AFFIRM; and Opinion Filed December 5, 2014.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-13-01367-CV

              FIVE THOUSAND NINE HUNDRED AND SEVEN DOLLARS
                 ($5,907) IN UNITED STATES CURRENCY, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the 160th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-12-06641

                             MEMORANDUM OPINION
                           Before Justices Francis, Myers, and Brown
                                   Opinion by Justice Francis
       Noe Delarosa appeals the trial court’s judgment, which found $5,907 in United States

currency to be contraband and subject to forfeiture. The money was seized from Delarosa by

police following his arrest for possession of a controlled substance. Delarosa contends the State

failed to establish probable cause that a substantial connection exists between the $5,907 and the

untried possession offense. We affirm.

       The officers who stopped and arrested Delarosa testified at the forfeiture trial. They

stopped him as he was driving through downtown Dallas because the music being played in his

vehicle was so loud it was “echoing through downtown” and causing a disturbance. Officers

identified Delarosa, determined that he had a number of outstanding warrants, and arrested him.

When asked if there was anything in the vehicle that the police needed to know about, Delarosa
stated he had some weed in a black backpack. In fact, the backpack found in the vehicle

contained marijuana in several baggies, a large number of empty baggies (including 76 “dime”

bags used in the sale of crack cocaine), log sheets for narcotics transactions, a scale, measuring

spoons, and the $5,907. The scale contained cocaine residue; the spoons and some of the bags

contained marijuana residue.

       Delarosa was in federal custody on an unrelated offense at the time of trial. He testified

by telephone, stating that after he was placed under arrest and handcuffed, the officers searched

him and took nearly $6,000 from his pockets. He testified that he was carrying that large amount

of cash because he was working “some pretty big jobs” close to where he was pulled over, and

he had just been paid. Delarosa also said he had corresponded with his customers and his lawyer

to obtain proof that the cash he was carrying that day was payment for work he had performed.

He testified that his lawyer had documentation from those customers, and he had been counting

on his lawyer to handle the trial for him. But Delarosa was not represented at the forfeiture trial.

       In rebuttal, the State re-called the arresting officer, who testified that no money was taken

from Delarosa’s pockets when he was arrested.

       The State argued the evidence seized from Delarosa’s backpack established that he was

selling both cocaine and marijuana. According to the State, the proximity of the cash to the

drugs and drug paraphernalia established that the cash was drug money—earned by selling

cocaine and marijuana—that should be forfeited.

       Delarosa told the trial court he would present evidence to show the money was

legitimately earned. However, our record does not include a motion for new trial or any other

post-judgment filing in the trial court whereby such evidence could have been presented to the

trial court. Delarosa did attach to his notice of appeal two letters from businesses confirming

that he had worked for them doing general contract work and that they had paid him a total of

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$7,700. However, these letters are not part of our record, and we may not consider them in our

review. See Perry v. Kroger Stores Store No. 119, 741 S.W.2d 533, 534 (Tex. App.—Dallas

1987, no writ) (documents attached to brief cannot be considered); see also Watts v. Hancock,

No. 05-12-01635-CV, 2014 WL 2807955, at *2 (Tex. App.—Dallas June 18, 2014, no pet.)

(documents attached to notice of appeal cannot be considered).

       Property that is contraband is subject to seizure and forfeiture. TEX. CODE. CRIM. PROC.

ANN. art. 59.02(a) (West Supp. 2014). The statutory definition of contraband includes any

property used or intended to be used in the commission of a felony under chapter 481 of the

Texas Health and Safety Code, the Texas Controlled Substances Act. TEX. CODE. CRIM. PROC.

ANN. art. 59.01(2)(B)(i). Possession of marijuana greater than four ounces is a state jail felony

for which the forfeiture statute applies. See id.; TEX. HEALTH & SAFETY CODE ANN. § 481.121

(West 2010). In a forfeiture proceeding, the burden is on the State to establish there was

probable cause to seize the property; in this context, probable cause is a reasonable belief that a

substantial connection exists between the property to be forfeited and criminal activity defined

by statute. Fifty-Six Thousand Seven Hundred Dollars in U.S. Currency v. State, 730 S.W.2d

659, 661 (Tex. 1987).

       In his first appellate issue, Delarosa contends the State failed to establish the necessary

connection between the $5,907 and the untried charge that he possessed more than four ounces

of marijuana. We disagree. The State offered evidence that the money was found in the same

backpack as the marijuana and its associated paraphernalia. The arresting officer testified that

the presence of the scale, spoons, and dime bags—as well as the log of transactions recording

payments he had received—indicated Delarosa was selling drugs and the money was payment

for those sales. Although Delarosa contended the money was payment for legitimate work, he

offered no evidence other than his own testimony of such a connection. We conclude the State

                                               –3–
established a reasonable belief that the $5,907 was substantially connected to Delarosa’s

possession of the marijuana. We overrule his first issue.

         In his second issue, Delarosa states he has “a statutory right to compel the agency to

proceed by judicial forfeiture.” The complaint lacks clarity, in the first instance, because the

State did proceed by judicial process. Delarosa’s legal authority is not helpful either: he cites

two cases addressing default judgments, although his case was not resolved by default. He also

cites a case concerning the requirement of notice to satisfy due process. In his summary of

argument, Delarosa states that his notice of the forfeiture proceeding was served at a residential

address although the police and district attorney knew he was in federal custody. But Delarosa

made no complaint concerning notice at trial. To the contrary, he appeared at trial by telephone,

and he testified that he had been in contact with witnesses and with his attorney concerning

gathering evidence for trial. Although Delarosa stated he thought his attorney would be present,

he did not complain that he lacked notice of the nature or timing of the trial. To the extent

Delarosa’s second issue is a complaint that he received inadequate notice of the forfeiture

proceeding, we conclude he did not preserve that complaint for our review. See Prade v. Helm,

725 S.W.2d 525, 527 (Tex. App.—Dallas 1987, no writ) (complaint of inadequate notice under

rules of civil procedure is waived absent timely and specific objection). We overrule his second

issue.

         We affirm the trial court’s judgment.




                                                       /Molly Francis/
                                                       MOLLY FRANCIS
                                                       JUSTICE

131367F.P05

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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

FIVE THOUSAND NINE HUNDRED                           On Appeal from the 160th Judicial District
AND SEVEN DOLLARS ($5,907) IN                        Court, Dallas County, Texas
UNITED STATES CURRENCY, Appellant                    Trial Court Cause No. DC-12-06641.
                                                     Opinion delivered by Justice Francis.
No. 05-13-01367-CV         V.                        Justices Myers and Brown participating.

THE STATE OF TEXAS, Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

      It is ORDERED that appellee THE STATE OF TEXAS recover its costs of this appeal
from NOE DELAROSA.


Judgment entered this 5th day of December, 2014.




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