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

                         MAJORITY OPINION


       This is an appeal from a final judgment to seize money from Fredi Azuara
Enriquez.1 In four issues, Enriquez challenges the sufficiency of the evidence and


       1
         See Tex. Code Crim. Proc. arts. 59.01-.14. In forfeiture proceedings, the defendant is
the seized property, but the complaining party on appeal, the claimant, is the person from whom
the property was seized. See id. art. 59.04(j); see also State v. $217,590.00 in U.S. Currency, 18
S.W.3d 631, 632 (Tex. 2000).
complains of jury charge error and violations of his constitutional rights. Because
we hold that the evidence is legally insufficient to support the jury’s finding on
contraband, we reverse the trial court’s judgment, render judgment ordering the
State to return the seized proceeds to Enriquez, and remand for proceedings
consistent with this opinion.

                                        Background

       Enriquez and another individual disembarked in Houston from a bus arriving
from Atlanta, Georgia. Two officers who were monitoring the bus terminal for
drug or drug money couriers became suspicious of Enriquez and the other
individual. The officers testified that Enriquez acted as if he were looking around
for police when he got off the bus. He subsequently clutched his bag to his chest
and walked to the bathroom with his head down, which the officers took as an
indication that he was trying to avoid them. When he came out, he sat next to
someone in the waiting area and started a conversation with him. One officer
thought that odd because if Houston were Enriquez’s destination, he probably
would have gotten into a cab or had someone there to pick him up. The other
officer also testified that Enriquez was extremely nervous, shaking his leg up and
down. At that point, the officers decided to approach and question him.

       Enriquez told the officers that he was traveling from Atlanta to Houston to
meet a friend. One officer asked him for his identification and bus ticket. The
names on his identification and bus ticket did not match. The officer asked
Enriquez if he had any luggage and for permission to search it. After Enriquez
consented to a search of his bag, the officers discovered bundles of money totaling
approximately $31,421 in a zippered pocket at the bottom of the bag.2 The money

       2
          Enriquez’s counsel asked the testifying officer about the pocket, “This is out in the
open. If you just looked at the bag you would see it.” The officer responded, “Yeah.”

                                              2
was seized as proceeds gained from commission of a felony offense.3

       The State filed a notice of seizure and forfeiture against the money. At trial,
the court instructed the jury to consider whether the officers had probable cause to
seize the money and whether it was contraband. The jury answered “yes” to both
questions.

                                         Discussion

       In his second issue, Enriquez challenges the sufficiency of the evidence to
support the jury’s finding that the seized money is contraband.4 Enriquez argues
the finding is not supported by legally sufficient evidence because there was no
evidence that any drug deal actually occurred and a drug detection dog alerted only
to Enriquez’s bag, not the money, which merely gives rise to a suspicion that
narcotics had been in or around the bag. Enriquez asserts that any drug offense
would have occurred outside Texas, and the State was limited by the charge to
proving (1) delivery or possession of a controlled substance in Texas, (2) delivery
of marijuana in Texas, or (3) money laundering related to one of these Texas
offenses at the felony level.5 Because we conclude that the State did not present
evidence that the money was used or intended to be used in or derived from the
commission of any offense, we need not decide whether the State was limited to


       3
         Enriquez was arrested and charged with money laundering, but a grand jury no-billed
the charges.
       4
         Enriquez also complains in his first, third, and fourth issues that the (1) trial court
erroneously submitted a broad-form jury charge question that commingled valid and invalid
theories of liability; (2) evidence is legally and factually insufficient to support the jury’s
findings that the State had probable cause to seize the money; and (3) forfeiture of property
without showing that a crime was committed is unconstitutional. Because of our disposition of
the case under issue two, we need not address appellant’s remaining issues. See Regan v. Lee,
879 S.W.2d 133, 137 (Tex. App.—Houston [14th Dist.] 1994, no writ).
       5
        Enriquez argues that the State was so limited because the jury was not instructed on the
elements of any federal felonies to support a finding of money laundering.

