                                                                         ACCEPTED
                                                                    03-14-00704-CV
                                                                           4254339
                                                          THIRD COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                                                               2/23/2015 9:34:23 PM
                                                                  JEFFREY D. KYLE
                                                                             CLERK

           NO. 03-14-00704-CV
                                                    FILED IN
                                             3rd COURT OF APPEALS
                                                 AUSTIN, TEXAS
                IN THE                       2/25/2015 9:34:23 PM
          COURT OF APPEALS                     JEFFREY D. KYLE
                                                     Clerk
OF THE THIRD SUPREME JUDICIAL CIRCUIT

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


         APPELLANT’S 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




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                                                            TABLE OF CONTENTS

               NAMES OF THE PARTIES TO THE FINAL JUDGMENT .... I
               TABLE OF CONTENTS ...........................................................II
               INDEX OF AUTHORITIES ..................................................... V
               REQUEST FOR ORAL ARGUMENT .................................... X
               STATEMENT OF THE CASE ................................................. X
               ISSUES PRESENTED ............................................................. XI
               STATEMENT OF FACTS ........................................................ 1
               SUMMARY OF THE ARGUMENT ........................................ 6
               ARGUMENT ............................................................................. 7
               A. STANDARD OF REVIEW. ................................................. 7
               B. SUMMARY JUDGMENT STANDARDS. ......................... 7
               I. ISSUE ONE RESTATED: ................................................... 10
                       THE TRIAL COURT OVERLOOKED THAT
                       FORFEITURE IS BARRED BY THE LIMITATIONS
                       DEFENSE. .......................................................................... 10
               A. THE STATE DID NOT MEET THE 30-DAY
                   LIMITATIONS PERIOD. .................................................. 10
               1. THE STATE MUST SERVE OWNERS, INTEREST HOLDERS, AND
                  POSSESSORS WITHIN 30 DAYS OF SEIZURE. ............................. 11
               2. THE STATUTE OF LIMITATIONS DEFENSE IS STRICTLY
                  CONSTRUED. .......................................................................... 12
               3. THE STATE FAILED TO SATISFY THE 30-DAY STATUTE OF
                  LIMITATIONS.......................................................................... 15

               B. THE STATE DID NOT USE DUE DILIGENCE AS A
                   MATTER OF LAW. ........................................................... 17
               1. THE STATE OFFERED NO EVIDENCE OF DILIGENCE, AND THE
                  TRIAL COURT ERRONEOUSLY ASSUMED A VALID EXCUSE. ...... 18
               2. CERTIFICATE OF TITLE AND OWNERSHIP ARE IRRELEVANT AS TO
                  DILIGENCE. ........................................................................... 20
               3. THE STATE USED NO CONTINUOUS DUE DILIGENCE TO SEEK
                  TIMELY SERVICE. ................................................................... 22



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               II. ISSUE TWO RESTATED: ................................................. 24
                   GRANTING FINAL SUMMARY JUDGMENT WAS
                   INAPPROPRIATE BECAUSE ISSUES, CLAIMS, AND
                   DEFENSES ARE UNRESOLVED. ................................... 24
               1. THE STATE’S MOTION FOR SUMMARY JUDGMENT ONLY
                  CHALLENGES MRS. ALCORN’S USE OF THE INNOCENT OWNER
                  DEFENSE UNDER 59.02(C). ..................................................... 25
               2. MRS. ALCORN PUT EVERYTHING IN ISSUE. ............................. 26
               a. The State must conclusively prove that probable cause
                  existed to seize, and that the property is contraband subject
                  to forfeiture........................................................................... 26
               b. Mrs. Alcorn asserted the limitations defense. ...................... 27
               c. Mrs. Alcorn claimed the defense under Article
                  59.02(h)(1)(C). ..................................................................... 27
               d. Mrs. Alcorn claimed the defense of disproportional
                  forfeiture under the Eighth Amendment. .............................. 28
               III. ISSUE THREE RESTATED: ............................................ 31
                   THE TRIAL COURT’S DECISION TO GRANT
                   SUMMARY JUDGMENT IN FAVOR OF THE STATE
                   IS NOT SUPPORTED BY THE EVIDENCE.................... 31
               1. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT
                  FOR THE STATE BECAUSE THE EVIDENCE IS INSUFFICIENT AND
                  INCOMPETENT. ....................................................................... 31
               a. Motion to strike affidavit of Deputy White because it is
                  based on unverifiable hearsay, and on facts outside his
                  personal knowledge. ............................................................. 33
               b. Motion to strike affidavit because it makes unsubstantiated
                  legal and factual conclusions ............................................... 34
               c. The State’s affidavit does not conclusively establish
                  probable cause. .................................................................... 38
               d. The State’s pleadings, even when sworn, cannot support its
                  own summary judgment........................................................ 41
               e. Deemed Admissions of others are inadmissible against Mrs.
                  Alcorn. .................................................................................. 41
               2. THE STATE NEITHER RAISED NOR PROVED A CLAIM THAT EITHER
                  SET OF RIMS CONSTITUTES CONTRABAND. ............................. 42
               3. THE STATE’S NO-EVIDENCE MOTIONS ERRONEOUSLY EMPLOY
                  CONFLICTING EVIDENCE, AND GENUINE ISSUES OF MATERIAL
                  FACT DO EXIST. ...................................................................... 42

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               IV. REMAINING ISSUES RESTATED: ................................ 47
                       SUMMARY JUDGMENT SHOULD NOT HAVE BEEN
                       GRANTED TO THE STATE. ............................................ 47
               A. AUTHORITIES APPLYING INNOCENT OWNER
                  DEFENSE ARE WRONG. ................................................. 47
               B. THE PROCEEDINGS WERE UNJUST AND UNFAIR
                  ......................................... ................................................... 51
               PRAYER .................................................................................. 54
               CERTIFICATE OF SERVICE ................................................ 55
              CERTIFICATE OF COMPLIANCE ....................................... 56
               APPENDICES ......................................................................... 57
               TRIAL COURT ORDERS....................................................... A
                       ORDER GRANTING SUMMMARY JUDGMENT ....... A-1
                       ORDER DENYING MOTION FOR NEW TRIAL ......... A-2
                 MAJOR STATUTORY PROVISIONS ....................................B
                       TEX. CODE CRIM. PROC. ARTICLE 59.02 ................. B-1
                       TEX. CODE CRIM. PROC. ARTICLE 59.04 ................. B-2




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                                                         INDEX OF AUTHORITIES

Texas Supreme Court Cases
$56,700 v. State,
  730 S.W.2d 659 (Tex. 1987) ..................................................................... 26
Binur v. Jacobo,
  135 S.W.3d 646 (Tex. 2004). .................................................................... 43
Fairfield Ins. Co. v. Stephens Martin Paving, LP,
  246 S.W.3d 653 (Tex. 2008) ..................................................................... 50
Ford Motor Co. v. Ridgway,
  135 S.W.3d 598 (Tex. 2004) ..................................................................... 43
G & H Towing Co. v. Magee,
  347 S.W.3d 293 (Tex. 2011) (per curiam) ................................................ 24
Hidalgo v. Sur. Sav. & Loan Ass'n,
  462 S.W.2d 540 (Tex. 1971) ............................................................... 32, 41
Lehmann v. Har-Con Corp.,
  39 S.W.3d 191 (Tex. 2001) ....................................................................... 24
Randall v. Dallas Power & Light Co.,
  752 S.W.2d 4 (Tex. 1988) ......................................................................... 31
Sharp v. Stacy,
  535 S.W.2d 345 (Tex. 1976) ..................................................................... 50
State v. $ 281,420.00,
  312 S.W.3d 547 (Tex. 2010) ..................................................................... 16
State v. $90,235.00,
  390 S.W.3d 289 (Tex. 2013) ..................................................................... 26
State v. Silver Chevrolet Pickup,
  140 S.W.3d 691 (Tex. 2004) ............................................................... 13, 16
Uvalde Country Club v. Martin Linen Supply Co.,
  690 S.W.2d 884 (Tex. 1985) ..................................................................... 20


Texas Court of Criminal Appeals Cases
Caldarera v. State,
  504 S.W.2d 914 (Tex. Crim. App. 1974).................................................. 33
Crider v. State,
  352 S.W.3d 704 (Tex. Crim. App. 2011).................................................. 40
State v. Duarte,
  389 S.W.3d 349 (Tex. Crim. App. 2012)............................................ 38, 39

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Stoddard v. State,
  475 S.W.2d 744 (Tex. Crim. App. 1972)............................................ 37, 39


Texas Appellate Court Cases
$18,800 v. State,
  961 S.W.2d 257 (Tex. App.—Houston 1997, no writ) ............................. 44
$3,639 v. State,
  133 S.W.3d 698 (Tex. App.—Corpus Christi 2003, no pet.) ................... 20
$567.00 v. State,
  282 S.W.3d 244 (Tex. App.—Beaumont 2009, no pet.). ......................... 35
$6,453.00 v. State,
  63 S.W.3d 533 (Tex. App.—Waco 2001, no pet.).................................... 10
1988 Dodge Pickup v. State,
  No. 06-06-00011-CV, 2006 Tex. App. LEXIS 10551 (Tex. App.—
  Texarkana Dec. 12, 2006, no pet.) (mem. op.) ......................................... 10
2003 Ford Pickup v. State,
  No. 04-06-00036-CV, 2007 Tex. App. LEXIS 865 (Tex. App.—San
  Antonio Feb. 7, 2007, no pet.) (mem. op.)................................................ 27
Amrani-Khaldi v. State,
  575 S.W.2d 667 (Tex. Civ. App.—Corpus Christi 1978, no writ) ........... 26
Anderson v. Royce,
  624 S.W.2d 621 (Tex. App.—Houston 1981, writ ref’d n.r.e.) ................ 48
Audish v. Clajon Gas Co.,
  731 S.W.2d 665 (Tex. App.—Houston 1987, writ ref’d n.r.e.). ............... 33
Beal Bank v. Gilbert,
  417 S.W.3d 704 (Tex. App.—Dallas 2013, no pet.) ................................. 44
Belleza-Gonzalez v. Villa,
  57 S.W.3d 8 (Tex. App.--Houston 2001, no pet.)..................................... 20
Bochas v. State
  951 S.W.2d 64 (Tex. App.—Corpus Christi 1997, no writ) ..................... 48
Bryant v. Kimmons,
  430 S.W.2d 73 (Tex. Civ. App.—Austin [3rd Dist.] 1968, no writ). ....... 25
Dillard v. NCNB Tex. Nat’l Bank,
  815 S.W.2d 365 (Tex. App.—Austin [3rd Dist.] 1991, no writ) .............. 31
Feldman v. Mfrs. Hanover Mortg. Corp.,
  704 S.W.2d 422 (Tex. App.—Houston 1985, writ ref’d n.r.e.) ................ 41
Fisher v. State,
  803 S.W.2d 828 (Tex. App.—Dallas 1991, writ ref’d) ............................ 22

2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                         VI	  
Furr v. Furr,
  721 S.W.2d 565 (Tex. App.—Amarillo 1986, no writ) ............................ 21
Gaston v. State,
  641 S.W.2d 261 (Tex. App.—Houston 1982, no writ) ............................. 26
Gonzales v. State,
  761 S.W.2d 809 (Tex. App.—Austin [3rd Dist.] 1988, writ ref’d) .......... 40
Gray v. State,
  No. 03-99-00235-CV, 1999 Tex. App. LEXIS 8213 (Tex. App.—Austin
  [3rd Dist.] Nov. 4, 1999, no pet.) (mem. op., not designated for
  publication) ............................................................................................... 26
Harrell v. Hochderffer,
  345 S.W.3d 652 (Tex. App.—Austin [3rd Dist.] 2011, no pet.)............... 44
Klein & Assocs. Political Rels. v. Port Arthur Indep. Sch. Dist.,
  92 S.W.3d 889 (Tex. App.—Beaumont 2002, pet. denied) ...................... 46
Knox v. Donovan Lowery Ins. Agency,
  405 S.W.2d 160 (Tex. Civ. App.—Eastland 1966, no writ) ..................... 18
Manson v. State,
  609 S.W.2d 855 (Tex. Civ. App.--Texarkana 1980, no writ) ................... 14
Martinez v. State,
  893 S.W.2d 304 (Tex. App.—Corpus Christi 1995, no writ). .................. 13
McKissick v. State,
  209 S.W.3d 205 (Tex. App.—Houston 2006, pet. ref'd) .......................... 40
Mitchell v. State,
  819 S.W.2d 659 (Tex. App.—El Paso 1991, no writ) .............................. 26
One 1991 Chevrolet Blazer v. State,
  905 S.W.2d 443 (Tex. App.—Amarillo 1995, no writ). .......................... 18
One Car, 1996 Dodge X-Cab Truck v. State,
  122 S.W.3d 422 (Tex. App.—Beaumont 2003, no pet.) .......................... 28
One Ford Mustang v. State,
  231 S.W.3d 445 (Tex. App.—Waco 2007, no pet.).................................. 52
Roberts v. Padre Island Brewing Co.,
  28 S.W.3d 618 (Tex. App.—Corpus Christi 2000, pet. denied). .............. 22
State v. Lot 10, Pine Haven Estates,
  900 S.W.2d 400 (Tex. App.--Texarkana 1995, no writ) ........................... 12
State v. Park,
  820 S.W.2d 948 (Tex. App.—Texarkana 1991, no writ) ......................... 13
Windle v. Mary Kay, Inc.,
  No. 05-02-00252-CV, 2003 Tex. App. LEXIS 5594 (Tex. App.—Dallas
  July 1, 2003, pet. denied) (mem. op.) ....................................................... 22


