id. at 226, 234.
52
   Id. at 331.
53
   TEX. CODE CRIM. PROC. art. 59.04(j).
                                                                                                   13
seized.54 Appellant was allowed to remove items from the vehicles, but the mere

fact that Appellant had personal property in the vehicle 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 the seizure – rather, it shows, along with

Appellant’s contentions that she occasionally drove the cars, that at best Appellant

may have been in possession of the vehicles at some point in the past.55


        Considering the argument supra, the record shows that the State was not

aware that Appellant was a potential claimant. Therefore, she was not served. The

record also shows that, as required by $24,156.00, the State acted as a prudent

person in the same situation would have; the State consulted official records to

ascertain potential owners,56 the State promptly served all known parties,57 and

there was no other delay by the State.58 Moreover, the lack of knowledge of

Appellant’s status as potential claimant is a reasonable excuse for lack of timely

service as contemplated by $24,156.00.


        In conclusion, the Court should affirm the ruling of the trial court and find

that that forfeiture is not barred by the statute of limitations. The Appellant’s

answer, which is a general appearance, dispensed with the necessity of service of

54
   I C.R. 225.
55
   Id.
56
   I C.R. 10-1.
57
   Id. at 19-24.
58
   Id. at 10-24.
                                                                                        14
process as set forth in $27,920.00. However, should the Court find that $24,156.00

controls, then alternatively the State acted with due diligence because the State has

set forth a reasonable excuse to explain the lack of timely service on Appellant.

ISSUE TWO: THE TRIAL COURT’S GRANT OF SUMMARY JUDGMENT
WAS APPROPRIATE BECAUSE THE STATE ESTABLISHED PROBABLE
CAUSE AND ESTABLISHED THAT THE VEHICLES WERE USED IN THE
COMMISSION OF A FELONY, AND FINALLY APPELLANT’S DEFENSES
LACK MERIT.
   1. THE STATE ESTABLISHED PROBABLE CAUSE TO SEIZE THE
      VEHICLES AND USE OF THE VEHICLES IN THE COMMISSION OF A
      FELONY BASED ON THE CONFIDENTIAL INFORMANT’S
      INFORMATION FOUND IN DEPUTY WHITE’S AFFIDAVIT.
   Appellant contends that Deputy White’s affidavit is insufficient to establish

probable cause and use of the vehicles in the commission of a felony for a number

of reasons. Appellant points to (1) the affiant’s lack of personal knowledge with

regard to what is depicted on the videos, (2) the inapplicability of Mr. Alcorn’s

deemed admission to Appellant, and, finally, (3) the lack of credibility and

reliability of the affiant’s confidential informant. Even assuming the Court finds

merit in Appellant’s first two contentions, the credibility and reliability of the

confidential informant has been shown.


   In State v. Duarte, the court explains the rules regarding information gained

from confidential informants:




                                                                                     15
       Confidential informants—even though culled from the "criminal milieu"—

       may be considered reliable tipsters if they have a successful "track

       record." As Professor LaFave points out, "Lower courts have with virtual

       unanimity held that a declaration that the informant's past information has

       led to convictions is a sufficient showing of the informer's credibility." But

       tips from anonymous or first-time confidential informants of unknown

       reliability must be coupled with facts from which an inference may be drawn

       that the informant is credible or that his information is reliable.59


       Here, there is no evidence to show that affiant’s confidential informant has a

track record that has led to past convictions. As such, it is necessary to couple the

confidential informant’s tips with facts that show he or she was credible or

reliable.60 The affidavit shows on its face a number of details that lead to

inferences establishing the confidential informant’s credibility or reliability. First,

the affidavit shows that the confidential information knew exactly what sort of

drug Mr. Alcorn was selling at the present time when he arranged the sale.61 The

fact that the confidential informant knew that Mr. Alcorn was specifically selling

crack cocaine, out of the wide spectrum of illicit substances that are known to be

available in the State of Texas, shows credibility or reliability. Second, the

59
   State v. Duarte, 389 S.W.3d 349, 357 (Tex. Crim. App. 2012).
60
   Id.
61
   I C.R. 10
                                                                                        16
affidavit shows that the confidential informant was able to set up multiple drug

sales with Mr. Alcorn in order to prove Mr. Alcorn was engaged in the ongoing

sale of drugs.62 This shows a great deal more credibility and reliability than a one-

time sale would tend to. Finally, the fact that the affidavit shows that the

confidential informant helped arrange sales that confirm Mr. Alcorn’s modus

operandi, which is to meet at a given location and conduct the sale via automobile,

tends to show credibility and reliability.63


           All these facts taken together show that the hearsay information garnered

from the confidential informant was indeed credible and reliable. Thus, even

assuming the Court finds merit in Appellant’s contentions that (1) the affiant

lacked personal knowledge with regard to what occurred in the videos and that (2)