                                               3
proving the money was connected to a Texas offense.

       Enriquez also argues broadly that there is legally insufficient evidence that
the money was tied to specific criminal activity. We agree.

       When reviewing for legal sufficiency, we consider the evidence in the light
most favorable to the finding and indulge every reasonable inference that supports
the challenged finding. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).
We credit favorable evidence if a reasonable factfinder could and disregard
contrary evidence unless a reasonable factfinder could not. Id. at 827. We will
conclude that the evidence is legally insufficient to support the finding only if
(1) there is a complete absence of evidence of a vital fact, (2) we are barred by
rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a
mere scintilla, or (4) the evidence establishes conclusively the opposite of the vital
fact. Id. at 810.

       As set forth above, property, including money, is subject to seizure and
forfeiture if it is found to be contraband. Tex. Code Crim. Proc. art. 59.02(a).
Contraband is property used or intended to be used in the commission of certain
felonies or proceeds derived from those felonies. Id. art. 59.01(2)(A)-(D).
Conviction of an underlying felony is not required under the forfeiture statute. Id.
art. 59.05(d). However, the State must prove by a preponderance of the evidence
that the seized currency was subject to forfeiture. $7,058.84 in U.S. Currency v.
State, 30 S.W.3d 580, 586 (Tex. App.—Texarkana 2000, no pet.). The proof may
be made by circumstantial evidence. Id. When relying on circumstantial evidence,
the State must offer evidence that raises more than a mere surmise or suspicion
regarding the source of the money. Id. However, the State is not required to
exclude every possible means by which Enriquez might have acquired the money.

                                          4
See id. The factfinder may draw any and all reasonable inferences from the
circumstances shown by the evidence. Id.

       The jury was required to determine whether the seized property is
contraband in accordance with the charge as given. See Dryzer v. Bundren, No. 07-
12-00167-CV, 2014 WL 1856849, at *4 (Tex. App.—Amarillo May 6, 2014, pet.
denied) (mem. op.) (“[T]he court’s instructions become the law of the case and are
to be accepted by the jury as the guide on which they must rely.”); Wal-Mart
Stores, Inc. v. Middleton, 982 S.W.2d 468, 471 (Tex. App.—San Antonio 1998,
pet. denied) (same). Thus, we measure the sufficiency of the evidence to support
the jury’s finding using the charge given when the opposing party does not object
to the charge.6 Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); First Bank v.
DTSG, Ltd., No. 14-13-00694-CV, 2015 WL 3462279, at *13 (Tex. App.—
Houston [14th Dist.] May 28, 2015, no pet. h.).

       To prove that the money was contraband based on the offenses submitted to
the jury, the State had to prove that it was (1) used or intended to be used in the
felony delivery or possession of a controlled substance or delivery of marijuana;
(2) the proceeds gained or acquired from the felony delivery or possession of a
controlled substance or delivery of marijuana; or (3) used or intended to be used in
money laundering. A person commits the felony offense of delivery or possession
of a controlled substance “if the person knowingly manufactures, delivers, or
possesses with intent to deliver a controlled substance in Penalty Group 1.”7 Tex.
Health & Safety Code § 481.112. A person commits the felony offense of delivery

       6
          Enriquez objected to language in the charge referencing federal felonies. However, he
argues on appeal that the jury was limited by the charge to consider the offenses submitted. The
State did not object to the charge.
       7
          Penalty Group 1 is a list of numerous controlled substances that are not pertinent to our
analysis. Tex. Health & Safety Code § 481.102.

                                                5
of marijuana “if the person knowingly or intentionally delivers” more than one-
fourth of an ounce. Id. § 481.120. For conduct to constitute money laundering, the
money must be the proceeds of “criminal activity,” which the charge defined as
any state or federal felony offense. Tex. Pen. Code § 34.02. We note that the jury
was not instructed as to the definition of any state or federal felony other than the
above quoted Health and Safety Code violations. The State did not submit an
instruction on any specific federal felony or argue that a specific federal felony was
committed.

