                                                                            ACCEPTED
                                                                        03-14-00704-CV
                                                                                5258405
                                                             THIRD COURT OF APPEALS
                                                                        AUSTIN, TEXAS
                                                                   5/12/2015 9:29:22 PM
                                                                      JEFFREY D. KYLE
                                                                                 CLERK
             NO. 03-14-00704-CV

                                                  FILED IN
                IN THE            3rd COURT OF APPEALS
                                      AUSTIN, TEXAS
          COURT OF APPEALS        5/12/2015 9:29:22 PM
OF THE THIRD SUPREME JUDICIAL CIRCUIT
                                    JEFFREY D. KYLE
                                                   Clerk


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



     APPELLANT’S REPLY BRIEF




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



    LAW OFFICE OF BENTON ROSS WATSON
               120 E. 1st Street
                P.O. Box 1000
           Cameron, Texas 76520
               (254) 307-8181
         (254) 231-0212—Facsimile
         ross@texastopdefense.com
           State Bar No. 24077591


     ORAL ARGUMENT REQUESTED
               NAMES OF THE PARTIES TO THE FINAL JUDGMENT



                                                            STATE OF TEXAS
                                                 The Honorable W.W. “Bill” 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




ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                                I	  
                                                          TABLE OF CONTENTS

               NAMES OF THE PARTIES TO THE FINAL JUDGMENT .... I
               TABLE OF CONTENTS ...........................................................II
               INDEX OF AUTHORITIES .................................................... IV
               REQUEST FOR ORAL ARGUMENT ................................... IX
               STATEMENT OF THE CASE ................................................ IX
               ISSUES PRESENTED .............................................................. X
               STATEMENT OF FACTS ........................................................ 1
               SUMMARY OF REPLY POINTS ............................................ 6
               I. REPLY POINTS ..................................................................... 7
               A. THE STATE CONTINUES TO IGNORE RULES
                   REGARDING SERVICE. .................................................... 7
               1. FILING AN ANSWER DOES NOT WAIVE SERVICE OF PROCESS FOR
                  PURPOSES OF THE STATUTE OF LIMITATIONS DEFENSE. ............ 8
               2. THE STATE WAS NOT DILIGENT BECAUSE IT WAS
                  UNQUESTIONABLY AWARE THAT MRS. ALCORN REQUIRED
                  SERVICE BY CITATION, ITS ACTIONS SPEAK LOUDER THAN
                  WORDS, AND, EVEN THEN, ITS WORDS ARE TOO LATE. ............ 10
               a. The State knew Mrs. Alcorn was entitled to service by
                  citation.................................................................................. 11
               b. The State failed to show diligence because it offered no
                  explanation. .......................................................................... 13
               B. THE STATE’S EVIDENCE IS NOT COMPETENT FOR
                   SUMMARY JUDGMENT. ................................................ 17
               1. THE STATE DID NOT CONCLUSIVELY PROVE PROBABLE CAUSE
                  BECAUSE ONLY UNIDENTIFIED DECLARANTS, LACKING
                  QUALIFICATIONS AND SUPPORT BY INDEPENDENT
                  CORROBORATION, KNEW THE DETERMINATIVE FACTS. ........... 18
               2. EXISTENCE OF PROBABLE CAUSE TO BELIEVE PROPERTY IS
                  CONTRABAND DOES NOT EQUALLY PROVE THAT THE PROPERTY
                  IS, IN FACT, CONTRABAND. .................................................... 20

               C. AMRANI-KHALDI IS NOT ‘WELL-SETTLED’, IS
                  CONTRARY TO LAW, AND OVERRULING IT
                  WOULD ONLY LEVEL THE PLAYING FIELD. ........... 22

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                                                             II	  	  
               1. TEXAS LAW DOES NOT SUPPORT AMRANI-KHALDI’S RULE
                  BECAUSE NO PERSON INCURRED LIABILITY, THERE IS NO
                  LIABILITY, AND MRS. ALCORN'S COMMUNITY PROPERTY
                  CANNOT BE FORFEITED MERELY DUE TO THE ACT OF A
                  SPOUSE….. ............................................................................ 24
               2. SPOUSES SHOULD BE ABLE TO USE AVAILABLE STATUTORY
                  PROTECTIONS BECAUSE DOING SO IS CONSISTENT WITH LAW,
                     PREVENTS INEQUITABLE RESULTS, AND ONLY LEVELS THE
                     PLAYING FIELD. ..................................................................... 27
               a. Spouses cannot be barred from using available statutory
                  remedies. .............................................................................. 27
               b. Spouses should be able to use innocent owner defenses in
                  order to prevent inequitable results; and using such
                  defenses would, at most, only give spouses the same
                  advantages as other claimants. ............................................ 28
               D. THE STATE STARTS AND ENDS WITH FACTS
                   ENTIRELY ABSENT FROM THE RECORD, AND
                   COMPLETELY IGNORES PROBLEMS WITH ITS
                   MOTION AND THE TRIAL COURT’S JUDGMENT..... 30
               1. NO EVIDENCE OF DRUG CONVICTION, PROBATION, OR AMOUNT
                  OF DRUGS EXISTS TO ANALYZE PROBABLE CAUSE, CONTRABAND,
                  OR EIGHTH AMENDMENT LAW. .............................................. 30
               2. MRS. ALCORN DID NOT PLEAD AFFIRMATIVE DEFENSES IN BAD
                  FAITH..................................................................................... 31
               3. THE STATE AVOIDS WHY WE ARE HERE. ................................ 31
               III. PRAYER ............................................................................ 32
               CERTIFICATE OF SERVICE ................................................ 32
               CERTIFICATE OF COMPLIANCE........................................33




ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                                                             III	  	  
                                                          INDEX OF AUTHORITIES


UNITED STATES SUPREME COURT CASES
          Austin v. United States,
            509 U.S. 602 (1993) .......................................................... passim
          Bennis v. Michigan,
            516 U.S. 442 (1996) ................................................................. 27
          United States v. Ward,
            448 U.S. 242 (1980) ................................................................. 25

TEXAS SUPREME COURT CASES
          Baker v. Monsanto Co.,
            111 S.W.3d 158 (Tex. 2003) ...................................................... 9
          Caldwell v. Barnes,
            154 S.W.3d 93 (Tex. 2004) ...................................................... 10
          Fairfield Ins. Co. v. Stephens Martin Paving, LP,
            246 S.W.3d 653 (Tex. 2008) .................................................... 23
          Kerlin v. Arias,
            274 S.W.3d 666 (Tex. 2008) .................................................... 17
          Kulubis v. Tex. Farm Bureau,
            706 S.W.2d 953 (Tex. 1986) .............................................. 22, 23
          Proulx v. Wells,
            235 S.W.3d 213 (Tex. 2007) .................................................... 14
          Ross v. Nat'l Ctr. for the Empl. of the Disabled,
            197 S.W.3d 795 (Tex. 2006) .................................................... 10
          State v. $90,235.00, 390,
            S.W.3d 289 (Tex. 2013) ..................................................... 17, 20
          Tedder v. Gardner Aldrich, LLP,
            421 S.W.3d 651 (Tex. 2013) .............................................. 24, 25
          Texas Farmers Ins. Co. v. Murphy,
            996 S.W.2d 873 (Tex. 1999) .................................................... 23

TEXAS COURT OF CRIMINAL APPEALS CASES
          Davis v. State,
            202 S.W.3d 149 (Tex. Crim. App. 2006) ................................. 20
          Flores v. State,

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                                                  IV	  
               319 S.W.3d 697 (Tex. Crim. App. 2010) ................................. 20

