Reversed and Rendered in Part, Reversed and Remanded in Part, and
Majority and Concurring Opinions filed November 24, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00385-CV

                   APPROXIMATELY $31,421.00, Appellant
                                          V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 157th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-13933

                   CONCURRING OPINION
      Under the applicable standard of review and the charge submitted to the
jury, the trial evidence is legally insufficient to support the jury’s finding that the
money seized from the claimant is contraband. Therefore, the proper course is to
reverse the forfeiture judgment, render judgment ordering the State to return the
seized property, and remand for further proceedings. Because the majority reaches
this result, I join in the court’s judgment, but I respectfully decline to join the
majority opinion. My analysis is narrower.

       In his second issue, claimant Fredi Azuara Enriquez argues that the trial
evidence is legally insufficient to support the jury’s finding that the money seized
from him is contraband. The State did not object to this part of the jury charge,
and this court measures the sufficiency of the evidence under the charge given,
even if it does not correctly state the law.1

       Under the charge given, the money is contraband if it was used or intended
to be used in the commission of one of the following felony offenses or if the
money was the proceeds gained or acquired from the commission of one of these
offenses:

       (1)         knowingly or intentionally delivering or possessing with intent to
                   deliver a controlled substance, including cocaine, methamphetamine,
                   and heroin, or
       (2)         knowingly or intentionally delivering more than one-fourth of an
                   ounce of marijuana.
Under the charge given, the money also is contraband if it was used or intended to
be used in the commission of the felony offense of knowingly acquiring or
maintaining an interest in, concealing, possessing, transferring, or transporting the
proceeds of any offense classified as a felony in Texas or in the United States of
America.

       At trial, Officer Piel testified that it was probable that the drug-detection dog
alerted to Enriquez’s bag because the bag had been in recent proximity to a large

1
  See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding that appellate court could not
review the sufficiency of the evidence based on a particular legal standard because that standard
was not submitted to the jury and no party objected to the charge on this ground or requested that
the jury be charged using this standard); Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc., 201
S.W.3d 272, 283–86 (Tex. App.—Houston [14th Dist.] 2006, no. pet.) (reviewing sufficiency of
evidence based on unobjected-to jury instruction and rejecting various arguments based on
different legal standards).

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amount of controlled substances. There is no evidence that the drug-detection dog
alerted to the money or that the money was inside Enriquez’s bag when the dog
alerted to the bag. Nothing in the record tells us what controlled substance the dog
detected. The dog was trained to alert to heroin, cocaine, methamphetamines, and
marijuana. Presuming that the evidence is legally sufficient to support a finding
that the money had recently been near a large amount of controlled substances, the
evidence is still lacking because the large amount of controlled substances may
have been marijuana being used in a criminal enterprise in which the marijuana
was delivered in amounts of less than one-fourth of an ounce, which would not
constitute a felony offense.

         Considering the evidence in the light most favorable to the challenged
finding, indulging every reasonable inference that would support it, crediting
favorable evidence if reasonable jurors could, and disregarding contrary evidence
unless reasonable jurors could not, the trial evidence would not enable reasonable
and fair-minded people to find that the money is contraband under the charge
submitted to the jury.2 Therefore, the evidence is legally insufficient to support the
jury’s finding that the seized money is contraband.




                                              /s/       Kem Thompson Frost
                                                        Chief Justice


Panel consists of Chief Justice Frost and Justices Jamison and Busby (Jamison, J.,
majority).


2
    See City of Keller v. Wilson, 168 S.W.3d 802, 823, 827 (Tex. 2005).

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