2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                                           VII	  
United States Supreme Court Cases
Sgro v. United States,
  287 U.S. 206 (1932) .................................................................................. 40
Spinelli v. United States,
  393 U.S. 410 (1969) .................................................................................. 39
United States v. Bajakajian,
  524 U.S. 321 (1998) ............................................................................ 28, 29


United States Constitution
U.S. CONST. amend. IV .......................................................................... 39, 40
U.S. CONST. amend. VIII........................................................................ III, 28
U.S. CONST. amend. VIII.............................................................................. 28


Texas Court of Criminal Appeals Cases
TEX. CONST. art. I, § 21 .......................................................................... 49, 51
TEX. CONST. art. I, § 9 .................................................................................. 26
TEX. CONST. art. XVI, § 15........................................................................... 51


Texas Code of Criminal Procedure
TEX. CODE CRIM. PROC. ANN. art. 59.01(2) .................................................... 7
TEX. CODE CRIM. PROC. ANN. art. 59.01(6) .................................................... 8
TEX. CODE CRIM. PROC. ANN. art. 59.02(a) .................................................... 7
TEX. CODE CRIM. PROC. ANN. art. 59.02(c) ........................................... passim
TEX. CODE CRIM. PROC. ANN. art. 59.02(d) .................................................. 16
TEX. CODE CRIM. PROC. ANN. art. 59.02(h)(1)(C) .............................. 3, 26, 27
TEX. CODE CRIM. PROC. ANN. art. 59.04(a). ................................................. 10
TEX. CODE CRIM. PROC. ANN. art. 59.04(b). ..................................... 11, 14, 15
TEX. CODE CRIM. PROC. ANN. art. 59.04(c). ..................................... 11, 15, 20
TEX. CODE CRIM. PROC. ANN. art. 59.04(j)....................................... 11, 15, 16
TEX. CODE CRIM. PROC. ANN. art. 59.04(k) ............................................ 22, 23

Other Texas Statutes
TEX. FAM. CODE ANN. § 3.102 ..................................................................... 15
TEX. FAM. CODE ANN. § 3.201 ..................................................................... 48
TEX. FAM. CODE ANN. § 3.202 ......................................................... 47, 48, 49
TEX. FAM. CODE ANN. § 3.003 ..................................................................... 44
TEX. FAM. CODE ANN. § 3.406 ..................................................................... 51

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TEX. FAM. CODE ANN. § 7.001 ..................................................................... 51
TEX. PENAL CODE ANN. § 39.03 ................................................................... 53


Texas Rules of Civil Procedure
TEX. R. CIV. P. 114 ....................................................................................... 22
TEX. R. CIV. P. 115 ....................................................................................... 22
TEX. R. CIV. P. 116 ............................................................................. 2, 19, 22
TEX. R. CIV. P. 166a(c) .......................................................................... passim
TEX. R. CIV. P. 166a(f) ............................................................... 31, 34, 37, 38
TEX. R. CIV. P. 166a(i).................................................................................... 8
TEX. R. CIV. P. 198.3 .................................................................................... 25

Other Authorities
United States v. Wagner,
  989 F.2d 69, 75 (2d Cir. 1993).................................................................. 40
Don Clemer and Ann B. White, Texas District & County Attorneys
  Association, Guide to Asset Seizure and Forfeiture, at 31 (2010) 11, 15, 53
Patrick Henry, An Appeal to Arms, Address at the Virginia Convention
  (March 23, 1775) in Charles Morris, Famous Orators of the World and
  Their Famous Orations 21 (John C. Winston ed., 1902) ......................... 54




2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                                         IX	  
                                             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 are 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. (See Appendices A-1 and A-2 for order granting summary

judgment, and order denying motion for new trial.)




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                                                                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.




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                                                           STATEMENT OF FACTS

               Seizure. On the morning of March 6, 2014, LaToya Alcorn sits in a

modest wood framed house at 624 N. Wilcox in Rockdale, Texas, that she,

her two children, and her husband, Sedderick Alcorn, call home. (I C.R. 216,

225-27, 306) Before ending a visit with her mother, Norma Williams, and

heading off to work, a gang of law enforcement and wrecker service crews

invade the area of Mrs. Alcorn’s home in order to take her vehicles—a 2004

Dodge truck and 2000 Buick sedan. (I C.R. 225-26, 229-31, 310-12)

               Before the vehicles are taken, Mrs. Alcorn removes her personal

items, along with her kids’ medical papers, and signs an inventory form. (I

C.R. 225, 230-31, 310-12) Mrs. Alcorn drives both vehicles, and law

enforcement has seen her with the truck at a carwash (Id. at 226) Law

enforcement knows the vehicles are kept at 624 N. Wilcox. (Id. at 11, 217) It

also knows Mrs. Alcorn’s husband is in jail, where he has been for almost a

month. (Id. at 308) Except a one page warrant, Mrs. Alcorn receives nothing

to inform her of reasons for seizure or any rights she may have. (Id. at 228)

               Suit. Twelve days later, the Milam County District Attorney’s Office

files a notice of seizure and intended forfeiture (i.e., petition). (Id. at 5) The

State alleges the vehicles are contraband based on two events over 7 and 14

months old, as told by unnamed persons, and purportedly documented in the

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past on other officers’ unattached, unproduced videos. (Id. at 5-12, 216-217)

Deputy White’s affidavit attached to the petition is mostly a carbon copy of

his affidavit used to procure the seizure warrant the day before seizure. (Id.

at 10-11, 216-221)

               Both affidavits admit that Mrs. Alcorn’s husband is “the owner of the

vehicles.” (I C.R. 10, 217) They also admit that, although names on the

vehicles’ certificates of title have not been changed to reflect current

ownership, those listed—James Rackley and Gil Shamsher—have not “had

any claim to the vehicles in the previous year to present.” (Id.)

               Service. The State personally serves Sedderick Alcorn notice of suit

with citation in jail. (I C.R. 22) It personally serves James Rackley and Gill

Shamsher by citation also. (Id. at 20, 24) Yet, James Rackley informs the

State he has no interest in the Dodge truck. (Id. at 223) In 2013, Sedderick

purchased, and took possession of, the truck, and he (Rackley) delivered its

title and transfer papers to Mrs. Alcorn in a Baptist church parking lot. (Id.)

               Mrs. Alcorn is not served by any method, and answers on May 28,

2014—roughly 83 days from seizure (on March 6). (I C.R. 26)

               The State Moves for Judgment. In early July, James Rackley

stipulates to a default judgment. (Id. at 28) Then, the State moves for

summary judgment against Mrs. Alcorn and her husband, Sedderick, and


2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	     	             2	  	  
takes a default judgment against Gill Shamsher. (Id. at 35, 116-17) The State

obtains summary judgment against Sedderick based on deemed admissions.

(Id. at 36-38, 351)

               The State urges traditional and no-evidence motions against Mrs.

Alcorn. (I C.R. 38-43) The State claims Mrs. Alcorn lacks standing to raise

the innocent owner defense under Texas Code of Criminal Procedure Article

59.02(c) because she is a spouse. (Id. at 38, 39) The State also claims that,

even if she has standing, no evidence supports her ownership interest under

59.02(c) because those listed on certificate of title are presumed owners. (Id.

at 39, 40-42) And, it claims no evidence supports that Mrs. Alcorn had a

reasonable lack of knowledge required by 59.02(c). (Id. at 39, 42-43)

               Mrs. Alcorn Responds. Mrs. Alcorn quickly files a verified amended

answer, denying all allegations, denying that all conditions precedent have

been met, and asserting affirmative defenses: statute of limitations,

disproportional forfeiture, and the innocent owner defense of 59.02(h)(1)(C),

in addition to 59.02(c). (I C.R. 127) She also responds and objects to the

State’s motions, evidence, pleadings, discovery, and timing, and

demonstrates she is actually entitled to summary judgment. (Id. at 130-329)

               The State Amends. Afterward, 152 days following seizure, the State

amends its pleadings, adds Mrs. Alcorn as a potential owner or interest


2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	     	           3	  	  
holder of the vehicles, provides her address for service of process as 624 N.

Wilcox, and faxes a copy to her attorney. (I C.R. 331-32, 336)

               The Trial Court Grants Summary Judgment. After the hearing, the

trial court sends a letter recognizing Mrs. Alcorn’s standing, but indicates it

will grant the State’s motion. (I C.R. 347) Mrs. Alcorn again requests rulings

on responses and objections, and clarification of the court’s proposed

decision. (Id. at 349) Without responding to Mrs. Alcorn’s requests, the trial

court grants final summary judgment. (Id. at 351) (Appendix A-1)

               Mrs. Alcorn Moves for New Trial. Mrs. Alcorn then moves for new

trial, renews prior objections and requests, objects to the court’s actions and

grant of final summary judgment, and presents additional evidence she

would have presented had there been sufficient time for discovery. (I C.R.

Supp. 4-137)

               Mrs. Alcorn’s additional evidence proves the State’s valuation of the

Buick leaves $7,000 unaccounted for. (I C.R. Supp. 88, 90-91, 356-57) Plus,

evidence again confirms that the valuation also omits the value of rims on

the Buick and $2,000 Mrs. Alcorn put into it. (I C.R. 226) (I C.R. Supp. 88)

               Mrs. Alcorn again shows the Buick’s rims, possibly worth several

thousand dollars, disappeared from a highly secure impound area at the




2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                     4	  
sheriff’s office just after deputies seized the Buick. (I C.R. 226, 230-31) (I

C.R. Supp. 106-09) The State continues to remain silent.

               But, she also shows the truck rims were bought on February 4, 2014—

six months after the acts alleged by the State. (I C.R. 360)

               Finally, Mrs. Alcorn again informs the trial court about the hardships

facing both her and her attorney. (I C.R. Supp. 126-33) (I C.R. 173-80) She

again informs the trial court about the State’s untimely service, the State’s

hasty bombardment of discovery, and the State’s unreasonable immediacy in

moving for no-evidence summary judgment before there was adequate time

to investigate. (I C.R. Supp. 126-33) And, she again informs the trial court

of the State’s failure to disclose evidence—such as the information by James

Rackley, statements of other witnesses and parties, its method of estimating

value and the worth of other items, and information about the disappearance

of the Buick’s rims. (I C.R. 238-43)

               Even so, Mrs. Alcorn’s pleas fall on deaf hears. The trial court denies

her motion for new trial, and refuses to rule on her objections for the third

time. (I C.R. Supp. 138) (Appendix A-2)

               Mrs. Alcorn now appeals to this Court for relief.




2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                      5	  
                                                SUMMARY OF THE ARGUMENT

               There are three primary reasons the trial court should be overturned.

               First, the State failed to serve Mrs. Alcorn within the limitations

period, and no evidence supports an excuse for its failure to do so.

               Second, all issues, claims, and defenses were not decided; thus, the

trial court erred by granting full and final summary judgment. The State’s

motion was wholly based on Mrs. Alcorn’s inability to successfully assert

the innocent owner defense of Article 59.02(c), Texas Code of Criminal

Procedure. The State never sought to prove any other issue against Mrs.

Alcorn, and never mentioned her other defenses.

               Third, the State’s summary judgment evidence is incompetent and

insufficient because it is hearsay; based on conclusory opinions, second hand

knowledge, and unattached exhibits; and is merely part of the pleadings.

Neither pleadings nor proof justifies the amount of property seized. And, the

trial court had no discretion to ignore evidentiary objections.

                The trial court’s decision is wrong for other reasons: Fact issues were

raised as to other defenses. The case needed further development. The

proceedings were unfair. Authorities interpreting the innocent owner defense

are erroneous. And, summary judgment should not have been granted.



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                                                                       ARGUMENT


               The trial court erred by granting summary judgment to the State. This

Court should reverse and render judgment against the State on the statute of

limitations issue. Alternatively, this Court should remand on all grounds.


A. STANDARD OF REVIEW.

                A grant of summary judgment is reviewed de novo. Nall v. Plunkett,

404 S.W.3d 552, 555 (Tex. 2013).

               Laws are strictly construed against the forfeiture, especially when

forfeiture is to the sovereign and created by statute. 1


B. SUMMARY JUDGMENT STANDARDS.

               To obtain traditional summary judgment, a movant must prove with

competent evidence that no genuine issue of material fact exists, and it is

entitled to judgment as a matter law on issues expressly set out in the motion

or in an answer or any other response to the motion. TEX. R. CIV. P. 166a(c).