      No direct evidence was presented at trial connecting the money to the
delivery or possession of a controlled substance or marijuana or money laundering.
Therefore, the State was required to present sufficient circumstantial evidence
showing that it is more reasonably probable than not that the money was used or
intended to be used in or was the proceeds of one of the Health and Safety Code
violations quoted above. See $7,058.84, 30 S.W.3d at 586. Courts have reviewed
several factors in assessing the sufficiency of the evidence in a forfeiture case:
(1) the proximity of the money to the drugs and to evidence of drug trafficking;
(2) evidence the money was previously in contact with drugs; (3) suspicious
activity consistent with drug trafficking; (4) the amount of money at issue; and
(5) the presence of expert testimony indicating there was probable cause to seize
the property subject to forfeiture, e.g., that a substantial connection exists between
the property to be forfeited and the criminal activity. $43,774.00 U.S. Currency v.
State, 266 S.W.3d 178, 186 (Tex. App.—Texarkana 2008, pet. denied); see also
$47,200.00 v. State, 883 S.W.2d 302, 309 (Tex. App.—El Paso 1994, writ denied)
(noting State is required to prove source of money through a balance of
probabilities).8

      8
          Our research has not revealed any cases that analyze the sufficiency of the evidence
                                              6
       As noted by the Court of Criminal Appeals, the following types of evidence
have been considered to show a nexus between money and drug trafficking in
forfeiture and money laundering cases: a denial of knowledge of the money, a
narcotics-dog alert on the money, the amount of the money, the packaging of the
money, the secret storage of the money, the presence of illegal drugs, and the
presence of records of drug transactions. Acosta v. State, 429 S.W.3d 621, 625
(Tex. Crim. App. 2014) (citations omitted). Somewhat more controversially, courts
have relied on travel along a known drug route and courier profile evidence. Id. at
625-26. Although concealed movement of money is an integral part of drug
trafficking, the sum total of incriminating facts determines whether the factfinder
may find a nexus between money and drug trafficking. See id. at 626.

       The Northern District of Texas has noted that drug-related forfeitures can be
divided into three categories: (1) close proximity cases when officers find the
property with illegal drugs or determine through investigation that it is very closely
related to illegal drug dealing; (2) cases relying on less persuasive evidence that is
sufficient under the totality of the circumstances; and (3) cases improperly relying
on mere suspicion. United States v. $80,760.00 in U.S. Currency, 781 F. Supp.
462, 472-73 (N.D. Tex. 1991), aff’d, 978 F.2d 709 (5th Cir. 1992). The State may
not seize property based on mere suspicion. See $43,774.00, 266 S.W.3d at 187.

       In the first category, which is the most compelling case for forfeiture, law
enforcement finds the property in close proximity to narcotics or determines
through investigation that it is clearly forfeitable. $80,760.00, 781 F. Supp. at 473.
Law enforcement officers demonstrate this proximity through surveillance,
only as to the finding that the seized assets were contraband, as we do here, without also
analyzing the sufficiency of the evidence of probable cause. We note that the analysis of
“substantial connection” (as an element of probable cause) is not exactly the same as the analysis
of the use, intended use, or proceeds elements of the definition of contraband. However, the
concepts are analogous, so the substantial connection cases are helpful to our analysis.

                                                7
undercover purchases, execution of valid search warrants, arrests, guilty pleas, and
convictions for narcotics offenses. Id. at 473-74 (citations omitted). In each of
these situations, there is an underlying investigation that substantiates the
government’s burden. Id. In the second category of cases, corroboration of an
informant’s tip, testimony of witnesses, presence of drug paraphernalia, use of an
alias in a deliberate attempt to deceive law enforcement, discovery of records
documenting drug transactions, and admissions have all been persuasive factors.
Id. The third category of cases lacks the requisite showing by the State of a
substantial connection between the property to be forfeited and criminal activity.
See $47,200.00, 883 S.W.2d at 306 (“Without a showing of a substantial
connection between the property to be forfeited and the statutorily defined criminal
activity that establishes the required probable cause, the State lacks authority to
seize a person’s property.”); see also $80,760.00, 781 F. Supp. at 474.9 These cases
involve evidence in which there may be a connection between currency and some
illegal activity, but do not give rise to the substantial connection necessary for
forfeiture. $80,760.00, 781 F. Supp. at 474.