TEXAS APPELLATE COURT CASES
          $24,156.00 v. State,
            247 S.W.3d 739 (Tex. App.—Texarkana 2008, no pet.) ........... 9
          $27,920.00 v. State,
            37 S.W.3d 533 (Tex. App.—Texarkana 2001) .......................... 8
          $6453.00 v. State,
            63 S.W.3d 533 (Tex. App.—Waco 2001, no pet.) ..................... 9
          Amrani-Khaldi v. State,
            575 S.W.2d 667 (Tex. Civ. App.—Corpus Christi 1978, no
            writ) .................................................................................... III, 22
          Belleza-Gonzalez v. Villa,
            57 S.W.3d 8 (Tex. App.—Houston 2001, no pet.) .................. 15
          Bochas v. State,
            951 S.W.2d 64 (Tex. App.—Corpus Christi 1997, no writ) .... 22
          Davis v. State,
            989 S.W.2d 859 (Tex. App.—Austin [3rd Dist.] 1999, pet.
            ref'd). ........................................................................................ 20
          Elardo v. State,
            163 S.W.3d 760 (Tex. App.—Texarkana 2005, pet. ref'd) ...... 19
          Garcia v. John Hancock Variable Life Inse. Co.,
            859 S.W.2d 427, 435 (Tex. App.—San Antonio 1993, writ
            denied) ................................................................................ 17, 21
          Gaston v. State,
            641 S.W.2d 261 (Tex. App.—Houston 1982, no pet.) ............ 22
          Gray v. State,
            1999 Tex. App. LEXIS 8213 (Tex. App.—Austin [3rd Dist.]
            Nov. 4, 1999, no pet.) (mem. op., not designated for
            publication) .............................................................................. 22
          Griffin v. Hale,
            2010 Tex. App. LEXIS 6094 (Tex. App.—Eastland July 29,
            2010, no pet.) (mem. op.) ........................................................... 9
          Hopkins v. State,
            2003 Tex. App. LEXIS 1448 (Tex. App.—Fort Worth Feb. 13,
            2003, not pet.) (mem. op.) ........................................................ 29
          Hull v. Vidaurri,
            2010 Tex. App. LEXIS 424 (Tex. App.—Austin [3rd Dist.] Jan.
            22, 2010, pet. denied) (mem. op.) ............................................ 13

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                                                             V	  
          Knox v. Donovan Lowery Ins. Agency,
            405 S.W.2d 160 (Tex. Civ. App.—Eastland 1966, no writ) .... 14
          Laidley v. City of San Marcos,
            2011 Tex. App. LEXIS 7712 (Tex. App.—Austin [3rd Dist.]
            Sept. 21, 2011, no pet.) (mem. op.) .......................................... 14
          Lot 39 v. State,
            85 S.W.3d 429 (Tex. App.—Eastland 2002, pet. denied)........ 25
          Mauricio v. Castro,
            287 S.W.3d 476 (Tex. App. —Dallas 2009, no pet.) ............... 14
          Mitchell v. Timmerman,
            2008 Tex. App. LEXIS 9710 (Tex. App.—Austin [3rd Dist.]
            Dec. 31, 2008, no pet.) (mem. op.) .......................................... 13
          One 1991 Chevrolet Blazer v. State,
            905 S.W.2d 443 (Tex. App.—Amarillo 1995, no pet.)............ 13
          Parish v. State,
            939 S.W.2d 201 (Tex. App.—Austin [3rd Dist.] 1997, no
            pet.)….. .................................................................................... 20
          Parmer v. DeJulian,
            2008 Tex. App. LEXIS 6875 (Tex. App.—Tyler Sept. 17, 2008,
            no pet.) (mem. op.) ..................................................................... 9
          Perkins v. Groff,
            936 S.W.2d 661 (Tex. App.—Dallas 1996, writ denied)......... 13
          Plantation Prod. Props., L.L.C. v. Meeks,
            2004 Tex. App. LEXIS 8206 (Tex. App.—Waco Sept. 8, 2004,
            no pet.) (mem. op.) ................................................................... 13
          Rodriguez v. Tinsman & Houser, Inc.,
            13 S.W.3d 47 (Tex. App.—San Antonio 1999, pet. denied) ... 14
          Seagraves v. City of McKinney,
            45 S.W.3d 779 (Tex. App.—Dallas 2001, no pet.) .................... 9
          Simmons v. Elmow Holdings, Inc.,
            2008 Tex. App. LEXIS 5199 (Tex. App.—Fort Worth July 10,
            2008, pet. denied) (mem. op.) .............................................. 9, 16
          Slagle v. Prickett,
            345 S.W.3d 693 (Tex. App.—El Paso 2011, no pet.) .............. 14
          State v. 2004 Lincoln Navigator,
            2014 Tex. App. LEXIS 9557 (Tex. App.—Corpus Christi Aug.
            28, 2014, pet. filed) (mem. Op.)............................................... 20
          State v. Delagarza,
            158 S.W.3d 25, 28 (Tex. App.—Austin [3rd Dist.] 2005, no
            pet.)…. ..................................................................................... 20

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                                                          VI	  
          State v. One Red 1988 Chevrolet Silverado,
            2001 Tex. App. LEXIS 4018, at *5 (Tex. App.—Corpus Christi
            June 14, 2001) .......................................................................... 22
          Taylor v. Thompson,
            4 S.W.3d 63 (Tex. App.—Houston 1999, pet. denied) ............ 13
          Weaver v. E-Z Mart Stores, Inc.,
            942 S.W.2d 167 (Tex. App.—Texarkana 1997, no writ)......... 16
          Windle v. Mary Kay, Inc.,
            2003 Tex. App. LEXIS 5594 (Tex. App.—Dallas July 1, 2003,
            pet. denied) (mem. op.) ............................................................ 14

FIFTH CIRCUIT CASES	  
          States v. Aguirre,
            476 F. App'x 333 (5th Cir. 2012) ............................................. 25
          United States v. $92,203.00,
            537 F.3d 504 (5th Cir. 2008).................................................... 17
          United States v. Loftis,
            607 F.3d 173 (5th Cir. 2010).................................................... 25

OTHER CASES
          People v. One 1939 La Salle 8 Touring Sedan,
            45 Cal. App. 2d 709 (1941)...................................................... 22
          People v. One 1941 Buick Club Coupe,
            72 Cal. App. 2d 593 (1946)...................................................... 22
          State v. One 1968 Buick Electra, Del. Reg. 43003,
            301 A.2d 297 (Del. Super. 1973) ............................................. 22
          State v. One 1984 Toyota Truck,
            311 Md. 171, 533 A.2d 659 (1987).......................................... 28
          United States v. Ferro,
            681 F.3d 1105 (9th Cir. 2012)............................................ 30, 31
          von Hofe v. United States,
            492 F.3d 175 (2nd Cir. 2007) ................................................... 30


UNITED STATES CONSTITUTION
          U.S. CONST. amend. VIII ................................................. III, 30, 31
          U.S. CONST. amend. XIV....................................................... 27, 30


ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                                                      VII	  
TEXAS CONSTITUTION
          TEX. CONST. art. I, §§ 3, 13, 19 ................................................... 27
          TEX. CONST. art. I, §13 ................................................................ 30

TEXAS CODE OF CRIMINAL PROCEDURE
          TEX. CODE CRIM. PROC. ANN. arts. 59.01 ................................. VIII
          TEX. CODE CRIM. PROC. ANN. art. 59.02 ................................... 2, 3
          TEX. CODE CRIM. PROC. ANN. art. 59.04 ............................ VIII, 10
          TEX. CODE CRIM. PROC. ANN. art. 18.06(b)....................... 7, 11, 16


TEXAS FAMILY CODE
          TEX. FAM. CODE § 3.201(b) ................................................... 24, 26
          TEX. FAM. CODE §3.201(c) .......................................................... 25
          TEX. FAM. CODE §3.202(c) .............................................. 24, 25, 26

TEXAS RULES OF CIVIL PROCEDURE
          TEX. R. CIV. P. 166a .................................................................... 17
          TEX. R. CIV. P. 166a(f) ................................................................ 17

OTHER AUTHORITIES
          Don Clemer and Ann B. White, Texas District & County
            Attorney Association, Guide to Asset Seizure and Forfeiture
            (2010) ................................................................................. 10, 15
          Joseph W. McKnight, Family Law: Husband and Wife, 37 SW.
            L.J. 65 (1983) ........................................................................... 24




ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                                                         VIII	  	  
                                             REQUEST FOR ORAL ARGUMENT

TO THE HONORABLE COURT:

               Appellant requests that oral argument be granted. Argument would

benefit the Court because issues of first impression are involved, statutory

and constitutional provisions that lack judicial interpretation are implicated,

and the underlying circumstances may be easier understood verbally.