               Evidence favorable to the non-movant is taken as true, and every

reasonable inference is indulged, and any doubts resolved, in its favor.



1
 State v. Lot 10, Pine Haven Estates, 900 S.W.2d 400, 402 (Tex. App.—Texarkana
1995, no pet.), superseded by statute, as stated in State v. Silver Chevrolet Pickup, 140
S.W.3d 691, 693 (Tex. 2004); id. at 694 (noting strict construction of limitations statute).

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Martin v. Durden, 965 S.W.2d 562, 564 (Tex. App.—Houston 1997, no

pet.).

               Summary judgment may be defeated by raising a genuine issue of

material fact on each element of an affirmative defense. Brownlee v.

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

               For its no-evidence motion, the movant must specifically state the

elements as to which there is no evidence. TEX. R. CIV. P. 166a(i). The non-

movant must then produce more than a scintilla of evidence to raise a

genuine issue of material fact on those elements. Id. Jackson v. Fiesta Mart,

Inc., 979 S.W.2d 68, 70 (Tex. App.—Austin [3rd Dist.] 1998, no pet.). The

evidence must create more than a mere surmise or suspicion. Kindred v.

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

               The evidence is viewed in a light most favorable to the non-movant

and all contrary evidence and inferences are disregarded. Merrell Dow

Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Where

the court's judgment does not specify the ground relied upon for its ruling,

summary judgment must be affirmed if any theory advanced is meritorious.

Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

               As to standing, the pleadings are taken as true and construed in the

pleader’s favor. Pagosa Oil & Gas v. Marrs & Smith, 323 S.W.3d 203, 210


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(Tex. App.—El Paso 2010, pet. denied) (discussing Tex. Dept. of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226—28 (Tex. 2004)).




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I. ISSUE ONE RESTATED:
The trial court overlooked that forfeiture is barred by the limitations defense.


               The trial court erred by granting summary judgment for the State

because Mrs. Alcorn conclusively proved—or at least raised genuine issues

of material fact—that the affirmative defense of limitations bars forfeiture.

Brownlee, 665 S.W.2d at 112 (stating rule that summary judgment may be

defeated by raising fact issue on every element of an affirmative defense).


A. THE STATE DID NOT MEET THE 30-DAY LIMITATIONS PERIOD.

               “[T]he state shall commence proceedings under this section not later

than the 30th day after the date of the seizure.” TEX. CODE CRIM. PROC. art.

59.04(a). “The service of process must be within the limitations period.”

$6,453.00 v. State, 63 S.W.3d 533, 536 (Tex. App.—Waco 2001, no pet.).

Service of process is not waived by generally appearing in suit. $24,156.00

v. State, 247 S.W.3d 739, 747 (Tex. App.—Texarkana 2008, no pet.).




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1.             The State must serve owners, interest holders, and possessors
               within 30 days of seizure.

               Owners, interest holders, and those “in possession of the property at

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

and (j).” 2 Owners and interest holders of seized property must be served by

citation with notice of seizure and intended forfeiture (i.e., the petition) just

like in other civil cases. TEX. CODE CRIM. PROC. ANN. art. 59.04(b).

               “If the person in possession of the vehicle at the time of the seizure is

not the owner or the interest holder of the vehicle, notification shall be

provided to the possessor in the same manner specified for notification to an

owner or interest holder.” Id. § (c) (emphasis added). Moreover, one “in

possession of the property at the time it was seized shall be made a party to

the proceeding.” Id. § (j) (emphasis added). Thus, “when the possessor of

the vehicle is not the recorded registered owner… the possessor must be

separately served with citation.” 3




2
  Don Clemer and Ann B. White, Texas District & County Attorneys Association, Guide
to Asset Seizure and Forfeiture, at 31 (2010)(hereafter “TDCAA Guide”).
3
    Id. at 33.

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2.             The statute of limitations defense is strictly construed.

               The 30-day period is strictly construed and binding against the State.4

               In State v. Lot 10, Pine Haven Estates, the statute of limitations blocks

the State’s attempt to forfeit a cabin owned by Mr. and Mrs. Stark, and used

by Mr. Stark to commit indecency with a child. 900 S.W.2d 400, 401 (Tex.

App.—Texarkana 1995, no writ). 5 The cabin sits on Lot # 8, which the

State’s agents physically seize and mark off with yellow tape. Id. at 401.

Yet, the State’s petition accidently names Lot # 10 (instead of Lot # 8). Id.

               After 30 days, the Starks amend their answer to assert the limitations

defense. The State quickly amends to name Lot # 8. The Starks seek

summary judgment on limitations. The trial court grants the Starks’ motion

because the amendment is more than 30 days from seizure. Id. at 402.

               The State misleads no one, harms no third party rights, seizes the

correct property, and “promptly” corrects the misdesignation. Id. at 403

(Cornelius, C.J., concurring). And, all parties know full well which

property is being forfeited.
                Even so, the Starks win because “[t]here is no question… the State

 failed to meet the explicit requirements of the statute.” Id. at 402.

4
 $24,156.00, 247 S.W.3d at 743, 747 n.5; 1988 Dodge Pickup v. State, No. 06-06-00011-
CV, 2006 Tex. App. LEXIS 10551, at *5-6 (Tex. App.—Texarkana Dec. 12, 2006, no
pet.) (mem. op.) (59.04(a) “shall be strictly construed”).
5
  superseded in part by statute, as stated in Silver Chevrolet, 140 S.W.3d at 693-94
(noting general change in legislative intent, but not in strict construction of limitations).

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               Pine Haven differs from instances where the State files its petition

within the 30-day time frame, but fails to attach the officer’s affidavit. Id.

(discussing State v. Park, 820 S.W.2d 948 (Tex. App.—Texarkana 1991, no

writ). In such instance, if the officer’s affidavit exists, the petition may be

cured by amendment (adding the affidavit) because it is filed in the right

county, against the right property, on the right people, and within the

requisite time frame. Thus, the defect relates only to the pleadings.

               Pine Haven also differs from situations where the State fails to timely

file a lis pendens notice, as seen in State v. Silver Chevrolet Pickup, 140

S.W.3d 691, 694 (Tex. 2004). In Silver Chevrolet, the Court says that failure

to maintain strict compliance with a lis pendens provision is not necessarily

fatal. Id. at 694. Basically, a lis pendens notice protects outside third parties

who may later seek to purchase or take a security interest in the property;

yet, a statute of limitation protects those with existing property rights being

directly affected. Id. Thus, a lis pendens provision is only an internal timing

directive—“[u]nlike the thirty-day requirement in Pine Haven Estates, which

constituted a statute of limitations…” Id.

               In Martinez v. State, a trial court erroneously grants forfeiture of a

defendant's vehicle. 893 S.W.2d 304, 305 (Tex. App.—Corpus Christi 1995,

no writ). Although the seizure occurs in Kennedy County, the State files the


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forfeiture suit in Kleberg County, where it prosecutes the driver and stores

the vehicle. Later, the defendant files a plea to the jurisdiction due to the

State’s failure to file in the county of seizure as required by Article 59.04(b).

Id. The trial court denies the plea, and forfeits the vehicle after trial.

               The appeals court reverses because the mandatory “language of Art.

59.04 is very precise.” Id. at 305. The court must reverse and render for the

defendant because the State cannot transfer venue back to Kennedy County

after its failure to follow mandatory rules causes the 30-day period to run.

             Finally, in Manson v. State, Vickie Lynn Manson is in possession of a

Cadillac owned by Gary Long that is forfeited to the State after Vickie gets

caught driving it while carrying illegal drugs. 609 S.W.2d 855, 856 (Tex. Civ.

App.—Texarkana 1980, no writ) Vickie is personally served because she

had possession of the Cadillac at the time of seizure. Id. at 857. The State

cannot find Gary, and serves him through publication. Id. at 856. At trial,

Vickie objects to the way Gary’s interests are being handled. Id. at 856-57.

The trial court overrules her objections, and the appeals court affirms. Id.

               Basically, Vickie lacks standing to complain about errors concerning

Gary because she never claims to have “any interest in the vehicle, or . . .

any right to the continued possession of it.” Id. at 856. And, Vickie suffers

no personal harm since she was properly served. Id. at 857.


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3.             The State failed to satisfy the 30-day statute of limitations.

               Mrs. Alcorn’s possession of the vehicles at the time of seizure, and

her status as Sedderick’s wife are undisputed. As an owner, interest holder

and possessor of the vehicles at the time of seizure, the State had to serve her

by citation. TEX. CODE CRIM. PROC. ANN. art. 59.04(b), (c), (j).6

               Unlike Manson, Mrs. Alcorn was personally injured because she was

never personally served—and was not served by any method for 152 days. (I

C.R. 331-36) Unlike Manson, Mrs. Alcorn at the least had the continued

right of possession and use of both vehicles because she was a spouse.7

               But that’s not all. Mrs. Alcorn and officers signed inventory forms at

the time of seizure (which were in the State’s possession). (I C.R. 310-12)

The forms show she removed personal items, and her kids’ medical papers,

from the vehicles. (Id. at 225, 230-31) Sedderick was in jail at the time of

seizure—and had been for almost a month. (Id. at 308) The truck’s title and

transfer papers were delivered to Mrs. Alcorn—which the State knew of. (Id.

at 223) Mrs. Alcorn invested money in the Buick, drove both vehicles, and

an officer saw her in possession of the truck at a carwash. (Id. at 226)



6
    See TDCAA Guide, at 33 (stating “possessor must be separately served with citation.”)
7
 TEX. FAM. CODE ANN. §3.102 (stating community property subject to joint control). See
State v. Bassano, 827 S.W.2d 557, 60 (Tex. App.—Corpus Christi 1992, no pet.) (finding
defendant-husband to have “a possessory right of use and control of his wife's [car].”).

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               Thus, as in Silver Chevrolet, Mrs. Alcorn is a “person whose property

is the subject of the forfeiture proceeding.” 140 S.W.3d at 694. Even as a

possessor, her existing property rights are directly affected,8 thus, she is a

mandatory party. TEX. CODE CRIM. PROC. ANN. art. 59.04(j). See id. art.

59.02(d) (stating possessor retains “rights… during pendency of proceedings

under this chapter as if possession of the property had remained with [her].”)

               And, similar to the Starks in Pine Haven, Mrs. Alcorn could amend

her answer to assert the limitations defense because appearing in suit does

not waive service for purposes of that defense. $24,156.00, 247 S.W.3d at

747. In fact, Mrs. Alcorn’s case is even stronger than Pine Haven because

she was never properly served, she was not initially involved in suit, she did

not attempt to game the State, her statutory rights and ownership interests

were harmed, the mistake was more than a typo, the State’s amendment still

did not cure service, and its amendment came much later—152 days after

seizure. (I C.R. 331-36)

               Therefore, just like the Martinez court, this court should render

judgment for Mrs. Alcorn because she was (and still is) injured, the State did

not follow multiple provisions mandating service of process, and over 300

days have passed without proper service.


8
    See State v. $ 281,420.00, 312 S.W.3d 547, 551 (Tex. 2010) (discussing bailments).

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B. THE STATE DID NOT USE DUE DILIGENCE AS A MATTER OF LAW.

               When service occurs outside the limitations period, the State must

produce evidence that it used “due diligence in attempting to procure service

in a timely manner.” $6,453.00, 63 S.W.3d at 536.

               Before granting summary judgment, the trial court sent a letter

indicating reasons for its planned decision, which explained:

           First regarding Mr. Watson's argument that despite how the
           vehicles were titled, his client nevertheless has standing, I believe
           that argument to be well taken, as caselaw supports that position.
           As such, Ms. Alcorn was entitled to the requisite rights provided
           any holder of interest under Chapter 59.

           That leads in turn to the issues involving notice and the statute of
           limitations. I think the State proceeded in good faith with regard
           to noticing individuals with a known interest in the automobiles.
           Ms. Alcorn's name not being on any record title would appear to
           be at the root of the problem, and apparently the matter has been
           satisfactorily addressed. She has made an appearance, and I have
           found her to have standing.

(I C.R. 347-48) The trial court could not find that the State used diligence to

procure issuance and service for at least three reasons. First, the State

offered no evidence of diligence. Second, the State should have served Mrs.

Alcorn as a possessor regardless of ownership. Third, the State did not

continuously seek issuance or service.




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1.             The State offered no evidence of diligence, and the trial court
               erroneously assumed a valid excuse.

               Diligence is lacking as a matter of law when “no excuse is offered…”

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

Amarillo 1995, no writ). See Knox v. Donovan Lowery Ins. Agency, 405

S.W.2d 160-61 (Tex. Civ. App.—Eastland 1966, no writ) (eight-day-delay

lacked diligence where no explanation offered).