       Proximity of Money to Drugs and to Evidence of Drug Trafficking. The
State argues the money was found in close proximity to evidence of drug
trafficking because of the way it was bundled in cellophane and duct tape and
concealed in Enriquez’s bag. Officers testified this method of wrapping currency is
typically used by drug dealers and couriers to prevent police dogs from smelling
the odor of narcotics on the money. Some courts have found that wrapping cash in
cellophane-type material may be used to conceal the smell of drugs and avoid

       9
          In $47,200.00, the court concluded that the State’s circumstantial evidence was
sufficient to support the trial court’s finding that seized money was the proceeds from the
commission of a felony because, among other things, the respondents were involved in the
transportation of large amounts of marijuana and had large amounts of marijuana and marijuana
paraphernalia in the home where the money was seized. 883 S.W.2d at 309.

                                             8
detection by drug detection dogs. $43,774.00, 266 S.W.3d at 186 (citations
omitted). However, this fact is of limited probative value in determining whether
the money was used in drug trafficking. See id.10

       The State further contends the money was intentionally concealed because it
was inside a part of the bag not designed to store personal items. Simply
possessing and hiding a quantity of cash is insufficient to show a connection
between cash and illegal drugs. $130,510.00 in U.S. Lawful Currency v. State, 266
S.W.3d 169, 176 (Tex. App.—Texarkana 2008, pet. denied); see also Cuellar v.
United States, 553 U.S. 550, 563 (2008) (“[M]erely hiding funds during
transportation is not sufficient to violate the [federal money laundering] statute,
even if substantial efforts have been expended to conceal the money.”). The State
likens this situation to hiding the money in a “hidden compartment.” Cf.
$43,774.00, 266 S.W.3d at 180, 187 (noting money was stored in compartment in
car “installed for the purpose of secreting items”). The money in this case,
however, was in an outside zippered pocket at the bottom of the bag.11 Simply
placing cash inside luggage to keep it safe when traveling does not support a
connection to a drug crime.

       Previous Contact with Drugs. The State asserts that the alert from its
police dog, Diego, to the bag is some evidence that the money had recently been
near a large amount of narcotics. However, Diego’s handler conceded that Diego’s

       10
          The court in $43,744.00 noted that wrapping cash in cellophane has “some probative
value” but “does not prove a connection to drug trafficking.” 266 S.W.3d at 186. The court
concluded that the evidence of a compartment installed inside a car “for the purpose of secreting
items, together with [a] positive dog alert on that compartment” supported a finding that the
seized money was derived from or intended for use in distribution or possession of a controlled
substance. Id. at 186-87.
       11
          Enriquez’s counsel asked the testifying officer, “This is the zipper out in plain view.
This isn’t one of those trick briefcases where you lift up and there is a hidden compartment
underneath. Is that correct?” The officer responded, “Yeah.”

                                               9
alert did not indicate whether the amount of narcotics would be enough to establish
a felony offense and it establishes only a suspicion that narcotics were in or around
the bag—the presence of narcotics would need to be verified through further
testing. The State did not conduct further testing of the bag or the money. The
handler further conceded that Enriquez’s bag could have been next to another bag
that had narcotics in it, such as another bag in the overhead bin in the bus. Also,
despite the State’s assertion to the contrary, the record does not indicate whether
the money was in the bag when Diego alerted to it.12 Diego did not alert on the
money, and there is no evidence of when or where the bag would have come into
contact with illegal substances. See $136,205.00 (Johnson) v. State, 848 S.W.2d
888, 891 (Tex. App.—Houston [14th Dist.] 1993, no writ) (holding jury’s finding
that money in bank safe deposit box was contraband was not supported by
factually sufficient evidence when safety deposit box was located “a distance
away” from marijuana, despite fact that canine alerted to safety deposit box).