                                                      STATEMENT OF THE CASE

               This case primarily challenges a trial court’s grant of summary

judgment in favor of the State within a forfeiture suit under Chapter 59,

Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. arts.

59.01-59.04. (For orders granting summary judgment, and denying motion

for new trial, see Appendices A-1 and A-2 in Appellant’s Original Brief.)




ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                             IX	  
                                                          ISSUES PRESENTED



    I. The trial court erred by granting summary judgment for Plaintiff
       because Defendant’s evidence conclusively proved, or raised a fact
       issue on, every element of the statute of limitations defense.

    II. The trial court erred by granting full and final summary judgment
        because all issues, claims, and defenses were not decided.

    III. The trial court erred by granting summary judgment for Plaintiff
         because evidence supporting Plaintiff’s summary judgment was
         incompetent and insufficient.

    IV. Summary judgment was premature because the case was still
        developing, the state did not comply with discovery, evidence
        discovered after the trial court’s order of summary judgment shows
        this, and Defendant was not provided a fair opportunity to investigate
        and develop the case—due to the fault of Plaintiff.

    V. Summary judgment could not have been granted based on authorities
       analyzing a spouse’s right to utilize an innocent owner defense because
       those authorities are wrong, and should be overruled.

    VI. Summary judgment should not have been granted for Plaintiff for any
        other reason.




ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                        X	  	  
                                                          STATEMENT OF FACTS

               On March 5, 2014, a warrant issued for seizure of a 2004 Dodge truck

and 2000 Buick sedan located at Mrs. Alcorn’s residence, 624 N. Wilcox,

Rockdale, Texas 76567. (I C.R. 302) Deputy Chris White’s affidavit

supporting the warrant alleged two instances (almost 14 and 8 months)

before seizure when Mrs. Alcorn’s husband used each vehicle to sell cocaine

to a confidential informant. (Id. at 304) Deputy White said the events were

documented on video. (Id. at 303-04)

               Deputy White’s search for registered owners of the vehicles found

that James Rackley and Gill Shamsher were named on certificate of title. (I

C.R. 303) Deputy White also claimed Mrs. Alcorn’s husband was the owner

of the vehicles, which were kept at the known residence of 624 N. Wilcox,

and said neither Rackley nor Shamsher appeared to have “any claim to the

vehicles in the previous year to present.” (Id. at 304)

               The next day, March 6, 2014, law enforcement seized the vehicles at

Mrs. Alcorn’s residence, 624 N. Wilcox, Rockdale, Texas 76567. (I C.R.

306) Before seizing the vehicles, law enforcement provided Mrs. Alcorn

with a warrant, and return and inventory. (Id. at 228-29) Law enforcement

also observed Mrs. Alcorn remove her personal items from each vehicle, and

had her sign an inventory sheet describing those items, such as her W.S.L.

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                                1	  
perfume, cell-phone plugs, house key, kids’ medical papers, and other items.

(I C.R. 225-31) Mr. Alcorn was not present because he was in the Milam

County jail, where he had been for about a month. (Id. at 226, 308)

               On March 18, 2014, the Milam County District Attorney filed a notice

of seizure and intended forfeiture (i.e., the petition). (Id. at 5) Another

affidavit by Deputy White was attached, which basically gave the same facts

as the one sworn to before seizure. (Id. at 10-11) A Schedule A was also

attached, and valued the the truck at $6,000, and the car at $3,000. (Id. at 53)

               The State personally served James Rackley and Gill Shamsher at their

residences, personally served Mr. Alcorn in jail, and later obtained

judgments against each. (I C.R. 20, 22, 24; 28; 116; 351-353)

               On May 28, 2014, eighty-two days after seizure, Mrs. Alcorn filed an

answer even though she had not been served by any method. (I C.R. 26)

               The State then moved for traditional and no-evidence summary

judgment against Mrs. Alcorn. (I C.R. 38-43) First, the State argued that

Mrs. Alcorn lacked standing to raise the innocent owner defense of Article

59.02(c), Texas Code of Criminal Procedure, because she was a spouse. (Id.

at 38, 39) Next, it argued that (1) no evidence supported Mrs. Alcorn’s

ownership interest because those listed on certificate of title were presumed

owners, and or (2) no evidence supported that Mrs. Alcorn had a reasonable


ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                             2	  
lack of knowledge that the vehicles would be used to commit actionable

offenses. (I C.R. 39-43)

               Mrs. Alcorn filed a verified amended answer, denied all allegations,

denied that all conditions precedent were met, and asserted affirmative

defenses (limitations, disproportional forfeiture, and innocent owner

defenses under §§ 59.02(c) and (h)(1)(C)). (I C.R. 127) She also responded

and objected to the State’s motions, evidence, pleadings, discovery, and

timing, and argued she was entitled to summary judgment. (Id. at 130-329)

               Mrs. Alcorn submitted evidence along with her summary judgment

motion and response, including an affidavit from James Rackley.

               Rackley said he sold the truck to Mrs. Alcorn’s husband in 2013,

delivered title and transfer papers to Mrs. Alcorn at Meadowbrook Baptist

Church, and had already informed the State about the transfer. (Id. at 223)

               Mrs. Alcorn’s affidavit said she drove both vehicles, paid for the

Buick, and that, within a month before seizure, Officer Assaker saw her with

the truck at a carwash after it was used to help friends move. (Id. at 226)

               Mrs. Alcorn informed that the rims seized with the Buick were worth

more than the values given on Schedule A, and that they had disappeared in

police custody. (Id.) Mrs. Alcorn worked extra hours; her husband worked in

his family’s lawn business and various temp agency jobs, traded property,


ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                                 3	  
sold property he fixed up, and financed vehicles, and had reasonable

explanations about where he got money; her mother-in-law baby-sat her kids

because she and her husband both worked; and she had no knowledge or

belief that her husband used or sold drugs, or did so using any of their

property, and, even if he did, she did not consent to it. (I C.R. at 226-27)

                One hundred fifty two days after seizure (on August 6), the State

amended its petition, added Mrs. Alcorn as a party, gave her address for

service of process as 624 N. Wilcox, prayed she be cited to appear, and

faxed a copy to her attorney. (I C.R. 331-33, 335, 336)

               On August 27, the trial court sent a letter recognizing Mrs. Alcorn’s

standing, and her rights as an interest holder under the law, but said her

affidavit did “not ring true,” and that the State’s motion would be granted. (I

C.R. 347) Before judgment was granted, Mrs. Alcorn sent written requests to

the court for clarification of the court’s proposed decision, and, again, for

rulings on responses and objections. (Id. at 349) Without responding, the

trial court granted final summary judgment. (Id. at 351)

               Mrs. Alcorn moved for new trial, renewed objections and requests,

objected to the court’s action and grant of final judgment, and presented new

evidence she would have presented had there been sufficient time for

discovery. (I C.R. Supp. 4-137)


ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                                  4	  
               Within Mrs. Alcorn’s motion for new trial, Gill Shamsher’s affidavit

showed Mrs. Alcorn actually did pay $2,000 for the Buick. (I C.R. Supp. 88)

An Eagle Automotive receipt showed improvements of $3,000 made to the

Buick on August 5, 2013—roughly seven months after the alleged act. (Id.

at 90) John Krause of Rockdale Auto Specialties gave an affidavit stating he

“did paint and body work on the Alcorns’ Buick” for a “total value of …

$4,000.” (I C.R. 357) A receipt from The Rim Shop in Austin showed rims

seized with the truck were purchased for $1,800 on February 4, 2014—six

months after the act alleged by the State. (Id. at 360)

               More pictures and evidence of the missing rims seized with the Buick

showed their value, and later disappearance from a highly secure impound

area at the sheriff’s office. (I C.R. 226, 230-31) (I C.R. Supp. 106-09)

               Finally, the court was again informed of hardships and severe family

sicknesses surrounding Mrs. Alcorn and her attorney; and the State’s

untimely service, unreasonably burdensome discovery tactics, failure to

disclose evidence (like witnesses, parties, method of valuation, and

disappearance of property), and unreasonable timing in moving for no-

evidence summary judgment. (I C.R. Supp. 126-33) (I C.R. 173-80; 238-43).

