                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                                                                F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                                                                                October 20, 2005
                               FOR THE FIFTH CIRCUIT                         Charles R. Fulbruge III
                                                                                     Clerk


                                     No. 05-10257
                                   Summary Calendar



      UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                          versus

      TOMMY E. T. INGRAM,

                                                       Defendants-Appellant,

      BRENDA INGRAM,

                                                       Movant-Appellant.


                   Appeal from the United States District Court for
                            the Northern District of Texas
                              (USDC No. 4:04-CV-868)
          _________________________________________________________

Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.

PER CURIAM:*




      *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.

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       Reviewing the district court’s conclusions of law de novo and findings of fact for

clear error, we affirm for the following reasons:

1.     The proof that the Trust check funds came from Mrs. Ingram’s parents’ estate was

       inadequate. TEXAS FAM. CODE § 3.003(b) (Vernon 1998) (“The degree of proof

       necessary to establish that property is separate property is clear and convincing

       evidence.”). Mrs. Ingram’s testimony alone was insufficient to rebut the

       community presumption. Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.—Fort

       Worth 2004, no pet.) (“mere testimony that property was purchased with separate

       funds, without any tracing of the funds, is insufficient to rebut the community

       presumption”). The presumption of community property under Texas law is

       dispositive. TEXAS FAM. CODE § 3.003(a) (Vernon 1998).

2.     Furthermore, for the reasons given below, the Schwab account consisted of

       commingled funds, and without clear evidence of transactions affecting that

       account, the Ingrams failed to overcome the statutory community property

       presumption.

3.     The Ingrams also argue that the district court erred in finding that they failed to

       show by clear and convincing evidence that the additional $400.00 used to start-up

       the Schwab account represented John Hancock funds that were part of Mrs.

       Ingram’s inheritance from her parents’ estate. The only evidence in the record

       relating to the source of the $400.00 was: (1) a December 15, 1997 letter from

       Schwab to Monument Investments indicating a $400.00 deposit; and (2) Mrs.

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     Ingram’s testimony. The letter indicates that, contrary to Mrs. Ingram’s testimony,

     the $400.00 was not used to start-up the Schwab account, but was deposited into a

     different account. There is no evidence in the record to show the source of the

     $400.00, other than Mrs. Ingram’s testimony that the $400.00 derived from John

     Hancock funds that were part of her inheritance, which as stated above, is

     insufficient to rebut the community presumption. Boyd, 131 S.W.3d at 612.

     Accordingly, the district court did not err in finding that the Ingrams failed to rebut

     by clear and convincing evidence the community property presumption, and thus,

     the $400.00 was community property. TEXAS FAM. CODE § 3.003(a) & (b)

     (Vernon 1998).

4.   The district court found that, since the Schwab account consisted of commingled

     funds, and Mrs. Ingram failed to provide clear evidence of the transactions

     affecting the Schwab account, there was no need for it to separately discuss the

     testimony and exhibits, pertaining to the deposit of $4,237.08 into the Schwab

     account on January 15, 1998. We agree. When separate and community property

     are commingled in a manner defying segregation, it is presumed that the entire

     fund consists of community property. McKinley v. McKinley, 496 S.W.2d 540,

     543 (Tex. 1973). This presumption can be overcome by showing, through tracing,

     that the separate properties that went into the account never came out. Hill v. Hill,

     971 S.W.2d 153, 158 (Tex. App.—Amarillo 1998, no pet.). In tracing, we must

     indulge in two presumptions: (1) separate funds deposited into the account sink to

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    the bottom, and (2) community funds are withdrawn first. Id. To satisfy the

    burden of proof imposed on them, the Ingrams must have shown that the separate

    funds ($4,237.08) were deposited into the Schwab account and that the balance of

    the Schwab account never reached zero. Id. If the Ingrams had done this, then we

    would presume that the balance contains separate property equaling the amount of

    the separate funds initially deposited less withdrawals that encroached upon the

    deposit. Id. However, as the district court found, the Ingrams failed to provide

    any statements showing activity on the Schwab account or the balance of the

    account for its six-year existence. The only documentary evidence provided

    concerning the status of investments and transactions during the Schwab account’s

    six-year existence was the December 15, 1997, item showing the opening of the

    account, the item showing a withdrawal of $8,827.00 from the account in April

    2004, and the item showing a deposit of $4,237.08 to the account. Accordingly,

    the Ingrams failed to show through tracing that the $4,237.08 never came out of

    the Schwab account. Id. The burden to overcome the statutory presumption was

    on the Ingrams and we cannot say that they have sustained that burden.

AFFIRMED.




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