         The relevance of a dog alert in the forfeiture context has been the subject of
considerable debate. See $43,774.00, 266 S.W.3d at 184. Several courts, including
this court, have held that a positive alert by a drug detection dog, standing alone,
does not constitute evidence that money was used in connection with a drug deal.
See id. (citing $80,631.00 v. State, 861 S.W.2d 10, 12 (Tex. App.—Houston [14th
Dist.] 1993, writ denied)) (other citations omitted). But the supreme court has
authorized the consideration of a drug dog alert to determine if money found in a
search has a substantial connection to criminal activity. State v. $11,014.00, 820
S.W.2d 783, 785 (Tex. 1991). In that case, the respondent was arrested in an
airport, and the canine alerted both on the respondent’s suitcase and directly on the
money. Id. at 784-85. Here, Diego did not alert on the money. We conclude this
         12
              Diego’s handler testified he did not know if the money was in the bag at the time of the
alert.

                                                   10
case is more akin to $80,631.00, in which we concluded that a canine alert on a
briefcase did not constitute evidence that money was used in connection with a
drug deal.13 861 S.W.2d at 12.

       The State apparently relies on the logic that a violation of the drug laws
occurred at some time in the past when the bag came into contact with narcotics or
was handled by someone using narcotics. See $80,760.00, 781 F. Supp. at 476.
There is no evidence that Enriquez caused the bag to come into contact with
narcotics. See id. Importantly, the State did not seize narcotics from Enriquez;
rather, the sole evidence of narcotics came from the scent on the bag.14 See id. This
does not establish the money was used or intended to be used in or derived from
the commission of any of the offenses submitted to the jury.15 See id.; see also

       13
          We stated, “The fact that the dog alerted to the briefcase, standing alone, does not
constitute evidence that the currency was used in connection with a drug deal or criminal
investment.” $80,631.00, 861 S.W.2d at 12. However, we affirmed the trial court’s forfeiture
finding based on the respondent’s admission that he had been involved in a drug deal. Id.
       14
           Assuming for argument’s sake that the money was in the bag when Diego alerted to it,
we note that residue from narcotics may contaminate a large portion of the currency in
circulation. See $80,760.00, 781 F. Supp. at 475. Several federal courts have expressed concern
that these alerts are unreliable indicators of a substantial connection with drug trafficking in the
forfeiture context. See, e.g., United States v. $10,700.00 in U.S. Currency, 258 F.3d 215, 230 (3d
Cir. 2001) (noting that “several of our sister circuits recently have called into question the
evidentiary significance of a positive reaction to currency in determining whether there is
probable cause to forfeit the money in light of studies indicating that a large percentage of United
States currency is contaminated with sufficient traces of drug residue to cause a canine to ‘alert’
to it”); United States v. $5,000 in U.S. Currency, 40 F.3d 846, 849 (6th Cir. 1994) (finding “the
evidentiary value of the narcotics dog’s alert to be minimal” in light of evidence regarding
narcotics contamination of currency); United States v. U.S. Currency, $30,060.00, 39 F.3d 1039,
1043 (9th Cir. 1994) (finding that in light of currency contamination, “the continued reliance of
courts and law enforcement officers on [a dog alert] to separate ‘legitimate’ currency from ‘drug-
connected’ currency is logically indefensible”). Diego’s handler testified, “[d]epending upon the
potency level of the narcotic depends on how long it’s going to take to dissipate.”
       15
          We acknowledge that we held in $136,205.00, 848 S.W.2d at 891, and the Texarkana
Court of Appeals held in $130,510.00, 266 S.W.3d at 175, that a canine alert was sufficient to
overcome a legal sufficiency challenge. However, in the first case, a large amount of marijuana
and drug paraphernalia were found in the respondent’s house. $136,205.00, 848 S.W.2d at 890.
In the second case, both respondents had prior criminal records for possession of large amounts
                                                11
Deschenes v. State, 253 S.W.3d 374, 384 n.19 (Tex. App.—Amarillo 2008, pet.
ref’d) (“A positive alert by a drug detection dog, standing alone, does not
constitute evidence that money was used in connection with a drug deal.”). We
may not credit evidence of facts that are not proven but only surmised. See
$130,510.00, 266 S.W.3d at 177.