               Even so, the trial court denied her motion for new trial, and refused to

rule on her objections for the third time. (I C.R. Supp. 138)


ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                          5	  	  
                                                  SUMMARY OF REPLY POINTS

               Mrs. Alcorn did not waive service under the limitations defense

because she appeared more than 50 days after the limitation period expired.

               The State served Mrs. Alcorn with copies of the warrant and inventory

because she was an owner or person in possession of property that it seized;

therefore, the State cannot fairly argue for the first time on appeal that it did

not know Mrs. Alcorn was an owner or possessor. The State was required to

explain its diligence in the trial court, but failed to do that, and cannot try to

create a fact issue by explaining on appeal how its actions were diligent.

               The State incorrectly assumes both that underlying facts support its

affidavit, and that probable cause to believe property is contraband also

means the property is, in fact, contraband.

               The rule prohibiting spouses from using innocent owner defenses is

not “well-settled.” In fact, it is inconsistent with law. Spouses need those

defenses to prevent inequitable results, and to level the playing field.

               Finally, the State starts and ends with facts entirely absent from the

record, and ignores problems with its motion and the trial court’s judgment.




ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	        	                    6	  	  
                                                          I. REPLY POINTS

A. THE STATE CONTINUES TO IGNORE RULES REGARDING SERVICE.

               Upon seizing Mrs. Alcorn’s vehicles, the State served her with copies

of a warrant, return and inventory, and had her sign an inventory log for

personal items she removed from the vehicles. (I C.R. 228-231)

               State agents must give a copy of the warrant to the owner or person in

possession of the place where property is seized. TEX. CODE CRIM. PROC. art.

18.06(b). State agents must also sign and “present a copy of the inventory to

the owner or other person in possession of the property.” Id.

               Although the State served Mrs. Alcorn with a warrant and inventory,

she was not served with suit.

               Mrs. Alcorn first appeared on May 28, 2014. (I C.R. at 26) This was

over 50 days after the Thirty-day limitations period ran on April 5, and 82

days from when seizure occurred on March 6. (Id. at 306)

               Because Mrs. Alcorn appeared outside the limitations period, service

was not waived. Because the State acknowledged Mrs. Alcorn’s status by

serving her a warrant and inventory, it cannot claim her status was unknown.

               Thus, even using the State’s interpretation, diligence was not shown

because the State did not explain an 82-day-delay.



ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	            	                   7	  	  
1.             Filing an answer does not waive service of process for purposes of
               the statute of limitations defense.

               Seizure occurred on March 6, 2014. (I C.R. 306) Appellant answered

on May 28; over 50 days after the Thirty-day limitations period ran on April

5. (Id. at 26)

               The State erroneously uses $27,920.00 v. State to advance a theory

that a defendant waives service under the statute of limitations defense by

appearing in suit. 37 S.W.3d 533 (Tex. App.—Texarkana 2001). First,

$27,920.00 mentions no statute of limitations defense or 30-day service

requirement. Second, Yingling, the claimant in $27,920.00, did not lose

because he generally appeared, but because he failed to show he had any

interest in the property being forfeited. 37 S.W.3d at 537-38.

               In fact, the Texarkana Court said that once Yingling showed himself

to have an interest in the property, “he was a necessary party on whom

service was required to be made, and without service there could be no

binding judgment against him.” Id. at 537. Thus, $27,920.00 actually

supports that the State would be responsible for properly serving Yingling if

he proved his interest—even if it initially overlooked that interest.

                Next, the State’s theory confuses two concepts. Attacking service

made outside the 30-day window differs from complaining over the “form,

substance, or manner of service…” $6453.00 v. State, 63 S.W.3d 533, 535-

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                         8	  	  
36 (Tex. App.—Waco 2001, no pet.) (distinguishing limitations defense

from defective service). The 30-day service requirement goes to “timeliness

of service. It relates to the affirmative defense of limitations.” Id. at 536.

               Here, Appellant attacks service under the 30-day limitations defense.

For this purpose, appearing after the 30-day period does not waive service.

Griffin v. Hale, 2010 Tex. App. LEXIS 6094, at *3 (Tex. App.—Eastland

July 29, 2010, no pet.) (mem. op.) (finding no waiver when appearance

occurred after limitations period); $24,156.00 v. State, 247 S.W.3d 739, 747

(Tex. App.—Texarkana 2008, no pet.) (same); Simmons v. Elmow Holdings,

Inc., 2008 Tex. App. LEXIS 5199, at *13 (Tex. App.—Fort Worth July 10,

2008, pet. denied) (mem. op.) (same); Parmer v. DeJulian, 2008 Tex. App.

LEXIS 6875, at *9 (Tex. App.—Tyler Sept. 17, 2008, no pet.) (mem. op.)

(same); James v. Gruma Corp., 129 S.W.3d 755, 760-61 (Tex. App.—Fort

Worth 2004, pet. denied) (same); Seagraves v. City of McKinney, 45 S.W.3d

779, 783 (Tex. App.—Dallas 2001, no pet.) (same); cf. Baker v. Monsanto

Co., 111 S.W.3d 158, 160-61 (Tex. 2003) (complaint about service barred

when appearance made within limitations period).

               Thus, giving full devotion to the State’s interpretation, the State must

prove that it used due diligence to effectuate service on Mrs. Alcorn because

her first appearance was more than 50 days after the limitations period ran.


ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                              9	  	  
2.             The State was not diligent because it was unquestionably aware
               that Mrs. Alcorn required service by citation, its actions speak
               louder than words, and, even then, its words are too late.

               As master of its suit, Plaintiff had to ascertain claims, discover those

requiring service, and ensure proper execution of service. Mrs. Alcorn did

not owe these duties, nor was she required to thrust herself into litigation for

plaintiff’s advantage, because, absent proper service, she did not need to

participate at all. Ross v. Nat'l Ctr. for the Empl. of the Disabled, 197

S.W.3d 795, 797-98 (Tex. 2006) (“A party who becomes aware of the

proceedings without proper service of process has no duty to participate in

them.” (quoting Caldwell v. Barnes, 154 S.W.3d 93, 97 n.1 (Tex. 2004)).

               As such, the State had the duty to make diligent efforts to serve

owners, interest holders, and possessors. Both the law and state publications

place this responsibility on the State.1 Thus, the State was not diligent in its

attempts to serve Mrs. Alcorn because her possession of the vehicles was

clearly observed through the eyes of multiple State agents. And, Mrs.

Alcorn’s other interests were known or constructively known, but even if

some interest were unknown, due to lack of action or explanation or both, no

evidence supports that the State diligently strived to make it known.


1
 TEX. CODE CRIM. PROC. art. 59.04(b), (c), and (j); Don Clemer and Ann B. White,
Texas District & County Attorney Association, Guide to Asset Seizure and Forfeiture, at
7 (2010) (hereafter “TDCAA Guide”).

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                          10	  	  
       a. The State knew Mrs. Alcorn was entitled to service by citation.