Mr. Alcorn’s deemed admissions are inapplicable against Appellant, the credible

and reliable nature of the hearsay information independently establishes probable

cause to support the seizure. Additionally, the same information shows that the

vehicles at issue were used in the commission of a felony.


           It is important to note a minor point here. As mentioned supra, Appellant

contends that the affidavit cannot show that the vehicles are proceeds or acquired

with proceeds of illegal activity. Even assuming that is true, that contention does


62
     Id.
63
     Id.
                                                                                       17
not address the fact that the vehicles were used in the commission of a felony. The

information from the confidential informant shows that the vehicles were used in

two separate drug sales.64 Appellant further contends that the State can only show

use of the vehicles in these two instances. Even if that is true, Appellant admits that

the vehicles were indeed used in the commission of a felony.


      2. APPELLANT’S STATUTE OF LIMITATIONS, INNOCENT OWNER,
         AND EIGTHTH AMENDMENT PROPORTIONALITY DEFENSES
         LACK MERIT.

         A. STATUTE OF LIMITATIONS DEFENSE
         For a full discussion of this issue, please see Issue One, Subsection One,

supra.


         B. INNOCENT OWNER DEFENSE


         Appellant asserts the innocent owner defenses and, furthermore, contends

that Amrani-Khaldi is bad law and should therefore be overruled. Amrani-Khaldi

holds that community property is not exempt from forfeiture where such property

is used by a spouse in such a manner as to contravene TEX. REV. CIV. STAT. ANN.

art. 4476-15 § 5.03 (1976), even though such property is so used by one spouse

without the knowledge and consent of the other spouse.65 This rule is well-settled




64
     Id.
65
     Amrani-Khaldi, 575 S.W.2d at 668-9.
                                                                                      18
and has been followed by numerous other cases since it was decided.66 Appellant

argues that Amrani-Khaldi should be overturned because (1) forfeiture suits are in

rem and, thus, there is no personal liability to pass onto the spouse, (2) the Texas

Family Code allows one spouse to create liability but does not require it, and (3)

that Amrani-Khaldi essentially allows a corruption of blood style liability.


       Despite Appellant’s contentions, the reasoning in Amrani-Khaldi is well-

founded. Were Appellant’s rules to be applied in future cases, virtually any

forfeiture of property from a married person would be barred by testimony from

the other spouse that he or she did not know that the property in question was

either proceeds of or being used in the commission of illicit activity. This would

effectively allow any married person to shield property gained by or used in illicit

activity from asset forfeiture simply by virtue of his or her status as a married

person. Such a rule would completely undermine the well-settled rule that spouses

may incur liability on community property through unilateral action.67


       C. EIGHTH AMENDMENT PROPORTIONALITY DEFENSE


       Appellant contends that the Excessive Fines Clause of the Eighth

Amendment, as applied in United States v. Bajakajian, bars forfeiture in this

66
   See Gaston v. State, 641 S.W.2d 261, 262 (Tex. App. Houston 14th Dist. 1982, writ denied);
$18,800 in United States Currency v. State, 961 S.W.2d 257, 259 (Tex. App. Houston 1st Dist.
1997); Hopkins v. State, 2003 Tex. App. LEXIS 1448, 3 (Tex. App. Fort Worth Feb. 13, 2003).
67
   TEX. FAM. CODE. ANN. § 3.202.
                                                                                            19
case.68 Bajakajian holds that in order to satisfy the Excessive Fines Clause, (1) the

property must have been an instrumentality of the crime committed and (2) the

value of the property must be proportional to the culpability of the crime

committed.69 Appellant cites 1996 Dodge X-Cab Truck v. State to illustrate this

principle.70 In Dodge X-Cab, the police arrested the owner of a vehicle for an

outstanding warrant. While inventorying the vehicle, the police discovered straws

containing trace amounts of drugs.71 The owner was convicted of misdemeanor

possession instead of the original state jail felony charge.72 The vehicle was

forfeited by the State.73


       On appeal, the court ruled that the forfeiture was violative of the Excessive

Fines Clause insofar as the mitigation from felony punishment to misdemeanor

punishment showed the court that there was a diminished level of culpability in

this case.74 The court further remarked that the amount of drugs in the owner’s

possession was so small that it could barely be measured – prompting the court to