               The State never said, by affidavit or otherwise, that the absence of

Mrs. Alcorn’s name from certificate of title was the root of the problem. It

never responded at all. This was not the excuse offered by the State, but the

excuse assumed by the trial to relieve the State of its duty to offer an excuse.

               In any event, this assumed excuse is erroneous because it is

inconsistent with the evidence. The State twice admitted on oath that those

listed on the certificates of title (James Rackley and Gil Shamsher) had no

“claim to the vehicles in the previous year to present.” (I C.R. 2117, 220) It

admitted this before seizure, and again before suit was filed. (Id. at 218, 221)

               Thus, the State was not misled to believe those listed on certificates of

title were owners when it swore twice that those listed had no interest.

               The State also admitted twice on oath that the vehicles were owned by

Sedderick, in his exclusive possession, and stored at the Alcorn residence,


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624 N. Wilcox. (Id. at 217-18, 220-21) James Rackley, a neutral party,

stated he had no interest in the truck, that he transferred it to the Alcorns,

and he relayed this to the District Attorney. (Id. at 223) He stipulated to a

default judgment—before the State ever moved for summary judgment. (Id.

at 28) And, default judgment was taken against Gill Shamsher—before Mrs.

Alcorn amended her answer and filed a response. (Id. at 116-17)

                Again, the State cannot reasonably contend that people have no

ownership interest, and then say those people are presumed owners.

               The State was also put on notice that Mrs. Alcorn was an owner. She

was head of the household at 624 N. Wilcox (where the vehicles were

stored), she was in charge at the time of seizure, Sedderick was in jail, and

she removed personal items from the vehicles. (I C.R. 225, 308, 310-12,

314-15) Agents of the State have seen her in possession of the car, she called

in-laws over to witness the seizure, she signed the inventory form—using

the name Alcorn—, and easily available public records all show the State

had reason to know Mrs. Alcorn was Sedderick’s wife. (Id. at 225-26, 311,

298, 300) (I C.R. Supp. 123) The State has never said otherwise. And, the

State later acknowledged Mrs. Alcorn’s interest in its amended petition.

               Finally, ownership is irrelevant because Mrs. Alcorn was a possessor.




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2.             Certificate of Title and Ownership are Irrelevant as to Diligence.

               Mrs. Alcorn’s possession of the vehicles at the time they were seized

is undisputed. Therefore, Mrs. Alcorn had to be served anyway—even if the

State thought she had absolutely no interest—because she was “the person

in possession of the vehicle at the time of the seizure…” TEX. CODE CRIM.

PROC. ANN. art. 59.04(c) (emphasis added).

               Failure to follow the law is not diligent as a matter of law. $3,639 v.

State, 133 S.W.3d 698, 701-02 (Tex. App.—Corpus Christi 2003, no pet.)

(citing Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884,

885 (Tex. 1985) (stating “failure to affirmatively show strict compliance

with the Rules of Civil Procedure renders the attempted service of process

invalid and of no effect.”)).

               In Belleza-Gonzalez v. Villa, Attorney Gonzalez is not diligent as a

matter of law for relying on an oral agreement with a defendant to delay

service until medical documents lost in a burglary are found. 57 S.W.3d 8

(Tex. App.—Houston 2001, no pet.). Despite unfortunate circumstances, and

the defendant’s bait-and-switch tactics, Gonzalez is found to lack diligence

because he should have followed the requirements of Rule 11. Id. at 12.

               In Mrs. Alcorn’s case, the trial court incorrectly found good faith

because that is not the standard. Attorney Gonzalez’s oral agreement may


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have been in good faith, but was still insufficient to show diligence. Neither

the unfortunate circumstances, nor the defendant’s shrewd litigation tactics,

relieved Attorney Gonzalez from following the rules.

               The bottom line is that, when one chooses to play a game, it must play

by the rules. The State chose to file suit, and must be held accountable to the

rules governing that suit. The law says Mrs. Alcorn had to be served because

she was a possessor. Because the law says to serve possessors, beliefs about

ownership and title do not matter. Because the law is easily available and

clear, the State had no excuse for not following it. See Furr v. Furr, 721

S.W.2d 565, 566 (Tex. App.—Amarillo 1986, no writ) (finding “obvious

failure to read applicable, easily available rules” negates diligence).




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3.             The State used no continuous due diligence to seek timely service.

               The State must do more than offer reasons for failing to procure

timely service. It must show that it both requested issuance of citation, 9 and

continuously used “diligence to ‘seek’ service of process” 10 all the way “up

until the defendant was served.” 11 Diligence also requires the State “to

exhaust all the available alternatives to achieve proper service.” 12

               Also, when property owners are unknown, and no one is in possession

at the time of seizure, “the attorney representing the state shall file . . . an

affidavit stating that no person was in possession of the property at the time

it was seized and that the owner of the property is unknown.” TEX. CODE

CRIM. PROC. ANN. art. 59.04 (k) (also requiring citation by publication, and

compliance with Texas Rules of Civil Procedure 114, 115, and 116).

               Even if certificate of title caused the initial failure to request issuance,

the State’s duty was continuous. The State amended its petition to include

Mrs. Alcorn as a potential owner, interest holder, or other person with

9
 Fisher v. State, 803 S.W.2d 828, 830 (Tex. App.—Dallas 1991, writ ref’d) (citing Knox,
405 S.W.2d at 161).
10
     Belleza-Gonzalez, 57 S.W.3d at 12.
11
   $4,464,2002, Tex. App. LEXIS 6423, at *6 (citing $ 6,453, 63 S.W.3d at 536)). See
also Windle v. Mary Kay, Inc., No. 05-02-00252-CV, 2003 Tex. App. LEXIS 5594, at
*6-7 (Tex. App.—Dallas July 1, 2003, pet. denied) (mem. op.) (finding attorney’s
affidavit insufficient because merely providing excuses does not indicate “what efforts
counsel made to effectuate service”).
12
  Roberts v. Padre Island Brewing Co., 28 S.W.3d 618, 622 (Tex. App.—Corpus Christi
2000, pet. denied).

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interest—but then still did not seek issuance and service on her. And, then, it

refused to respond for failing to include and serve her previously.

                Lastly, if Mrs. Alcorn was not in possession, and the State truly did

not know who the owners were, the State was required to follow 59.04(k)’s

procedure: file an affidavit of unknown owners, obtain alternate service, and

request appointment of an attorney ad litem. None of this was done.

               Because the State never sought issuance of service for Mrs. Alcorn—

even after it noticed her interests—, it was not diligent as a matter of law.

Because the State never took any affirmative act to effectuate service on

Mrs. Alcorn, it was not diligent as a matter of law. Because it did not utilize

all methods for locating owners, it did not exhaust all available remedies.

                Again, the State chose when, where, how, and why to pursue this

forfeiture, was responsible for abiding by the rules governing it, and had a

continuous duty to fix and explain its failure(s) to follow the rules. Because

the State failed to do these things, the trial court could not have found

diligence as a matter of law.




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II. ISSUE TWO RESTATED:
Granting final summary judgment was inappropriate because issues, claims,
and defenses are unresolved.


               The State’s summary judgment motion was wholly based on Mrs.

Alcorn’s inability to successfully assert the innocent owner defense of

Article 59.02(c), Texas Code of Criminal Procedure. Because the State still

had to prove the issues of probable cause and contraband against Mrs.

Alcorn, and because it mentioned none of Mrs. Alcorn’s other defenses, full

and final summary judgment could not have been granted.

               A court cannot grant summary judgment on more issues than those

“expressly set out in the motion or in an answer or any other response.” TEX.

R. CIV. P. 166a(c). Courts will be reversed for granting summary judgment

on claims not addressed in the motion or granting more relief than a party is

entitled to. G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011)

(per curiam); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).

Even without objection, a court of appeals cannot “read between the lines or

infer from the pleadings any grounds for granting the summary judgment

other than those grounds expressly set forth before the trial court.” Nall v.

Plunkett, 404 S.W.3d 552, 555 (Tex. 2013).




2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	     	        24	  	  
1.             The State’s motion for summary judgment only challenges Mrs.
               Alcorn’s use of the innocent owner defense under 59.02(c).

               The first page of the State’s motion deals with procedural posture of

the case. (I C.R. 35-36) The second page contains the subsection, Requests

for Admissions, and only discusses the State’s “cause of action against

Respondent, Sedderick Alcorn.” (Id. at 36) Mrs. Alcorn is never mentioned,

and deemed admissions of Sedderick are inadmissible against her. 13

               Page three starts with subsection B, entitled Forfeitures, and gives full

argument for Summary Judgment Regarding Sedderick Alcorn. (Id. at 37)

               The next section concerns Summary Judgment Regarding LaToya

Alcorn, where the State challenges that she lacks standing to raise 59.02(c)’s

innocent owner defense; and that no-evidence supports her ownership

interest or reasonable lack of knowledge under 59.02(c). (Id. at 38-43).

               The next page lists evidence, and, essentially, has a boilerplate request

for forfeiture. (Id. at 44) The last page gives the hearing date. (Id. at 45)

               Thus, the judgment of forfeiture was improper because the State only

challenged Mrs. Alcorn’s ability “to raise the innocent owner defense” (id. at

40), and other issues, claims and defenses were not addressed.
13
  “The rule is firmly established that admissions directed to one defendant, whether
answered, or admitted by reason of failure to answer, are not evidence against other
defendants in the same case.” Bryant v. Kimmons, 430 S.W.2d 73, 76 (Tex. Civ. App.—
Austin [3rd Dist.] 1968, no writ). See TEX. R. CIV. P. 198.3 (stating deemed admission “is
conclusively established as to the party making the admission”).

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2.             Mrs. Alcorn put everything in issue.

               Within her verified answer (I C.R. 127-129), Mrs. Alcorn denied all

State allegations, denied that all conditions precedent were met, and asserted

affirmative defenses of statute of limitations, disproportional forfeiture, and

innocent owner defenses under 59.02(c) and (h)(1)(C). Thus, the State had

the burden to prove all of its allegations, and Mrs. Alcorn could defeat the

State’s claims by raising fact issues on each element of her defenses.


       a. The State must conclusively prove that probable cause existed to
          seize, and that the property is contraband subject to forfeiture.

               The State must conclusively prove (1) existence of probable cause for

seizure of the property, and (2) the property is forfeitable contraband. State

v. $90,235.00, 390 S.W.3d 289, 293 (Tex. 2013).14 Every appellate opinion

supporting the State’s summary judgment on the innocent owner defense

issue says the State still must prove probable cause and contraband. 15 But,

the State never moved for summary judgment on the issue of probable cause

14
     (citing $56,700 v. State, 730 S.W.2d 659, 661 (Tex. 1987), and Tex. Const. art. I, § 9))
15
  See Gray v. State, No. 03-99-00235-CV, 1999 Tex. App. LEXIS 8213, at *3-4 (Tex.
App.—Austin [3rd Dist.] Nov. 4, 1999, no pet.) (mem. op., not designated for
publication) (noting “State must prove … property seized is contraband . . . [and] show
probable cause”); Mitchell v. State, 819 S.W.2d 659, 660 (Tex. App.—El Paso 1991, no
writ) (noting “it was the state's burden to establish . . . a nexus between the property to be
forfeited and the statutorily-defined criminal activity.”); Gaston v. State, 641 S.W.2d 261,
263 (Tex. App.—Houston 1982, no writ) (State has “burden of showing the vehicle was
subject to forfeiture.”); Amrani-Khaldi v. State, 575 S.W.2d 667, 669-70 (Tex. Civ.
App.—Corpus Christi 1978, no writ) (stating, when owner files “verified answer denying
that the property is subject to forfeiture, ‘the burden is on the state to prove [otherwise]”).

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or contraband, thus, the trial court erred by granting final summary

judgment. (For more discussion on these issues, see, infra, at 31-40.)


       b. Mrs. Alcorn asserted the limitations defense.
               The State never mentioned this defense (discussed above at 10-23).


       c. Mrs. Alcorn claimed the defense under Article 59.02(h)(1)(C).

               Mrs. Alcorn asserted the elements of subsection 59.02(h)(1)(C). (I.

C.R. 127-28). Subsection (h)(1)(C) acts as a separate defense for an innocent

owner or interest holder who proves she “was not a party to the offense

giving rise to the forfeiture and that the contraband … was used or intended

to be used without [her] effective consent … in the commission of the

offense giving rise to the forfeiture.” 2003 Ford Pickup v. State, No. 04-06-

00036-CV, 2007 Tex. App. LEXIS 865, at *8 (Tex. App.—San Antonio

Feb. 7, 2007, no pet.) (mem. op.) (explaining and applying 59.02(h)).

               Subsection 59.04(h) was enacted in 2001, none of the State’s authority

addresses this subsection, and, on the issue of standing, the State only used

authority pre-dating its enactment. (For State’s authority, see, supra, at n.15)

               Mrs. Alcorn did not consent to any use of the vehicles that might

subject them to forfeiture. (I C.R. 127-129, 227) Mrs. Alcorn’s lack of

involvement in any offense giving rise to forfeiture is undisputed. Thus, she



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at least raised fact issues on this defense. Regardless, the State’s motion for

summary judgment did not address this defense.


       d. Mrs. Alcorn claimed the defense of disproportional forfeiture under
          the Eighth Amendment.