               The State’s agents came to Mrs. Alcorn’s house; took cars from her

driveway; presented her with a warrant and inventory for those vehicles;

observed her remove her personal items from each vehicle; had her sign an

inventory for those items; and described those items on the inventory, such

as her W.S.L. women’s perfume, cell-phone plugs, house key, and kids’

medical papers. (I C.R. 225-31)

               Mrs. Alcorn’s spousal status was undisputed, she signed the inventory

with the name Alcorn, and easily available public records show the State had

reason to know this status. (Id. at 311, 300, 298) (I C.R. Supp. 123) The

State knew Appellant’s husband was not in possession since it knew that he

was in jail and that he had been there for almost a month. (I C.R. 308)

               Mrs. Alcorn drove both vehicles, was seen by Officer Assaker in

possession of the truck at a carwash in the month before seizure, paid money

for the Buick, and none of this was challenged. (Id. at 226) (I C.R. Supp. 88)

               At the very least, Plaintiff knew Mrs. Alcorn was in possession, and

had inquiry notice that her interest may be more significant.

               And, the State cannot claim Mrs. Alcorn was not in possession after it

served her with a warrant and inventory as an owner or person in possession

of the property. TEX. CODE CRIM. PROC. art. 18.06(b). (I C.R. 228-29)


ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                          11	  	  
               Assuming the State did not know of Appellant’s ownership interest,

there is no valid excuse for failing to serve her because it served two people

it knew before seizure claimed no interest in the vehicles. (I C.R. 217-18)

               The State also irrefutably admitted before seizure and before filing

suit that Mrs. Alcorn’s husband owned both vehicles, which were kept at

624 N. Wilcox. (Id. at 217, 220) James Rackley (a neutral party, and one

listed on certificate of title) also stated that he possessed no interest in the

truck, delivered it to Mr. Alcorn, passed its title and transfer papers to Mrs.

Alcorn, and relayed this to the State. (Id. at 223) Because the State served

two people it knew had no interest before seizure, ignoring Mrs. Alcorn’s

interest—even if it did not think she had any interest—was not diligent.

               But, the State did know, or is deemed to have known, of her interests.

The State’s amended petition “added Mrs. Alcorn as a statutory claimant”

(State’s Br. at 3, ¶ 1, ll. 2-3), and confirmed its awareness that she was

entitled to service by citation at 624 N. Wilcox. (I. C.R. 332-33, 335)

               For what it’s worth, the trial court also found “Ms. Alcorn was

entitled to the requisite rights provided any holder of interest under Chapter

59.” (I C.R. 347-48)




ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                          12	  	  
       b. The State failed to show diligence because it offered no explanation.

               Appellant answered on May 28, 2014 (I C.R. 26), which was 82 days

from the day of seizure on March 6. (Id. at 306)

               The State did not respond with any explanation of diligence it used to

obtain service on Mrs. Alcorn; thus, the State was not diligent as a matter of

law. One 1991 Chevrolet Blazer v. State, 905 S.W.2d 443, 445 (Tex. App.—

Amarillo 1995, no writ) (holding diligence lacking as a matter of law when

“no excuse is offered…”). See also Hull v. Vidaurri, 2010 Tex. App. LEXIS

424, at *17 (Tex. App.—Austin [3rd Dist.] Jan. 22, 2010, pet. denied) (mem.

op.) (requiring plaintiff to “explain all gaps,” show “diligent efforts”, and

explain efforts taken during the “allegedly improper gap.”); Mitchell v.

Timmerman, 2008 Tex. App. LEXIS 9710, at *20 (Tex. App.—Austin [3rd

Dist.] Dec. 31, 2008, no pet.) (mem. op.) (discussing responsibility “to

explain the delay.”); Plantation Prod. Props., L.L.C. v. Meeks, 2004 Tex.

App. LEXIS 8206, at *18-19 (Tex. App.—Waco Sept. 8, 2004, no pet.)

(mem. op.) (plaintiff did not show diligence by failing to “explain the prior

57-day delay”); Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex. App.—Houston

1999, pet. denied) (finding no diligence because party did not explain efforts

taken in the 26 days after limitations period ran); Perkins v. Groff, 936

S.W.2d 661, 668 (Tex. App.—Dallas 1996, writ denied) (diligence lacking


ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                       13	  	  
where party did not explain 18-day delay); Knox v. Donovan Lowery Ins.

Agency, 405 S.W.2d 160, 161 (Tex. Civ. App.—Eastland 1966, no writ) (no

diligence for unexplained 8-day delay).

               Further, the State’s untimely attempt to explain its diligence on appeal

still fails. The State only presents excuses about why it did not seek service

instead of showing efforts taken to obtain service on Mrs. Alcorn. Slagle v.

Prickett, 345 S.W.3d 693, 698 (Tex. App.—El Paso 2011, no pet.) (“plaintiff

must explain what steps he took to obtain service, not explain why he did

nothing.”); Laidley v. City of San Marcos, 2011 Tex. App. LEXIS 7712, at

*13 (Tex. App.—Austin [3rd Dist.] Sept. 21, 2011, no pet.) (mem. op.)

(quoting Slagle); Mauricio v. Castro, 287 S.W.3d 476, 479 (Tex. App. —

Dallas 2009, no pet.) (finding that plaintiff must “present evidence regarding

the efforts that were made to serve the defendant.” (citing Proulx v. Wells,

235 S.W.3d 213, 216 (Tex. 2007)); Rodriguez v. Tinsman & Houser, Inc., 13

S.W.3d 47, 51 (Tex. App.—San Antonio 1999, pet. denied) (no diligence for

25 day delay after limitations date where “inactivity or complete failure to

attempt service … was due to miscommunication.”); Windle v. Mary Kay,

Inc., 2003 Tex. App. LEXIS 5594, at*6-7 (Tex. App.—Dallas July 1, 2003,

pet. denied) (mem. op.) (attorney’s affidavit negated diligence “[b]y failing

to state what efforts counsel made to effectuate service”).


ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                        14	  	  
               The State searched for those named on certificate of title before

seizing the vehicles, but never did any other search after this point. (I C.R.

304-05). There is no explanation for efforts taken during the 82-day gap

from the seizure date to Mrs. Alcorn’s appearance.

               Both the law and the State’s very own playbook contemplate that

people who are not listed on certificate of title might still require service of

process. The Texas District & County Attorneys Association guide on asset

forfeiture says that one “could establish ownership of a vehicle, not titled in

her name, by presenting evidence of a purchase contract and a disclaimer by

the owner of record… Equitable owners could conceivably include

unrecorded lienholders or contingent beneficiaries of gifts or trusts.” 2

               The guide, like the statute, also says, “The owner of the property, any

interest holder in the property, and persons in possession of the property at

the time of seizure must be served by citation as per Article 59.04(b), (c),

and (j).” 3 And, “when the possessor of the vehicle is not the recorded

registered owner… the possessor must be separately served with citation.” 4

               The State cannot claim it did not know the law. Belleza-Gonzalez v.

Villa, 57 S.W.3d 8, 12 (Tex. App.—Houston 2001, no pet.) (agreement to

2
    TDCAA Guide, at 7.
3
    TDCAA Guide, at 31.
4
    Id. at 33.

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                         15	  	  
delay service that was unenforceable under Rule 11 failed to explain

“diligence to seek service of process”); Weaver v. E-Z Mart Stores, Inc., 942

S.W.2d 167, 169-70 (Tex. App.—Texarkana 1997, no writ) (explanation of

delay based on ignorance of law raises no fact issue as to diligence).

               The State had 14 months to discover claimants for one vehicle, and 7

for the other; had another 30 days after seizure to ensure service; and had

manpower and resources available from at least three law enforcement

entities. (I C.R. 10-11) And, the State already knew that those listed on

certificate of title claimed no interest. (Id. at 217-18) Thus, with all these

resources, the State did not act prudently by performing one fruitless search.

               The State also did not act diligently by ignoring Appellant’s interest,

especially after it served her with warrant and inventory as an owner or

person in possession of the property. Tex. Code Crim. Proc. art. 18.06(b).