68
   United States v. Bajakajian, 524 U.S. 321 (1998).
69
   Id. at 327.
70
   1996 Dodge X-Cab Truck v. State, 122 S.W.3d 422, 423 (Tex. App. Beaumont 2003, no pet.).
71
   Id. at 423.
72
   Id. at 427.
73
   Id. at 422.
74
   Id. at 427.
                                                                                         20
find an even lower level of culpability.75 The court then goes on to observe that had

the owner been charged with the felony, the forfeiture would have been warranted.


           Comparing Dodge X-Cab to the instant case, the facts are distinguishable.

Here, Mr. Alcorn pled to Delivery of Controlled Substance Less Than One Gram,

Enhanced. This charge accounts for the sale of drugs as opposed to the possession

of a trace amount of drugs. The disparity in the level of culpability between these

two offenses is self evident – one can see that the forfeiture arose from a set of

facts indicting a far higher level of culpability. Therefore, the forfeiture cannot be

thought to implicate the Excessive Fines Clause and Appellant’s Eighth

Amendment proportionality defense ultimately lacks merit.


           In conclusion, all of the Appellant’s defenses, for the reasons detailed supra,

lack merit. First, Appellant’s answer in this case waived the statute of limitations

defense or the State’s due diligence and reasonable excuse provide for the lack of

timely service. Second, Appellant cannot assert an innocent owner defense because

the rule in Amrani-Khaldi controls. Third, Appellant’s Eighth Amendment

proportionality defense is lacking because the felony conviction in this case shows

a heightened level of culpability as such to justify the forfeiture.




75
     Id.
                                                                                        21
                              PRAYER FOR RELIEF


Appellee prays that this Court find that Appellant may not assert the statute of

limitations defense and affirm the trial court’s grant of summary judgment to the

State. Alternatively, Appellee prays that the Court remand the case to trial court.




                                              Respectfully submitted,
                                              Joseph P. Johnson
                                              Assistant County & District Attorney
                                              204 N. Central
                                              Cameron, Texas 76520
                                              Telephone: 254/697-7013
                                              Fax: 254/697-7016
                                              Email: daoffice@milamcounty.net

                                              /s/Joseph P. Johnson_______
                                              JOSEPH P. JOHNSON
                                              Texas State Bar Number 24092587
                                              ATTORNEY FOR THE STATE




                                                                                      22
                          CERTIFICATE OF SERVICE


      This is to certify that on April 24, 2015, a true and correct copy of the above

and foregoing document was served on Benton Ross Watson, counsel for the

Appellant, by electronic transmission at ross@texastopdefense.com. Electronic

transmission was reported as complete.


                                            ____________ /s/Joseph P. Johnson___
                                                               Joseph P. Johnson




                                                                                   23
         CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
Certificate of Compliance with Type-Volume Limitation, Typeface Requirements,
                          and Type Style Requirements

   1. This brief complies with the type-volume limitations of TEX. R. APP. P.
      9.4(i) because this brief contains 4,749 words, excluding the parts of the
      brief exempt by TEX. R. APP. P. 9.4(i)(1).

   2. This brief complies with the typeface requirements and the type style
      requirements of Tex. R. App. P. 9.4(e) because this brief has been produced
      on a computer in conventional typeface using Microsoft Word in Times New
      Roman 14 point font in the body of the brief and Times New Roman 12
      point font in the footnotes.

   3. The electronic file is virus and malware free.


___ /s/Joseph P. Johnson___________
Signature of Filing Party

___Joseph P. Johnson______________
Printed Name

Milam County District Attorney’s Office
Firm

______April 24, 2015_______________
Date




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