               The Excessive Fines Clause of the Eighth Amendment 16 prevents

forfeiture if the result would be grossly disproportional to the gravity of the

offense. United States v. Bajakajian, 524 U.S. 321, 324 (1998).

               In One Car, 1996 Dodge X-Cab Truck v. State, forfeiture of a truck is

disproportional. 122 S.W.3d 422, 423 (Tex. App.—Beaumont 2003, no

pet.). Police arrest Sondra Carroll pursuant to an outstanding warrant for

drug possession. Id. at 422. While inventorying the truck, police find two

straws containing trace amounts of methamphetamines. Id. at 423. Sondra

pleads guilty to state jail felony possession of a controlled substance, but

receives a misdemeanor jail sentence of 90 days. Id.

               The State petitions to forfeit the truck. Id. Sondra’s husband, Ray,

testifies that $14,000 of community funds were used to purchase the truck,

and estimates its value at the time of the offense to be around $11,000. Id.

Although title is in Sondra’s name, Ray uses the truck, and keeps it in good

condition. Id. Ray knows about Sondra’s drug problem, but not about the

16
     U.S. Const. amend. VIII.


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truck’s use in buying drugs. Id. Even so, the trial court grants forfeiture.

                Applying Bajakajian, supra, the appeals court reverses, finding

forfeiture to be grossly disproportionate to the gravity of the offense

committed. First, misdemeanor sentences are inconsistent with forfeiture,

but the facts do not support forfeiture even if Sondra had received a felony

sentence. Id. at 427. Police discover only a small amount of drugs. No

evidence shows the truck’s use in selling drugs. No evidence suggests the

truck’s use in any other offense except speeding. Id. at 427-28.

               In Mrs. Alcorn’s case, the State’s evidence (assuming its truth and

admissibility) showed only one bad act for each vehicle. (I C.R. 10-11) The

State mentioned Sedderick being charged with delivery of a controlled

substance in a drug free zone, but offered no evidence that that charge

supports forfeiture in this case.

               For instance, the two alleged acts occur 14 and 7 months before

seizure; yet, nothing described when Sedderick was charged, or that any

charge arose from acts alleged in the forfeiture petition. (Id.) No charging

document was attached. No conviction resulted that we know of.

               No quantity of drugs or purchase amount(s) were specified. Other

than hearsay, no evidence of drugs was given. No large amounts of cash

were found anywhere in or near the vehicles, property or home. No drugs


2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                   29	  
were found anywhere in or near the vehicles, property or home. No

subsequent acts involving drugs were illustrated.

               The State also seized two different sets of rims that were not alleged

to be involved in, or acquired by, any illegal act. (I C.R. 226, 230-31) (I C.R.

Supp. 106-09) Yet, the State provided no evidence of damages it incurred, or

its method for calculating value.

               Mrs. Alcorn was not involved in any wrongdoing, and has no

knowledge of illegal acts committed by Sedderick. (I C.R. 227) She used

both vehicles, invested her own money in the car, has no past convictions,

and explained that the rims’ prices were well over values given by the State.

(Id. at 226) She also maintains employment, works extra shifts, and provided

specific instances about Sedderick’s past employment. (Id. at 226-27).

               Thus, genuine issues of material fact exist as to whether the State has

sought to forfeit more property than what it is entitled to, and whether the

amount forfeited should be reduced based on the circumstances.

                Regardless, the State never addressed this defense.




2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                  30	  
III. ISSUE THREE RESTATED:
The trial court’s decision to grant summary judgment in favor of the State is
not supported by the evidence.



               The trial court erroneously granted summary judgment because the

State’s evidence and pleadings are incompetent, insufficient, and defective;

and because evidence creates genuine issues of material fact.

1.             The trial court erred by granting summary judgment for the State
               because the evidence is insufficient and incompetent.

               Assuming the State sought to prove the issues of probable cause and

contraband against Mrs. Alcorn, the State’s evidence cannot support

summary judgment as a matter of law because it is hearsay, inconsistent,

unverifiable, and not based on personal knowledge.

               Affidavits supporting summary judgment must set forth facts that are

 admissible in evidence, not hearsay, and based on personal knowledge and

 within the competence of the affiant. TEX. R. CIV. P. 166a(f). Evidence also

 cannot be conflicting, or contain statements raising a fact issue. TEX. R.

 CIV. P. 166a(c) (“free from contradiction”). 17




17
  See Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex. 1988) (conflict
between affidavit and deposition); Dillard v. NCNB Tex. Nat’l Bank, 815 S.W.2d 365,
360-61 (Tex. App.—Austin [3rd Dist.] 1991, no writ) (affidavit’s statements contradict),

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               An affidavit relying on facts contained only in a missing exhibit is

substantively defective.18 If those relied upon facts are supplied elsewhere in

the summary judgment evidence, the defect is one of form.19

               Finally, pleadings “are not evidence,” 20 and courts “refuse to regard

pleadings, even if sworn, as summary judgment evidence.” 21




disapproved on other grounds, Amberboy v. Societe de Banque Privee, 831 S.W.2d 793
(Tex. 1992).
18
   Brown v. Brown, 145 S.W.3d 745, 752 (Tex. App.—Dallas 2004, pet. denied); Galindo
v. Dean, 69 S.W.3d 623, 627 (Tex. App.—Eastland 2002, no pet.) (medical records);
Natural Gas Clearinghouse v. Midgard Energy Co., 23 S.W.3d 372, 380 (Tex. App.—
Amarillo 2000, pet. denied) (affidavit of damages expert referencing information
contained on computer disk); Mincron SBC Corp. v. Worldcom, Inc., 994 S.W.2d 785,
795-96 (Tex. App.—Houston 1999, no pet.) (invoices for disputed damages); Gorrell v.
Texas Utils. Elec. Co., 915 S.W.2d 55, 60 (Tex. App.—Fort Worth 1995, writ denied)
(sworn or certified copies of exhibits); Ceballos v. El Paso Health Care Sys., 881 S.W.2d
439, 445 (Tex. App.—El Paso 1994, writ denied) (medical records supporting medical
opinions); see also Sorrells v. Giberson, 780 S.W.2d 936, 938 (Tex. App.—Austin [3rd
Dist.] 1989, writ denied) (note not attached to affidavit failing to prove elements of suit).
19
  Mathis v. Bocell, 982 S.W.2d 52, 60 (Tex. App.—Houston 1998, no pet.); Watts v.
Hermann Hosp., 962 S.W.2d 102, 105 (Tex. App.—Houston 1997, no pet.); Sunsinger v.
Perez, 16 S.W.3d 469, 500-01 (Tex. App.—Beaumont 2000, pet. denied) (medical
records); Martin v. Durden, 965 S.W.2d 562, 565 (Tex. App.—Houston 1997, pet.
denied); Noriega v. Mireles, 925 S.W.2d 261, 265 (Tex. App.—Corpus Christi 1996, writ
denied).
20
     Hidalgo v. Sur. Sav. & Loan Ass'n, 462 S.W.2d 540, 543 (Tex. 1971)
21
     Id. at 545.

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       a. Motion to strike affidavit of Deputy White because it is based on
          unverifiable hearsay, and on facts outside his personal knowledge.

               Mrs. Alcorn moved to strike, and specifically objected to, Deputy

 White’s affidavit due to it being hearsay, inconsistent, unverifiable, and not

 based on personal knowledge. (I C.R. 161-64, 349, & Supp. 17-28, 134)

               Initially, Deputy White’s affidavit states:

               Your Affiant was informed that on more than one occasion
               illegal narcotics have been purchased from the owner of the
               vehicles while the subject was inside of the vehicles.

(I C.R. 10, 208). “Affiant was informed”—illustrates classic hearsay. The

facts are declared from an out of court declarant who experienced them

separately, at another point in time. 22 Thus, the facts are outside Deputy

White’s personal knowledge. This is just like Audish v. Clajon Gas Co.,

where the same is said for statements like, “I was advised that,” “I am

informed that,” and “I was told that.” 731 S.W.2d 665, 671 (Tex. App.—

Houston 1987, writ ref’d n.r.e.).

               Neither the affiant nor the unknown-unverifiable-declarant-“subject”

say when, where, or how many occasions. 23 And, the State argued on



22
  Caldarera v. State, 504 S.W.2d 914, 915 (Tex. Crim. App. 1974) (finding affidavit
conclusory and insufficient under Fourth Amendment where officer stated that person
provided facts officer believed true based on others’ statements and experience).
23
  TEX. R. CIV. P. 166a(c) (proof must be clear, positive, direct, not contradictory, and
readily controvertible)

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summary judgment that the Alcorns were not owners; thus, to whom does

owner refer? 24

               Next, the affidavit mainly discusses two instances that do not involve

Deputy White—that “were documented on video.” (I C.R. 208). Others

make the alleged videos. Others make the alleged identifications. Others

know the underlying facts and circumstances. Therefore, Deputy White’s

affidavit is improper for the same reasons already mentioned.25

               Deputy White never says whether he actually watched the videos.

Although the instances “were documented,” they occur 14 and 7 months

before the affidavit’s creation—so are they still documented? If still existing,

are the videos clear? If so, why was no arrest made based on the video(s)?


       b. Motion to strike affidavit because it makes unsubstantiated legal
          and factual conclusions

                     The State’s evidence is legally and factually insufficient to support

that the vehicles are proceeds, or acquired with proceeds, from illegal drug

sales. Legal and factual conclusions, opinions, and subjective beliefs

unsupported by evidence are substantive defects that require no objection.26



24
     Id.
25
     Id. (c), (f), and improper predicate.
26
  Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.—Houston 2000,
no pet.) (legal conclusions); Rizkallah v. Conner, 952 S.W.2d 580, 586-88 (Tex. App.—

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                     Deputy White’s affidavit supporting seizure and forfeiture declares:

               Affiant believes, based on training and experience, that the
               above described vehicles were obtained through the sale of
               illegal narcotics

(I C.R. 209).

               In $567.00 v. State, similar allegations are found factually insufficient

to support forfeiture—after a full trial. 282 S.W.3d 244 (Tex. App.—

Beaumont 2009, no pet.). In $567.00, the Beaumont Court first finds legally

sufficient evidence to support the judgment because the evidence shows:

defendant made parole in January of 2003 for a drug delivery charge; sold

drugs to law enforcement at least three times within six or seven months

from making parole; sold “twelve rocks of cocain” to law enforcement; was

arrested based on a warrant for those drug sales; and the property was seized

at the time of arrest. $567.00, 282 S.W.3d at 248. Moreover, investigation

and undercover surveillance show that defendant had no source of income or

employment other than selling drugs. Defendant also bought the vehicle with

small cash bills, and then had the vehicle placed in someone else’s name. Id.

               Yet, all that evidence is still not factually sufficient. Id. at 248-50.

The property seized at the time of the defendant's arrest is not found in

proximity to drugs or drug paraphernalia. Id. at 249. Despite the defendant’s

Houston 1997, no writ) (beliefs and conclusions); Harley-Davidson Motor Co. v. Young,
720 S.W.2d 211, 213 (Tex. App.—Houston 1986, no writ) (opinions and conclusions)

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drug trafficking in the past, no evidence demonstrates him to have done so

recently. Id. There is also no inordinately large sum of money involved.

               And, although video surveillance exists, “there is no evidence of how

long the surveillance was conducted, how extensive it was, or how close in

time it was to either the arrest or the purchase of the vehicle.” Id. “The

record does not reflect how much time elapsed between the last observed

drug trafficking and [defendant’s] arrest.” Id. Even though defendant could

not explain why he had a joint account with another person, who provided

him money, the State failed to elicit evidence that the arrangement involved

drug trafficking. Id. at 250.

                     Finally, the opinion makes clear: the State cannot simply assume

that property is proceeds, or is acquired with proceeds, of drug sales because

a defendant sold drugs in the past. Id. Nor can it simply say: “because

[defendant] is a drug dealer any property he acquires is contraband.” Id.

               In Mrs. Alcorn’s case, the only competent evidence that even might

potentially exist based on the State’s affidavit is video evidence of two

instances. Even with that video documentation, assuming it admissible on

every point in contention, the State still only has two instances—one for

each vehicle—of conduct constituting a commission of crime.




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               Again, if other drug transactions were so likely to reoccur, why did

only one act per vehicle occur in over one year’s time?

               But, the vehicles were also owned before the alleged drug sales even

took place. Nowhere does the affidavit provide competent proof of

Sedderick’s finances or how the vehicles are purchased or why it is believed

Sedderick bought the vehicles with proceeds from sales of narcotics or why

one single transaction would produce sufficient income to purchase a

vehicle—along with all the accessories that were on the vehicle.