       Suspicious Activity Consistent with Drug Trafficking. Enriquez did not
offer any explanation regarding the money. He was traveling on the same bus
sitting next to another man who was transporting money wrapped and concealed in
the same way in a similar amount and similar denominations. Both men were
carrying bus tickets that had different names from the names on their
identifications, but there is no evidence that the men misrepresented their identities
to the officers. The State contends that this activity is consistent with that of a drug
trafficker. Drug courier profile characteristics are of little value in the forfeiture
context, however, without other persuasive evidence establishing that the money
was used in or intended to be used in or constituted proceeds of delivering drugs.16
$80,760.00, 781 F. Supp. at 475 (“[Drug courier] profile characteristics ‘describe a
very large category of presumably innocent travelers, who would be subject to
virtually random seizures were the court to conclude that as little foundation as [the
profile characteristics] could justify a seizure.’” (quoting Reid v. Georgia, 448 U.S.
438, 441 (1980)); see also Deschenes, 253 S.W.3d at 385 (“The mere fact that a
person’s actions match a drug courier profile and that person is carrying a large


of marijuana. $130,510.00, 266 S.W.3d at 175. Here, there is no such evidence. We further note
that both courts in the cited cases held that canine alerts were factually insufficient evidence to
show the money was contraband. $130,510.00, 266 S.W.3d at 176-77; $136,205.00, 848 S.W.2d
at 891.
       16
          The trial court overruled Enriquez’s objections to testimony regarding drug courier
profile characteristics on the basis that this testimony is not relevant, is prejudicial, and involves
“character bad acts of others.” Enriquez had a running objection to such testimony.

                                                 12
amount of money that might be involved in some illegal activity is insufficient to
establish probable cause to justify forfeiture.”).

      The route the men were traveling was a well-known drug smuggling route,
according to the officers. But the evidence that the men were traveling on a certain
route and that they were nervous is not probative. $43,774.00, 266 S.W.3d at 184;
see also $130,510.00, 266 S.W.3d at 172 n.5. As our sister court noted regarding
officer testimony involving drug corridors:

      [W]e are skeptical that such evidence offers any probative value to
      support the State’s case. In numerous forfeiture cases, we have seen
      testimony from various officers that a large number of roads in east
      Texas are “drug corridors” and no suggestion that any east Texas
      roads are not drug corridors.
$130,510.00, 266 S.W.3d at 172 n.5.

      Finally, the State argues that appellant acted suspiciously—he was looking
around, “creeping away” from officers, and clutching his bag tightly; he began
talking to a stranger as if he knew him and acted “[e]xtremely nervous.”
Suspicious activity is not enough: the behavior must be consistent with drug
trafficking. See $43,774.00, 266 S.W.3d at 186-87. One of the officers conceded
that many of Enriquez’s reactions, which related to being nervous around the
officers, were equally consistent with innocent behavior.17 Facts traditionally seen

      17
           Enriquez’s counsel elicited the following testimony on cross-examination:
      Q.        If you were holding $31,000 in cash, would you hold your bag tightly?
      A.        Probably.
      Q.        Okay. Would you leave it on the bus bench when you go to the restroom
                and leave it alone?
      A.        No. . . .
      Q.        Is there anything suspicious about . . . making small talk?
      A.        No.

                                                 13
as suggesting innocence do not justify a seizure. See $130,510.00, 266 S.W.3d at
172 n.5 (“We . . . find it questionable that facts traditionally seen as suggesting
innocence become suspicious when the government may be able to confiscate an
item of substantial value by recasting such facts.”).