               Therefore, by the State’s theory, the State has no valid explanation

because it made no efforts to procure issuance of citation or effect service on

Mrs. Alcorn for at least 81 days. Under Appellant’s view, service was never

effected. Simmons, 2008 Tex. App. LEXIS 5199, at *14 (finding that

plaintiff “never effected service” on defendant, and defendant did not waive

right to service when it appeared after limitations period) (emphasis original)




ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                          16	  	  
B. THE STATE’S EVIDENCE IS NOT COMPETENT FOR SUMMARY JUDGMENT.

               The State’s failure to submit evidence in accordance with rules of

summary judgment cannot be excused.5 Deputy White’s affidavit could not

support summary judgment because it was impermissibly based on facts that

were known and provided by out of court declarants.6 Even then, Deputy

White only said they were documented on unattached, unproduced videos. 7

               Also, the State must conclusively prove both (1) that probable cause

exists to seize property believed to be contraband, and (2) that property is

actually contraband. State v. $90,235.00, 390 S.W.3d 289, 293 (Tex. 2013).

               Thus, the State did not prove probable cause to believe the vehicles

were contraband, and it could not assume the same evidence also established

that the vehicles were, in fact, contraband.




5
 Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 435 (Tex. App.—San
Antonio 1993, writ denied) (“The law in Texas is well settled that summary judgment is a
harsh remedy which must be strictly construed.”).
6
  TEX. R. CIV. P. 166a(f); Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (finding
summary judgment affidavit incompetent because “testimony about … out-of-court
sources was hearsay” and not within affiant’s knowledge). See also United States v.
$92,203.00, 537 F.3d 504, 507-510 (5th Cir. 2008) (reversing summary judgment
because investigator’s affidavit was hearsay—based on what other officers told
investigator—and, thus, not based on personal knowledge either).
7
 Natural Gas Clearinghouse v. Midgard Energy Co., 23 S.W.3d 372, 380 (Tex. App.—
Amarillo 2000, pet. denied) (finding that hearsay statements in affidavits may not be
made the basis of a summary judgment, and that supporting information found on
unattached computer disk does not support summary judgment as a matter of law).

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                           17	  	  
1.             The State did not conclusively prove probable cause because only
               unidentified declarants, lacking qualifications and support by
               independent corroboration, knew the determinative facts.
               The affidavit dealt with one (or two) confidential informant(s). (I.

C.R. 10) Because the informant was confidential, and no facts demonstrated

its veracity, the State’s affidavit started off with two strikes against it.

               Although no facts prove up past reliability, the State says probable

cause was proven because the information was detailed. (State’s Br. at 16.) It

first boasts of the informant(s) having detailed knowledge about the alleged

substances being cocaine. But that begs the question: how did the informant

know? Was it a pro drug dealer, ex-cop, DPS, lab tech, or another known to

knowledgeable officers? We don’t know. The affiant never said.

               The affiant never said any officer actually saw illegal drugs; only that

an officer could identify Mr. Alcorn and his vehicle. (I. C.R. 10) The affiant

never described any substance or packaging; never said if the informant(s)

showed “cocaine” to an officer after the “sale”; never said if lab or chemical

tests were done; and never gave an amount of money involved in any “sale”.

               The affiant never said that he saw any video showing illegal drugs;

never referenced the location of any video(s); never attached any video(s);

and never said whether any video(s) showing illegal drugs currently exist.8


8
    Nat. Gas Clearinghouse, supra, n.7 (finding affidavit insufficient for not attaching disk)

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                               18	  	  
               The State next claims the informant(s) arranged “multiple drug sales”

that showed an on-going enterprise, and Mr. Alcorn’s “modus operandi,”

which is (surprisingly argued to mean) that selling drugs from a vehicle at a

given location is somehow unique or original. (State Br. at 17.)

               However, this was not a case where one saw activity 24 hours ago.

Only one act was alleged for each auto in a 14-month period. No other acts,

legal or illegal, were alleged. The affiant never said why time, day, location,

conduct, body language, and or circumstances made two interactions “drug

sales” as opposed to friendly exchanges. The two events were in different

locations, different vehicles, over six months apart, and at different times,

thus, there is no indication of on-going crime or a modus operandi.

               The affiant also had no personal knowledge of either act. No other

acts, legal or illegal, inside or outside of the vehicles, were alleged. The

affiant did not see any other acts, illegal drugs, or depictions of illegal drugs.

The affiant never said who informed him of anything, whether he spoke to

Lieutenant Clore, the informant(s), or read somebody’s report or field notes.

Thus, the affiant provided no independent corroboration—and that’s strike

three.9


9
  Elardo v. State, 163 S.W.3d 760, 766 (Tex. App.—Texarkana 2005, pet. ref'd)
(although unnamed informant saw suspect view illegal material stored on suspect’s
computer in suspect’s house in last 12 hours, described house, knew suspect very well,

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                             19	  	  
2.             Existence of probable cause to believe property is contraband
               does not equally prove that the property is, in fact, contraband.

               The State claimed (without any discussion) that the same facts used to

prove probable cause also prove contraband. (State’s Br. at 17.) The State

must conclusively prove each element because the analyses are different.

$90,235.00, 390 S.W.3d at 293.

               Right now, there is no indication that anyone, or any evidence, will

positively identify illegal drugs. Because the affiant never said if any officer

actually saw illegal drugs, only the confidential informant(s) may testify to

this fact. What are the motives of the informant(s)? After 14 months, are

witnesses (informants) dead, lacking memory, or still within reach? And,

and heard on several occasions that suspect kept illegal material, warrant’s facts were
insufficient to find “the 'reliable source' … reliable” and did not “contain any
corroboration of the informant's information or other indicia of reliability.”); Parish v.
State, 939 S.W.2d 201, 204 (Tex. App.—Austin [3rd Dist.] 1997, no pet.) (“We do not
think these scant facts [corroborating that defendant’s motel room and car were properly
identified by the informant] supplied a basis for the tip's reliability. They were
ascertainable by anyone who Parish may have been in contact with; for example, he may
have related them to the motel clerk when he registered for the room.”). Compare above
cases with, Flores v. State, 319 S.W.3d 697, 703 (Tex. Crim. App. 2010) (stating
informer's tip that illegal drugs were at certain residence may have been insufficient by
itself, but affiant independently corroborated tip with two garbage-can searches outside
residence); Davis v. State, 202 S.W.3d 149, 156 (Tex. Crim. App. 2006) (informant tips
were corroborated by crimestopper's tip, and affiant’s smell of drugs emitting from house
within last 24hrs); State v. Delagarza, 158 S.W.3d 25, 28 (Tex. App.—Austin [3rd Dist.]
2005, no pet.) (tip from anonymous informer of unknown reliability corroborated by
officers’ collection of paraphernalia from trash cans outside residence that field tested
positive for cocaine). See also State v. 2004 Lincoln Navigator, 2014 Tex. App. LEXIS
9557, at *17-20 (Tex. App.—Corpus Christi Aug. 28, 2014, pet. filed) (mem. Op.)
(finding no reasonable suspicion to support informant’s tip, examining need for police to
corroborate informant’s information, and discussing Davis v. State, 989 S.W.2d 859, 865
(Tex. App.—Austin [3rd Dist.] 1999, pet. ref'd), where police provided insufficient
corroboration of tip by merely confirming the description of the car and the occupants)).

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                           20	  	  
what if no video exists? Even if it does exist, does it show illegal drugs?

Right now, we do not know because the affiant never said that he watched it.

               In other words, regardless of probable cause, the State still might not

prove its case at trial.10 If proof of probable cause also established

contraband, the state could move for summary judgment whenever a judge

granted a warrant because the officer’s belief would be conclusive. This

would violate the right to jury trial, and there would be no way to test the

government’s reasonable belief. This is not how our system is/was set up.

               Appellant stands by all objections already made to the State’s

summary judgment evidence.




10
  Garcia, 859 S.W.2d at 435 (“summary judgment should not amount to a trial by
deposition or affidavit, or be resolved by weighing the relative strength of the conflicting
facts and inferences.” (citing Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557,
562-63 (Tex. 1962)).