               Further, the affiant cannot base his knowledge on facts outside his

knowledge. 27 Deputy White’s statement assumes—quite tenuously—that

Sedderick purchased vehicles with drug sale money because Sedderick

(allegedly) sold drugs on only two independent and distanced occasions. 28

               Next, Deputy White states:

               and to further commit the violations of the Manufacture/
               Delivery of a Controlled Substance…

(I C.R. 209). Again, assuming the videos’ admissibility, there is no hint that,

at this point, the State will be able to produce competent evidence Sedderick

committed more than one offense for each vehicle. If the State cannot



27
     See TEX. R. CIV. P. 166a(c), (f).
28
  Stoddard v. State, 475 S.W.2d 744, 747 (Tex. Crim. App. 1972) (finding conclusion of
affiants insufficient because affidavit did not “indicate the underlying circumstances”).

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validly speculate that Sedderick delivered contraband more than once per

vehicle in the span of time involved, it cannot jump to the conclusion that

the vehicles would be used “to further commit the violations…” Evidence

rules do not allow such speculation, or this type of reasoning—that “because

he did it in the past, he would do it again.” 29


       c. The State’s affidavit does not conclusively establish probable cause.

               Without seeing the videos, Deputy White could not attest to their

reliability, and without attaching them, could not prove their reliability to the

court. Deputy White never gave information corroborating the reliability or

trustworthiness of any informant. Instead, Deputy White is relying on the

validity of videos based on information relayed by another. It is as if “[t]he

present affidavit is based almost entirely on hearsay information supplied by

a first-time confidential informant.” State v. Duarte, 389 S.W.3d 349, 355

(Tex. Crim. App. 2012).

               There is no “track record” provided for this (or these) informant(s); no

statement against penal interest; no consistency with other tips; no predictive

information. Duarte, 389 S.W.3d at 356. Is this informant a “criminal

milieu” looking for quid pro quo, or average citizen Joe? Id. at 357.



29
     See TEX. R. CIV. P. 166a(f); TEX. R. EVID. 404.

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               The informant’s purported first hand knowledge is still insufficient.

This Court may ask the same questions asked by the Court of Criminal

Appeals in Duarte, “How much cocaine did he possess? A couple of lines

worth, laid out … and fully consumed? A kilo? Where did Mr. [Alcorn]

have the cocaine? In the pocket of his jeans? Hidden in the [glove box]?

Was it piled on the [console] being weighed and packaged for sale?” Id.

               Under the Fourth Amendment30—a less stringent test31 than summary

judgment—an “unsupported assertion or belief of the officer does not satisfy

the requirement of probable cause.” 32 Warrant affidavits must be

“sufficiently clear that the affiants spoke from personal knowledge, rather

than mere belief, or from knowledge gained through hearsay…” 33

               The fact that another officer is mentioned does not corroborate the

reliability of this affidavit—but detracts from it. If another officer is seeing,

feeling, smelling, hearing, sensing, the things attested to, there should be

more detail, not less. Officers are trained to spot the detail.

               Knowledge of these details is essential because the connection

between property to be forfeited and criminal activity must be “substantial.”


30
     U.S. Const. amend. IV.
31
     Duarte, 389 S.W.3d at 354 (“nondemanding standard”).
32
     Spinelli v. United States, 393 U.S. 410, 423 (1969) (White, J., concurring)
33
     Stoddard, 475 S.W.2d at 748.

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Gray v. State, No. 03-99-00235-CV, 1999 Tex. App. LEXIS 8213, at *4

(Tex. App.—Austin [3rd Dist.] Nov. 4, 1999, no pet.) (mem. op., not

designated for publication).

               Because the affidavit describes acts over 14 and 7 months old, the

information relied upon in the affidavit is also stale. McKissick v. State, 209

S.W.3d 205, 214 (Tex. App.—Houston 2006, pet. ref'd) (stating facts in

affidavit must not have become stale when the magistrate issues warrant).

               The facts described in the affidavit and the time of the warrant’s

issuance are not “closely related.” Sgro v. United States, 287 U.S. 206, 210

(1932); United States v. Wagner, 989 F.2d 69, 75 (2d Cir. 1993) (holding

information stale after 6-week delay from one-time drug buy to issuance).

               The length of time calls into question the memory of the declarants

and the current availability of evidence for a “single, non-recurring crime.”

Crider v. State, 352 S.W.3d 704, 708 (Tex. Crim. App. 2011). One act per

vehicle cannot maintain probable cause as an “on-going” crime. Gonzales v.

State, 761 S.W.2d 809, 813 (Tex. App.—Austin [3rd Dist.] 1988, writ ref’d).

               Therefore, the State’s affidavit does not even satisfy the Fourth

Amendment—or at least raises fact questions as to that issue.




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       d. The State’s pleadings, even when sworn, cannot support its own
          summary judgment.

               The State’s pleadings were improperly used as evidence. “The law is

 well settled that pleadings do not constitute proper summary judgment

 proof even if they are sworn.”34 Therefore, the State improperly uses the

 affidavit from its pleadings to support summary judgment.


       e. Deemed Admissions of others are inadmissible against Mrs. Alcorn.
          Again, deemed admissions of Sedderick are inadmissible against

Mrs. Alcorn. (See earlier discussion at p. 25 & n.13.)




34
 Feldman v. Mfrs. Hanover Mortg. Corp., 704 S.W.2d 422, 423-24 (Tex. App.—
Houston 1985, writ ref’d n.r.e.) (citing Hidalgo, 462 S.W.2d at 540).

2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	               41	  
2.             The State neither raised nor proved a claim that either set of rims
               constitutes contraband.

               The State never once alleged in its pleadings or its evidence that either

set of rims on the vehicles was used in the commission of an act giving rise

to forfeiture. Neither affidavit mentioned rims or other personalty. (I C.R.

216-221) The Schedule A listing the property seized for forfeiture only

describes the vehicles. (Id. at 65) Schedule A describes the truck’s value as

$6,000, and the car’s value as $3,000. (Id.) Mrs. Alcorn’s evidence refutes

the State’s seizure and its estimated values. (Id. at 226) (See, infra, at 52-53)

               As such, genuine issues of material fact exist to prevent summary

judgment because, again, the State has the burden to allege and conclusively

prove that the property seized and forfeited is contraband.


3.             The State’s no-evidence motions erroneously employ conflicting
               evidence, and genuine issues of material fact do exist.


               The State improperly used evidence to prove its no evidence points. It

used certificate of title and Mrs. Alcorn’s interrogatory answer to argue no

evidence supported her ownership or interest in the vehicles. It used Mrs.

Alcorn’s answer to an objectionable production request to assert that no

evidence supported her reasonable lack of knowledge that Sedderick

committed the alleged violations.

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               Lastly, genuine issues of material fact exist as to both claims—many

of which are created by the State’s own evidence.

               Evidence attached to a no-evidence motion for summary judgment

 “should not be considered unless it creates a fact question.” Binur v.

 Jacobo, 135 S.W.3d 646, 651 (Tex. 2004). If evidence is conflicting or

 raises a fact issue, it will not support a summary judgment.35 And,

 “circumstantial evidence may be used to establish any material fact.” 36

               As to ownership and interest, the State’s affidavits state under oath

that Sedderick Alcorn is owner of the vehicles, and that James Rackley and

Gill Shamsher have had no claim “in the previous year to present.” (I C.R.

10) It then argued the exact opposite in order to obtain summary judgment.

               Yet, the State’s affidavits, James Rackley’s affidavit, and both default

judgments are conclusive against the State on this point. The State even

admits “certificate of title is not conclusive of ownership.” (I C.R. 34)

               Mrs. Alcorn’s interrogatory answer used by the State said she has

“both a community property and monetary interest in the vehicles at issue.”

(I C.R. 41) “It is presumed that property possessed by either spouse during




35
     See TEX. R. CIV. P. 166a(c), supra, at 31 & n.17.
36
     Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).

2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                     43	  
marriage is community property” 37—which the State must rebut “by clear

and convincing evidence.” 38 And, Mrs. Alcorn’s monetary interest raises

separate fact issues, especially since her affidavit states that she put money

into the Buick—to which the State does not respond. (Id. at 226)

               Thus, the trial court illogically found no evidence of Mrs. Alcorn’s

ownership and interest, especially after it found that she had standing, and

“was entitled to the requisite rights provided any holder of interest under

Chapter 59.” (Id. at 349)

               As to reasonable lack of knowledge, Mrs. Alcorn’s response to the

State’s request for production was that she “was unaware of, and does not

believe in, [the vehicles’] use in furtherance of crime.” (Id. at 43) The State

admits this is an affirmative middle ground “in between” two (non-summary

judgment) opinions used to justify its position. (Id.) 39 Being a middle

ground means some evidence existed.

               Mrs. Alcorn directly exclaims her disbelief in the State’s allegations.

(I C.R. 227) Mrs. Alcorn confirms that she did not consent to any illegal act,

37
  Beal Bank v. Gilbert, 417 S.W.3d 704, 709 (Tex. App.—Dallas 2013, no pet.) (citing
TEX. FAM. CODE ANN. § 3.003(a); Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011)
(per curiam)).
38
  TEX. FAM. CODE ANN. § 3.003(b); see Harrell v. Hochderffer, 345 S.W.3d 652, 656,
and 657-660 (Tex. App.—Austin [3rd Dist.] 2011, no pet.) (discussing community
property presumption concerning personal injury awards claim on summary judgment).
39
   Mitchell, 819 S.W.2d at 661 & n.1 (testimony, exhibits, and findings of fact); $18,800
v. State, 961 S.W.2d 257, 261 (Tex. App.—Houston 1997, no writ) (“at trial”).

2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                     44	  
no drugs were sold using her vehicles; no drugs were in her home; no drugs

were sold around her home or using her home. (Id.)

               Other fact questions are created by circumstantial evidence. Only one

instance occurred for each vehicle. (Id. at 10) Only two instances occurred in

over a year’s time. (Id.) Mrs. Alcorn was not present or involved—which

was in the State’s interest to allege. Both instances occurred away from Mrs.

Alcorn’s home. (Id.) Mrs. Alcorn worked, took whatever job times/

schedules were available, and Mrs. Alcorn’s mother-in-law baby-sat because

she and Sedderick were at work. (Id. at 227) Therefore, Mrs. Alcorn was not

around to know what was going on.

               Moreover, no evidence suggests law enforcement ever notified Mrs.

Alcorn that her husband was committing any crime, or that her vehicles were

being used or intended to be used to commit crime. The covert investigations

and undercover surveillance create some evidence about why Mrs. Alcorn

did not perceive any police presence, and the clandestine nature of police

operations makes her lack of perception reasonable. (Id. at 10-11)

               Mrs. Alcorn also believes that Sedderick worked at a temp agency, his

family’s lawn business, and odd jobs. (Id. at 226-27) She also believed

Sedderick made money by financing cars, trading property, and fixing things

up and reselling them. (Id.) Sedderick always paid bills he was responsible


2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                 45	  
for, and always had reasonable explanations for where he got money. (Id. at

227) What Sedderick said is admissible due to its effect on the listener.40

               Mrs. Alcorn’s knowledge of her husband’s trouble with drugs in the

past does not make her lack of knowledge unreasonable.41 Even if it might

prove harmful on cross-examination, it certainly does not prevent

formulation of a genuine issue of material fact. Whether Mrs. Alcorn is

being truthful is an issue of credibility—for the fact finder to decide at a

hearing. Whether her belief is reasonable is also a question of fact.

               The trial court should not have decided the issue in favor of the State

because it thought what Mrs. Alcorn said did “not ring true.” (I. C.R. 348)

               The trial court erroneously made this assumption because it was

supposed to view the evidence in a light most favorable to the non-movant,

Mrs. Alcorn.




40
   See Klein & Assocs. Political Rels. v. Port Arthur Indep. Sch. Dist., 92 S.W.3d 889,
894–895 (Tex. App.—Beaumont 2002, pet. denied) (in defamation action, affidavits
stating what affiants were told admissible in summary judgment to show affiants’ belief).
41
   $ 567.00, 282 S.W.3d at 249-50 (finding State’s use of defendant’s past drug
trafficking insufficient to prove issue of contraband).

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IV. REMAINING ISSUES RESTATED:
Summary judgment should not have been granted to the State.



               The trial court erred by granting the State’s summary judgment

because authorities applying the innocent owner defense are erroneous, and

the overall proceedings were unfair.


A. AUTHORITIES APPLYING INNOCENT OWNER DEFENSE ARE WRONG.

               In Amrani-Khaldi, the Corpus Christi Court of Appeals refuses to

acknowledge a spouse’s ability to assert the innocent owner defense in order

to protect community property from forfeiture. 575 S.W.2d 667, 668 (Tex.

Civ. App.—Corpus Christi 1978, no writ). The Amrani-Khaldi Court’s

decision stems from language in § 5.61 [now §3.202], Texas Family Code,

expressing that community property subject to a spouse's sole or joint

management, control and disposition is subject to the liabilities incurred by

him or her before or during marriage. 575 S.W.2d at 668.

               Based on this Family Code provision, the Court formulates 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. None of the few appellate cases referencing Amrani-Khaldi’s


2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                47	  
reasoning 42 fully analyze it, and others do so unnecessarily.43

               Time has come for Amrani-Khaldi to be openly discussed, fully

dissected, and subsequently overruled.

               First, forfeiture suits are “in rem” and are not suits against persons—

as the State almost always contends. (I C.R. 36, 38) Suits that are in rem are

only suits against property. There is no personal liability. Thus, forfeiture

suits are not against a spouse, so no “liabilities [are] incurred by the spouse

before or during marriage.” TEX. FAM. CODE ANN. §3.202 (c).

               Second, § 3.202 does not create liabilities, but merely codifies

preexisting marital property law in Texas.44 Thus, although § 3.202 might

allow one’s estate to be obligated, it does not actually obligate forfeiture of a

spouse’s community estate. In fact, unless § 3.202 (c) permits liability, a

spouse cannot unilaterally obligate community property. TEX. FAM. CODE

ANN. §3.201(b). Amrandi-Khaldi correctly states the rule: “one spouse can

obligate…”; yet, incorrectly applies it by assuming an obligation simply



42
 Gray, 1999 Tex. App. LEXIS 8213, at *5-7; Bochas v. State 951 S.W.2d 64 (Tex.
App.—Corpus Christi 1997, no writ); Gaston, 641 S.W.2d at 264.
43
  The Gray claimant was a party to the offense, and not innocent. 1999 Tex. App. LEXIS
8213, at *5-6. Bochas references rule in a footnote, and permits appeal anyway. 951
S.W.2d at 67 n.2.
44
   E.g., Anderson v. Royce, 624 S.W.2d 621, 622–623 (Tex. App.—Houston 1981, writ
ref’d n.r.e.) (holding 4-year statute of limitation (for written contracts) controlled against
debtor’s spouse, rather than two-year statute, which would have applied if spouse’s
liability had been created by TEX. FAM. CODE ANN. § 5.61 (recodified as §  3.202)).

2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                          48	  
because one is allowed.

               Next, just because marital property law permits community debt, does

not mean it requires or approves of community debt, or that other laws are

incapable of adding protection. Even if §3.202 allows forfeiture, that does

not prevent the forfeiture statute itself from providing extra protection—

which it does via distinct innocent owner defenses. TEX. CODE CRIM. PROC.

arts. 59.02(c)(1)-(2), (h). Amrani-Khaldi simply ignores this. It jumps from

the premise that the Family Code permits obligation in some cases, to the

conclusion that obligation must be required in all cases—despite explicit

protections elsewhere saying otherwise.

               This reasoning also violates and completely ignores Article I, § 21, of

the Texas Constitution, which declares “No conviction shall work

corruption of blood, or forfeiture of estate…” Yet, that is exactly what is

happening. Mrs. Alcorn’s entire community property and monetary

contributions may be forfeited, along with all rights to defend her property

against forfeiture, merely because the other spouse (allegedly) broke the law.

               The Bochas Court nods to the rule “well established in equity that a

person who in good faith makes improvements upon property owned by

another is entitled to compensation therefor.” 951 S.W.2d at 67 n.2 (quoting

Sharp v. Stacy, 535 S.W.2d 345, 351 (Tex. 1976)).


2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                    49	  
               Yet, the above cases encourage the State to lie in wait—say, 14

months—after an offense is committed in order to let a spouse pay off the

property’s liens held by banks or merchants, or allow time for making

improvements. Once paid off, the State will sweep in to take the property

free and clear of any innocent owner defense possibly asserted by the

lienholder, and or obtain a greater value due to the improvements.

               The State obtains a windfall while the spouse faces a troika of

penalties: once by paying for the lien or improvement, second by losing the

property, and third by losing her equity—all for doing nothing wrong.

               These few opinions set forth a philosophy stripping bare the words of

Chief Justice Hecht’s concurring opinion that express “the injustice of

imputing one person's criminal acts to an innocent victim.” Fairfield Ins. Co.

v. Stephens Martin Paving, LP, 246 S.W.3d 653, 674-75 (Tex. 2008). Those

words powerfully demonstrate the role of public policy, which

               must be carefully ‘deduced from its constitution, laws, and
               judicial decisions.’ The requirement of deduction is critical; it
               circumscribes judicial authority. Courts are to derive public
               policy from existing law, not create it. And courts must also
               recognize that public policy may change over time 45
               Amrani-Khaldi’s reasoning is formulated around public policy




45
     Fairfield Ins. Co., 246 S.W.3d at 673.

2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	     	          50	  	  
                                                                        46
that disregards specific constitutional protections,                         statutory

provisions, and fundamental equitable-legal doctrines. 47 As such,

Amrani-Khaldi, its progeny, and problematic philosophy cannot

support summary judgment against Mrs. Alcorn or anyone else.


B. THE PROCEEDINGS WERE UNJUST AND UNFAIR.

               If this Court affirms the trial court in this case, it is effectively

removing any right of a spouse, and possibly other family members, from

ever challenging the State’s ability to seize and forfeit property.

               The trial court found Ms. Alcorn to have standing, and to be “entitled

to the requisite rights provided any holder of interest under Chapter 59.” (I

C.R. 347) But then it granted summary judgment for lack of standing. (Id. at

352-53) Even if no standing exists to raise an innocent owner defense, Mrs.

Alcorn has general standing to protect her property by challenging the

State’s proof, and asserting other defenses, like limitations, because that is

required by all principles of due process, as well as Article I, § 21, of the

Texas Constitution.

               The trial court then said Mrs. Alcorn did not establish a scintilla of

evidence because her affidavit “does not ring true.” (Id. at 348) Counsel will


46
     TEX. CONST. art. XVI, § 15 (Separate and Community Property.)
47
     See TEX. FAM. CODE ANN. §§3.406 (“equitable lien”), 7.001 (“just and right division”).

2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                       51	  
not reiterate all the evidence, but this determination was not made with an

eye most favorable to Mrs. Alcorn. Her evidence rose to levels upheld by the

State’s supporting authorities—especially considering none of its forfeiture

cases even involve summary judgment. 48

               The trial court’s flawed assumptions are emphasized by evidence

obtained after summary judgment. Mrs. Alcorn did not lie about investing

money into the Buick—she candidly estimated an amount between $1,000

and $2,000 (I C.R. 226) that was actually $2,000. (I C.R. Supp. 88)

               Was she lying about the price of the vehicles not being reflected in the

State’s schedule A? Well, the $2,997 worth of improvements to the Buick

from Eagle Automotive—after the alleged act—equals what the State gave

for the Buick as a whole. (Id. at 90-91) The $4,000 of improvements made

by John Krause at Rockdale Auto Specialties proves a value much greater

than the State’s estimate. (Id. at 356-57)

               Mrs. Alcorn said rims were on the Buick when it was seized but have

since disappeared (I C.R. 226), inventory forms show all four tires on both

vehicles when they were seized (I C.R. 230-31), and new pictures show the



48
  Amrani-Khaldi, 575 S.W.2d at 668 (“Trial”); Gaston, 641 S.W.2d at 264 (hearing
evidence); Gray,1999 Tex. App. LEXIS 8213, at *3 (“bench trial”); One Ford Mustang v.
State, 231 S.W.3d 445, 450 (Tex. App.—Waco 2007, no pet.) (“bench trial”); Mitchell,
819 S.W.2d at 661 & n.1 (testimony, exhibits, and findings of fact); $18,800 v. State, 961
S.W.2d 257, 261 (Tex. App.—Houston 1997, no writ) (“at trial”).

2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                     52	  
Buick sitting in police impound with all four tires and rims missing. (I C.R.

Supp. 106-09) The State remains silent.

               The receipt from the Rim Shop in Austin, Texas shows the Dodge

truck rims were not even purchased until February 4, 2014—six months

after the act alleged by the State. (I C.R. 360)

               The State and trial court knew about the hardships facing both Mrs.

Alcorn and her attorney. (I C.R. Supp. 126-33) (I C.R. 173-80) Mrs. Alcorn

was late in the game due the State’s failure to timely serve her, was then

bombarded with discovery, and immediately subjected to summary

judgment proceedings without adequate time to investigate. (I C.R. Supp.

126-33) The State also did not disclose evidence—like the information given

by James Rackley, statements of other witnesses/agents, method of

valuation, and the disappearance of valuable property. (I C.R. 238-43)

               The State’s own playbook says it cannot “structure the forfeiture

proceeding in a way that deprives a statutorily defined claimant of the right

to present a claim.” 49 Yet, the State was permitted to simply ignore service

requirements, timing rules, discovery practices, and standards of proof while

Appellant was forced to prove her case, and disprove the State’s, in detail.




49
     TDCAA Guide, at p. 31 (citing TEX. PENAL CODE ANN. §39.03).

2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                   53	  
Even with all its inconsistent evidence and arguments, the State was given

the benefit of the doubt; yet, Appellant was quickly disbelieved. (Id. at 348)

               What are we to do? Merely lie down in submission to political

maneuvers raising the battle cry over the war on drugs? Far too long we

have listened to this delusive song if it means we no longer respect due

process, liberty, fairness, property rights, the pursuit of happiness, and other

equitable principles of American and Texan jurisprudence.

               For even Patrick Henry warns, “We are apt to shut our eyes against a

painful truth, and listen to the song of that siren till she transforms us into

beasts… Suffer not yourselves to be betrayed with a kiss.” 50 Therefore,

Appellant only asks this Court to give fair consideration instead of simply

taking the State’s word for it, as the trial court did below.


                                                                       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


50
  Patrick Henry, An Appeal to Arms, Virginia Convention (March 23, 1775) in Charles
Morris, Famous Orators of the World & Their Famous Orations 21 (John C. Winston
ed., 1902).

2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                                 54	  
                                                                       _________________________
                                                                       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 February 23, 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

wwtorrey@milamcounty.net and dkeen@milamcounty.net, electronic

transmission was reported as complete.


                                                                            _______________________
                                                                            Benton Ross Watson




2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                                      55	  
         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 11,881 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 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.

____________________________________________
(Signature of filing party)

___Benton Ross Watson________________________
(Printed name)

___Sole Practitioner___________________________
(Firm)

__February 23, 2015___________________________
(Date)




2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	            56	  
                                                                       APPENDICES


             Trial Court's Order Granting State's Motion for Summary Judgment..................A-1

              Trial Court's Order Denying Appellant's Motion for New Trial...........................A-2

              Texas Code of Criminal Procedure Article 59.02......................................................B-1

              Texas Code of Criminal Procedure Article 59.02......................................................B-2




2004	  DODGE	  RAM	  1500	  V.	  STATE—APPELLANT’S	  BRIEF	                                               57	  
APPENDIX A-1
                                           CAUSE NO. CV 36,279




     THE STATE OF TEXAS               §                                   IN THE DISTRICT COURT
                                      §
     VS.                              §                                   20TH JUDICIAL DISTRICT
                                      §
     2004 DODGE RAM 1500 TXLP#CPL1988 §                                    MILAM COUNTY, TEXAS
     AND 2000 BUICK TXLP#CV1N8l7      §



              ORDER GRANTING STATE'S MOTION FOR SUMMARY JUDGMENT



            On the £ d a y of              ~~, 2014, came on to be heard the above
     entitled and numbered Cause, wherein The State of Texas is Petitioner and Sedderick Alcorn and

     LaToya Alcorn are Respondent(s). The property made the subject of this suit is set forth in detail in

     the State's Notice of Seizure and Intended Forfeiture.

                                                       I.

            Petitioner appeared by and through her attorney of record and announced ready for trial and

     Respondent, Sedderick Alcorn, failed to appear.

     Respondent, LaToya Alcorn, appeared by and through her attorney of record, Ross Watson.

                                                       II.

            Respondent, Sedderick Alcorn, was served with a copy of Petitioner's Motion for Summary

     Judgment and did not file contravening motion with affidavits and did not present evidence to

     counter Petitioner's Motion for Summary Judgment.



            Respondent, LaToya Alcorn, was served with a copy of Petitioner's Motion for Summary

     Judgment and did file a contravening motion with affidavit and did present evidence to counter


                                                                                                        1
                                                                                                      351
IMAGED

Petitioner's Motion for Summary Judgment.

                                                 III.

       The Court, after reviewing the pleadings is of the opinion Petitioner's Motion for Summary

Judgment produced evidence sufficient to show the property made the subject of this motion is

subject to forfeiture under the provisions of Chapter 59 of the Texas Code of Criminal Procedure,

and that Petitioner's Motion for Summary Judgment should be granted.

                                                 IV.

       IT IS HEREBY ORDERED that Petitioner's Motion for Summary Judgment is, in all

things, GRANTED.

                                                 V.