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                             21	  	  
C. AMRANI-KHALDI      IS NOT ‘WELL-SETTLED’, IS CONTRARY TO LAW, AND
       OVERRULING IT WOULD ONLY LEVEL THE PLAYING FIELD.


               Amrani-Khaldi v. State 11 is not “well-settled.” (State’s Br. at 18.) Of

the few appellate cases referencing Amrani-Khaldi’s rule, none analyze it, 12

and it is unessential to the holding in others.13 Amrani-Khaldi also does not

cite one Texas case or discuss any other case to support its rule.14

               Amrani-Khaldi and Gaston are skeletal remains of once popular, but

now outdated public policy rationales. For instance, innocent owners could

not recover on insurance policies for property damage caused by a co-owner.
15
     This rule prevented wrongdoers from benefitting via co-ownership, and

the harsh result deterred insurance fraud by co-owners acting in collusion. 16



11
     575 S.W.2d 667 (Tex. Civ. App.—Corpus Christi 1978, no writ).
12
   Gray v. State, 1999 Tex. App. LEXIS 8213, at *5-7 (Tex. App.—Austin [3rd Dist.]
Nov. 4, 1999, no pet.) (mem. op., not designated for publication); Bochas v. State, 951
S.W.2d 64 (Tex. App.—Corpus Christi 1997, no writ); Gaston v. State, 641 S.W.2d 261,
264 (Tex. App.—Houston 1982, no pet.).
13
   The Gray claimant was a party to the offense, and was not innocent. 1999 Tex. App.
LEXIS 8213, at *5-6. In Bochas, a defendant-spouse’s claim was subordinate to the claim
of a non-spouse-buyer, who could not establish a right to relief; and the court merely
referenced Gaston, supra, in a footnote, but entertained the defendant-spouse’s appeal
anyway. 951 S.W.2d at 67 n.2. See also State v. One Red 1988 Chevrolet Silverado, 2001
Tex. App. LEXIS 4018, at *5 (Tex. App.—Corpus Christi June 14, 2001) (mem. op., not
designated for publication) (issue tried by consent).
14
  Amrani-Khaldi, 575 S.W.2d at 669 (citing People v. One 1939 La Salle 8 Touring
Sedan, 45 Cal. App. 2d 709, 712 (1941); People v. One 1941 Buick Club Coupe, 72 Cal.
App. 2d 593, 597 (1946); State v. One 1968 Buick Electra, Del. Reg. 43003, 301 A.2d
297 (Del. Super. 1973)).
15
     Kulubis v. Tex. Farm Bureau, 706 S.W.2d 953, 955 (Tex. 1986).
16
     Id.

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                          22	  	  
               Yet, strict application of such rules create results just as repugnant to

public policy, like unjust enrichment to insurance companies; 17 divorce and

partition of property merely to avoid “the possibility that the wrongdoing

spouse might benefit”; 18 and “the injustice of imputing one person's

criminal acts to an innocent victim.” 19

               Thus, “courts must also recognize that public policy may change over

time.” 20

               Furthermore, public policy rules cannot be created or upheld unless

courts carefully construe “the constitution, laws, and judicial decisions.” 21

“Courts are to derive public policy from existing law, not create it.” 22

               Accordingly, courts cannot decline to apply a statutory remedy, but do

just that by denying spouses the use of available statutory defenses to protect

well-recognized property rights. Therefore, Amrani-Khaldi’s rule cannot be

sustained because it is contrary to law, and creates inequitable results.




17
 Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 674-75 (Tex. 2008)
(Hecht, J., concurring) (citing Kulubis, 706 S.W.2d at 955).
18
     Texas Farmers Ins. Co. v. Murphy, 996 S.W.2d 873, 880-881 (Tex. 1999).
19
 Fairfield Ins. Co., 246 S.W.3d at 674-75 (Hecht, J., concurring) (citing Kulubis, 706
S.W.2d at 955).
20
     Id. at 673.
21
     Id.
22
     Id.

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1.             Amrani-Khaldi’s rule is unsupported by Texas law because no one
               incurred liability, there is no liability, and Mrs. Alcorn's
               community property cannot be forfeited merely due to the act of a
               spouse.
               The Amrani-Khaldi rule was formulated from § 5.61 (now §3.202(c)),

Texas Family Code, expressing that a spouse’s sole or joint management

community property is subject to the liabilities incurred by the spouse before

or during marriage. 575 S.W.2d at 668. Based on this provision, Amrani-

Khaldi reasoned that, “community property is not exempt from forfeiture

where such property is used by a spouse in such a manner as to contravene

[forfeiture laws], even though such property is so used by one spouse

without the knowledge or consent of the other spouse.” Id. at 668-69.

               However, the family code does not support the above rule. “[A]

community debt means nothing more than that some community property is

liable for its satisfaction.” 23 Yet, “[e]xcept as provided by [§§ 3.201-03],

community property is not subject to a liability that arises from an act of a

spouse.” TEX. FAM. CODE § 3.201(b). “A spouse does not act as an agent for

the other spouse solely because of the marriage relationship.” Id. §(c). And,

these family code sections do not create liability.24


23
  Tedder v. Gardner Aldrich, LLP, 421 S.W.3d 651, 655 & n.21 (Tex. 2013) (quoting
Joseph W. McKnight, Family Law: Husband and Wife, 37 SW. L.J. 65, 76-77 (1983)
(discussing Tex. Fam. Code §3.202).
24
     Tedder, 421 S.W.3d at 655 n.21 (noting that “[§3.202] does not impose liability”).

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                              24	  	  
               In this case, there “is not a forfeiture for the payment of the owner's

debts.” Lot 39 v. State, 85 S.W.3d 429, 432 (Tex. App.—Eastland 2002, pet.

denied). There “is not a forfeiture for … the payment of the claims of

creditors.” Id. There is no tort liability, or needed compensation “to make

someone whole for injury caused by unlawful use of the property.” Austin v.

United States, 509 U.S. 602, 625 (1993) (Scalia, J., concurring). There is

nothing owed for “any damages sustained by society or … the cost of

enforcing the law.” United States v. Ward, 448 U.S. 242, 254 (1980).

               And, there is not a forfeiture to pay criminal restitution or fines, or to

“satisfy a criminal debt.” United States v. Aguirre, 476 F. App'x 333, 335

(5th Cir. 2012) (explaining difference in foreclosure to pay criminal debt

versus forfeiture; wife’s interests in property could be foreclosed because

her husband owed restitution (debt) that obligated her interest; foreclosure

and forfeiture procedures are different; and no statutory excuse applied

(citing United States v. Loftis, 607 F.3d 173, 178 (5th Cir. 2010) (explaining

similar situation where statute made restitution a “debt”)).

               Therefore, there is no liability, no one owes anything, and no one is

owed anything. Even so, Mr. Alcorn incurred no liability; therefore, none of

Mrs. Alcorn’s community property is subject to any liabilities incurred by

Mr. Alcorn. TEX. FAM. CODE § 3.202(c). And, Mrs. Alcorn’s community


ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                             25	  	  
property is not subject to forfeiture merely because Mr. Alcorn’s act gave

rise to the forfeiture action because Mr. Alcorn is not her agent. TEX. FAM.

CODE § 3.201(b) (unless specified by §§ 3.201-03, community property is

“not subject to a liability that arises from an act of a spouse”); id. §(c) (“[a]

spouse does not act as an agent for the other spouse solely because of the

marriage relationship.”).

               Regardless, spouses still cannot be denied the use of a statutory

remedy based on any of these family code provisions.




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2.             Spouses should be able to use available statutory protections
               because doing so is consistent with law, prevents inequitable
               results, and only levels the playing field.

       a. Spouses cannot be barred from using available statutory remedies.
               Courts cannot prevent spouses from using the innocent owner defense

because the statute makes that right available. The early privateering cases

upholding forfeiture did not protect innocent owners, but they also did not

treat joint ownership differently depending on the owners’ marital status. 25

               If a statute does not include an innocent owner defense—it is true—,

due process will not likely save an innocent’s property. Bennis v. Mich., 516

U.S. 442, 446 (1996) (discussing Michigan’s statute and relevant authority).