       IT IS ORDERED that the 2004 DODGE RAM 1500 TXLP#CPL 1988 and 2000 BUICK

TXLP#CV 1N817 are forfeited to the State of Texas, to be administered by the attorney

representing the State of Texas, pursuant to the applicable local agreements with the Milam

County Sheriff's Department, in a manner prescribed by Section 59.06, Texas Code of Criminal

Procedure, and that upon payment of all lawful liens the Texas Department of Transportation,

Motor Vehicle Division, is directed to issue good and sufficient title to such vehicle such that

will perfect title in the Milam County Sheriff's Office and any subsequent purchaser from said

agency. The Milam County Sheriff's Office will satisfy any outstanding lien(s), towing fees or

impound/storage fees on this vehicle, if any.



                                                 VI.

       IT IS FURTHER ORDERED that any property which is held as evidence in any pending

civil forfeiture or criminal case and ordered distributed in this judgment, shall not be distributed



                                                                                                   2
                                                                                                 352
until such criminal or civil forfeiture case is final and/or the evidence hold removed.



       All costs of Court are taxed against Respondent, Sedderick Alcorn and LaToya Alcorn for

which let execution issue if not timely paid.



       SIGNED this    /-f;~ day of       ~                      ,2014.




                                                                                             3
                                                                                          353
APPENDIX A-2
138
APPENDIX B-1
                                                                                                                                2/23/15, 3:57 AM



 Lexis Advance®
 Research


 Document: Tex. Code Crim. Proc. art. 59.02




                                        Tex. Code Crim. Proc. art. 59.02

                                                             Copy Citation

                               This document is current through the 2013 3rd Called Session

          Texas Statutes and Codes              CODE OF CRIMINAL PROCEDURE                             TITLE 1. CODE
          OF CRIMINAL PROCEDURE OF 1965                             MISCELLANEOUS
          PROCEEDINGS                CHAPTER 59. FORFEITURE OF CONTRABAND


         Art. 59.02. Forfeiture of Contraband

         (a) Property that is contraband is subject to seizure and forfeiture under this chapter.

         (b) Any property that is contraband other than property held as evidence in a criminal
         investigation or a pending criminal case, money, a negotiable instrument, or a security that is
         seized under this chapter may be replevied by the owner or interest holder of the property, on
         execution of a good and valid bond with sufficient surety in a sum equal to the appraised value
         of the property replevied. The bond may be approved as to form and substance by the court after
         the court gives notice of the bond to the authority holding the seized property. The bond must be
         conditioned:

         (1) on return of the property to the custody of the state on the day of hearing of the forfeiture
         proceedings; and

         (2) that the interest holder or owner of the property will abide by the decision that may be made
         in the cause.


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                                                                                                                                2/23/15, 3:57 AM



         (c) An owner or interest holder's interest in property may not be forfeited under this chapter if
         the owner or interest holder proves by a preponderance of the evidence that the owner or interest
         holder acquired and perfected the interest:

         (1) before or during the act or omission giving rise to forfeiture or, if the property is real
         property, he acquired an ownership interest, security interest, or lien interest before a lis pendens
         notice was filed under Article 59.04(g) of this code and did not know or should not reasonably
         have known of the act or omission giving rise to the forfeiture or that it was likely to occur at or
         before the time of acquiring and perfecting the interest or, if the property is real property, at or
         before the time of acquiring the ownership interest, security interest, or lien interest; or

         (2) after the act or omission giving rise to the forfeiture, but before the seizure of the property,
         and only if the owner or interest holder:

         (A) was, at the time that the interest in the property was acquired, an owner or interest holder
         for value; and

         (B) was without reasonable cause to believe that the property was contraband and did not
         purposefully avoid learning that the property was contraband.

         (d) Notwithstanding any other law, if property is seized from the possession of an owner or
         interest holder who asserts an ownership interest, security interest, or lien interest in the property
         under applicable law, the owner or interest holder's rights remain in effect during the pendency
         of proceedings under this chapter as if possession of the property had remained with the owner
         or interest holder.

         (e) On motion by any party or on the motion of the court, after notice in the manner provided by
         Article 59.04 of this code to all known owners and interest holders of property subject to
         forfeiture under this chapter, and after a hearing on the matter, the court may make appropriate
         orders to preserve and maintain the value of the property until a final disposition of the property
         is made under this chapter, including the sale of the property if that is the only method by which
         the value of the property may be preserved until final disposition.

         (f) Any property that is contraband and has been seized by the Texas Department of Criminal
         Justice shall be forfeited to the department under the same rules and conditions as for other
         forfeitures.


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         (g) An individual, firm, corporation, or other entity insured under a policy of title insurance
         may not assert a claim or cause of action on or because of the policy if the claim or cause of
         action is based on forfeiture under this chapter and, at or before the time of acquiring the
         ownership of real property, security interest in real property, or lien interest against real property,
         the insured knew or reasonably should have known of the act or omission giving rise to the
         forfeiture or that the act or omission was likely to occur.

         (h) (1) An owner or interest holder's interest in property may not be forfeited under this chapter
         if at the forfeiture hearing the owner or interest holder proves by a preponderance of the
         evidence that the owner or interest holder was not a party to the offense giving rise to the
         forfeiture and that the contraband:

         (A) was stolen from the owner or interest holder before being used in the commission of the
         offense giving rise to the forfeiture;

         (B) was purchased with:

         (i) money stolen from the owner or interest holder; or

         (ii) proceeds from the sale of property stolen from the owner or interest holder; or

         (C) was used or intended to be used without the effective consent of the owner or interest
         holder in the commission of the offense giving rise to the forfeiture.

         (2) An attorney representing the state who has a reasonable belief that property subject to
         forfeiture is described by Subdivision (1) and who has a reasonable belief as to the identity of
         the rightful owner or interest holder of the property shall notify the owner or interest holder as
         provided by Article 59.04.

         (3) An attorney representing the state is not liable in an action for damages resulting from an act
         or omission in the performance of the duties imposed by Subdivision (2).

         (4) The exclusive remedy for failure by the attorney representing the state to provide the notice
         required under Subdivision (2) is submission of that failure as a ground for new trial in a motion
         for new trial or bill of review.

         (i) The forfeiture provisions of this chapter apply to contraband as defined by Article 59.01(2)


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         (B)(v) of this code only in a municipality with a population of 250,000 or more.



         History


         Enacted by Acts 1989, 71st Leg., 1st C.S., ch. 12 (H.B. 65), § 1, effective October 18, 1989; am.
         Acts 1993, 73rd Leg., ch. 828 (S.B. 1285), § 2, effective September 1, 1993; am. Acts 2001,
         77th Leg., ch. 438 (S.B. 626), § 2, effective September 1, 2001; am. Acts 2001, 77th Leg., ch.
         929 (S.B. 563), § 1, effective September 1, 2001; am. Acts 2003, 78th Leg., ch. 1275 (H.B.
         3506), § 2(9), effective September 1, 2003; am. Acts 2009, 81st Leg., ch. 87 (S.B. 1969), §
         25.043, effective September 1, 2009.


                 Annotations



         LexisNexis ® Texas Annotated Statutes
         Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.




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APPENDIX B-2
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 Lexis Advance®
 Research


 Document: Tex. Code Crim. Proc. art. 59.04




                                         Tex. Code Crim. Proc. art. 59.04

                                                             Copy Citation

                               This document is current through the 2013 3rd Called Session

          Texas Statutes and Codes              CODE OF CRIMINAL PROCEDURE                              TITLE 1. CODE
          OF CRIMINAL PROCEDURE OF 1965                             MISCELLANEOUS
          PROCEEDINGS                CHAPTER 59. FORFEITURE OF CONTRABAND


         Art. 59.04. Notification of Forfeiture Proceeding

         (a) If a peace officer seizes property under this chapter, the attorney representing the state shall
         commence proceedings under this section not later than the 30th day after the date of the
         seizure.

         (b) A forfeiture proceeding commences under this chapter when the attorney representing the
         state files a notice of the seizure and intended forfeiture in the name of the state with the clerk of
         the district court in the county in which the seizure is made. The attorney representing the state
         must attach to the notice the peace officer's sworn statement under Article 59.03 of this code or,
         if the property has been seized under Article 59.12(b), the statement of the terms and amount of
         the depository account or inventory of assets provided by the regulated financial institution to
         the peace officer executing the warrant in the manner described by Article 59.12(b). Except as
         provided by Subsection (c) of this article, the attorney representing the state shall cause certified
         copies of the notice to be served on the following persons in the same manner as provided for
         the service of process by citation in civil cases:


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         (1) the owner of the property; and

         (2) any interest holder in the property.

         (c) If the property is a motor vehicle, and if there is reasonable cause to believe that the vehicle
         has been registered under the laws of this state, the attorney representing the state shall ask the
         Texas Department of Motor Vehicles to identify from its records the record owner of the vehicle
         and any interest holder. If the addresses of the owner and interest holder are not otherwise
         known, the attorney representing the state shall request citation be served on such persons at the
         address listed with the Texas Department of Motor Vehicles. If the citation issued to such
         address is returned unserved, the attorney representing the state shall cause a copy of the notice
         of the seizure and intended forfeiture to be posted at the courthouse door, to remain there for a
         period of not less than 30 days. If the owner or interest holder does not answer or appear after
         the notice has been so posted, the court shall enter a judgment by default as to the owner or
         interest holder, provided that the attorney representing the state files a written motion supported
         by affidavit setting forth the attempted service. An owner or interest holder whose interest is
         forfeited in this manner shall not be liable for court costs. If the person in possession of the
         vehicle at the time of the seizure is not the owner or the interest holder of the vehicle,
         notification shall be provided to the possessor in the same manner specified for notification to an
         owner or interest holder.

         (d) If the property is a motor vehicle and is not registered in this state, the attorney representing
         the state shall attempt to ascertain the name and address of the person in whose name the vehicle
         is licensed in another state. If the vehicle is licensed in a state that has a certificate of title law,
         the attorney representing the state shall request the appropriate agency of that state to identify
         the record owner of the vehicle and any interest holder.

         (e) If a financing statement is required by law to be filed to perfect a security interest affecting
         the property, and if there is reasonable cause to believe that a financing statement has been filed,
         the attorney representing the state who commences the proceedings shall ask the appropriate
         official designated by Chapter 9, Business & Commerce Code, to identify the record owner of
         the property and the person who is an interest holder.

         (f) If the property is an aircraft or a part of an aircraft, and if there is reasonable cause to believe
         that a perfected security instrument affects the property, the attorney representing the state shall
         request an administrator of the Federal Aviation Administration to identify from the records of

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         that agency the record owner of the property and the holder of the perfected security instrument.
         The attorney representing the state shall also notify the Department of Public Safety in writing
         of the fact that an aircraft has been seized and shall provide the department with a description of
         the aircraft.

         (g) If the property is real property, the attorney representing the state, not later than the third
         day after the date proceedings are commenced, shall file a lis pendens notice describing the
         property with the county clerk of each county in which the property is located.

         (h) For all other property subject to forfeiture, if there is reasonable cause to believe that a
         perfected security instrument affects the property, the attorney representing the state shall make
         a good faith inquiry to identify the holder of the perfected security instrument.

         (i) Except as provided by Section (c) of this article, the attorney representing the state who
         commences the proceedings shall cause the owner and any interest holder to be named as a party
         and to be served with citation as provided by the Texas Rules of Civil Procedure.

         (j) A person who was in possession of the property at the time it was seized shall be made a
         party to the proceeding.

         (k) If no person was in possession of the property at the time it was seized, and if the owner of
         the property is unknown, the attorney representing the state shall file with the clerk of the court
         in which the proceedings are pending an affidavit stating that no person was in possession of the
         property at the time it was seized and that the owner of the property is unknown. The clerk of
         the court shall issue a citation for service by publication addressed to "The Unknown Owner of
            ," filling in the blank space with a reasonably detailed description of the property subject to
         forfeiture. The citation must contain the other requisites prescribed by and be served as provided
         by Rules 114, 115, and 116, Texas Rules of Civil Procedure.

         (l) Proceedings commenced under this chapter may not proceed to hearing unless the judge who
         is to conduct the hearing is satisfied that this article has been complied with and that the attorney
         representing the state will introduce into evidence at the hearing any answer received from an
         inquiry required by Subsections (c)--(h) of this article.



         History

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         Enacted by Acts 1989, 71st Leg., 1st C.S., ch. 12 (H.B. 65), § 1, effective October 18, 1989; am.
         Acts 1991, 72nd Leg., ch. 14 (S.B. 404), § 282, effective September 1, 1991; am. Acts 1995,
         74th Leg., ch. 165 (S.B. 971), § 22(25), effective September 1, 1995; am. Acts 1995, 74th Leg.,
         ch. 533 (S.B. 1217), § 1, effective September 1, 1995; am. Acts 2001, 77th Leg., ch. 438 (S.B.
         626), § 4, effective September 1, 2001; am. Acts 2009, 81st Leg., ch. 933 (H.B. 3097), § 3B.02,
         effective September 1, 2009.


                 Annotations



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         Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.




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Date and Time: Feb 23, 2015 04:57:23 a.m. EST




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