               But, the above cases, and the many like them, do not justify treating

joint ownership differently depending on the owners’ marital status.

               When statutes make innocent owner defenses (or other protections)

available, courts should not invent ways to deny their use to a particular

class of individuals. Doing so violates the right to equal protection under

the law. U.S. CONST. amend. XIV; and TEX. CONST. art. I, §§ 3, 13, 19.

               Even if policy supports denying that right, that policy must be derived

from the law at hand because the law “circumscribes judicial authority.” 26


25
  Austin, 509 U.S. at 612 (discussing law in privateering cases allowed forfeiture of the
whole ship despite owners’ innocence).
26
     Fairfield Ins. Co., 246 S.W.3d at 673.

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                                  27	  
               Besides, statutory defenses have been added since Amrani-Khaldi, and

even this Court’s opinion in Gray, and those statutory provisions do not

limit the type of ownership interests protected.

               Thus, all these reasons are why other state courts have said that older

“Texas cases are probably no longer good law in view of statutory changes

favoring the innocent owner defense.” State v. One 1984 Toyota Truck, 311

Md. 171, 533 A.2d 659 (1987) (citing and discussing cases).


       b. Spouses should be able to use innocent owner defenses in order to
          prevent inequitable results; and using such defenses would, at most,
          only give spouses the same advantages as other claimants.

               The State completely avoids that these two forfeitures took place

roughly 14 and 8 months after the respective acts alleged. How much money

was put into the property during that time? Again, the State should not be

able to lie in wait for this long then swoop in to take a windfall after the

spouse made improvements, or, like this case, took over purchase payments.

(This argument is discussed at length in Appellant’s Brief at 49-51.)

               Next, there is no justifiable reason to treat unmarried-joint-owners

differently. Why treat a wife differently than a fiancé, girlfriend, sister,

mother, aunt, grandmother, best friend, business partner, bank, or other

lienholder? Why draw a line at the spouse?



ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	                                 28	  
               Again, the family code does not justify treating spouses differently

because it—does not create liability. Courts had no reason to premise its rule

on a family code section that does not even create liability. Even if this so-

called “liability” exists, the family code does not justify denying spouses the

use of an available statutory defense to that “liability.”

               When no defense exists, co-owned property is as forfeitable as a

community property. Why exclude spouses when a defense actually exists?

And, why does the family code support that exclusion?

               Finally, allowing spouses to use innocent owner defenses would not

make obtaining forfeiture against spouses virtually impossible. (State’s Br.

18-19.) In fact, the defense would not be as strong for spouses as it is for

other claimants. Banks, business lien-holders, and third-party lenders could

mount stronger defenses than spouses because they are not as likely as

spouses to be closely affiliated with the wrongdoer. See Hopkins v. State,

2003 Tex. App. LEXIS 1448, at *1 (Tex. App.—Fort Worth Feb. 13, 2003,

not pet.) (mem. op.) (discussing situation where fiancé had no reasonable

lack of knowledge).




ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                          29	  	  
D. THE STATE STARTS AND ENDS WITH FACTS ENTIRELY ABSENT FROM THE
   RECORD, AND COMPLETELY IGNORES PROBLEMS WITH ITS MOTION AND
   THE TRIAL COURT’S JUDGMENT.


1.             No evidence of drug conviction, probation, or amount of drugs
               exists to analyze probable cause, contraband, or Eighth
               Amendment law.
               The record does not show Mr. Alcorn was on probation for anything;

pleaded guilty to anything; pleaded true at any probation revocation; or any

conviction or plea bargain or revocation was because he possessed illegal

drugs. None of this was mentioned until on appeal. (State’s Br. at 1, 17, 21.)

               Thus, the State’s analysis distinguishing Eighth Amendment27

disproportionality cases from this case also fails because it was based on the

existences of drug amounts and convictions and probation revocations that

do not exist. (State’s Br. at 19-21.) Furthermore, the State focused only on

what Mr. Alcorn did, when it also has to focus on Mrs. Alcorn’s interests,

payments, culpability, circumstances, and history. United States v. Ferro,

681 F.3d 1105, 1115 (9th Cir. 2012) (trial court should not “focus solely on

[husband] 's conduct and … fail to consider owner [wife]'s culpability”

(discussing von Hofe v. United States, 492 F.3d 175, 178-79 (2nd Cir. 2007)

(finding wife’s interest could not be forfeited because she had less

culpability than husband, whose interest in the property was forfeited);


27
     U.S. CONST. amend. VIII, XIV; and Tex. CONST. art. I, §13.

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                    30	  	  
Ferro, 681 F.3d at 1117 (the Constitution requires consideration of the

culpability of the property's owner).

               However, even a single conviction does not prove or justify forfeiture

of two vehicles.


2.             Mrs. Alcorn did not plead affirmative defenses in bad faith.
               The record fails to show where the trial court “found that Mrs. Alcorn

was not pleading affirmative defenses in good faith.” (State’s Br. at 4-5.)


3.             The State avoids why we are here.
               The State has avoided the fact that its motion for summary judgment

wholly revolved around Mrs. Alcorn’s inability to assert the innocent owner

defense of Article 59.02(c), and nothing else. Yet, the summary judgment

grants full and final relief on all issues, claims, defenses, and even on the

issue of no standing to contest anything.

               Spouses may at least resist forfeitures by attacking seizure, proof of

contraband, forfeiture under Eighth Amendment law, and service under the

statute of limitations.

               For that reason, if nothing else, the case should be reversed.




ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                            31	  	  
                                                          III. PRAYER


               Mrs. Alcorn is praying this Honorable Court reverse and render

judgment that the statute of limitations bars forfeiture. Alternatively, Mrs.

Alcorn prays this Honorable Court reverse and remand on all issues.



                                                             Respectfully submitted,

                                                             _________________________
                                                             Benton Ross Watson
                                                             120 E. 1st Street / Box 1000
                                                             Cameron, Texas 76520
                                                             Tel: 1 (254) 307-8181
                                                             Fax: 1 (254) 231-0212
                                                             ross@texastopdefense.com
                                                             State Bar No. 24077591
                                                             Attorney for Appellant, LaToya Alcorn



                                                    CERTIFICATE OF SERVICE




This is to certify that on May 12, 2015, a true and correct copy of the above

and foregoing document was served on the Milam County District

Attorney’s Office by electronic transmission at jjohnson@milamcounty.net,

and electronic transmission was reported as complete.

                                                                      _______________________
                                                                      Benton Ross Watson

ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	          	                                32	  	  
         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 limitation of TEX. R. APP.
          P. 9.4(i) because this brief contains 7,213 words, excluding the parts
          of the brief exempted 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 WordPerfect
          X6 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.

____________________________________________
(Signature of filing party)

____________________________________________
  Benton Ross Watson
(Printed name)

____________________________________________
  Solo Practitioner
(Firm)

____________________________________________
  May 12, 2015
(Date)




ALCORN	  V.	  STATE—APPELLANT’S	  REPLY	  BRIEF	     	                  33	  	  
                    BENTON ROSS WATSON
                                ATTORNEY AT LAW
                          P.O. Box 1000 / 120 E. 1st Street
                               Cameron, TX. 76520
                                Tel: (254) 307-8181
                                Fax: (254) 231-0212
______________________________________________________________________________

May 12, 2015

Jeffrey D. Kyle
Clerk, Third Court of Appeals
P.O. Box 12547
Austin, Texas 78711-2547

RE:    Court of Appeals Number:    03-14-00704-CV
       Trial Court Case Number:    CV36,279

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

Dear Mr. Kyle:

      I am filing my reply brief again. Apparently, some sort of technical problem
removed all internal links and bookmarks, and caused error messages within the brief.

       If there are any problems or concerns, please let me know. Thank you for your
patience, assistance, and immediate notification.

                                                 Best wishes,


                                                 Benton Ross Watson