      Amount of Money. Possession of a large sum of money is not illegal. Id. at
177; see also $136,205.00, 848 S.W.2d at 891; Deschenes, 253 S.W.3d at 385
(“The mere fact that a person’s actions match a drug courier profile and that person
is carrying a large amount of money that might be involved in some illegal activity
is insufficient to establish probable cause to justify forfeiture.”). Possessing cash is
not evidence of money laundering or any other drug offense. See $130,510.00, 266
S.W.3d at 176. One of the officers conceded that migrant workers going back to
Mexico often carry cash, usually in smaller amounts. We are not persuaded that the
possession of $30,000, without other persuasive circumstantial evidence such as


      Q.     Does that make you a drug courier?
      A.     No.
      Q.     Okay. And then you said he was stretching and lifting his legs. That was a
             suspicious sign to you?
      A.     Yes, sir.
      Q.     And you said it was a day-and-a-half bus ride. You don’t think that he
             would want to stretch his legs out after a . . . bus ride from Atlanta?
      A.     [W]ell, yeah. I guess it is a long way, but that’s just one of our indicators. .
             ..
      Q.     . . . And then you said . . ., “He was looking around suspicious.”
      A.     Yes.
      Q.     [C]ould it be possible he was looking for his ride or somebody to pick him
             up?
      A.     Probably.
      Q.     And is it just as likely he was looking around for his ride as it is that he’s a
             drug courier?
      A.     Maybe he was looking for his ride. I don’t know.

                                               14
the presence of drugs or drug paraphernalia, shows that the money was used in or
intended to be used in or constituted proceeds of delivering drugs.18 See
$80,760.00, 781 F. Supp. at 473 (noting “a large amount of money, found in
combination with other persuasive circumstantial evidence, particularly the
presence of drug paraphernalia, is frequently held sufficient to establish probable
cause” (emphasis added)).

       Expert Testimony on Probable Cause to Seize Property.19 A “seizure” of
property occurs when there is some meaningful interference with an individual’s
possessory interests in that property. United States v. Jacobsen, 466 U.S. 109, 113
(1984); Castleberry v. State, 425 S.W.3d 332, 334 (Tex. App.—Houston [1st Dist.]
2011, pet. ref’d). This factor examines evidence of the officers’ expertise to
determine whether there was probable cause to seize the subject property. See
$43,774.00, 266 S.W.3d at 186.

       Probable cause, in the context of civil forfeiture, is “a reasonable belief that
a substantial connection exists between the property to be forfeited and the
criminal activity defined by the statute.” State v. $90,235, 390 S.W.3d 289, 293
(Tex. 2013). The officers opined that, in their experience, they believed the money
to be derived from drug trafficking based on Enriquez’s actions and the canine
alert. They, however, made the following concessions:

             Although Enriquez engaged in suspicious behavior that fit the drug

       18
          The State also argues that because the money included many twenty-dollar bills, it was
“connected to and derived from drug trafficking.” The only case cited by the State, United States
v. $242,484.00, 389 F.3d 1149, 1160 (11th Cir. 2004), in support of this argument is
distinguishable on its face because it dealt with approximately eight times the amount of money
Enriquez was carrying, weighing more than 40 pounds.
       19
           This factor, which is related to probable cause, is not strictly necessary to our analysis.
However, we include it in our analysis because a connection between the money and criminal
activity is relevant in determining whether the State established the money was contraband.

                                                 15
              courier profile, many of his actions also were consistent with an
              innocent person’s actions.

            There was no evidence that a drug deal occurred, even though the
             State’s theory at trial was that the money was the proceeds of an
             unspecified drug deal in Atlanta.

            The pocket in the bag holding the money was not hidden.

            Officers found no drugs in Enriquez’s or the other man’s bag.

            Migrant workers returning to Mexico often carry cash, although
             typically a smaller amount.

            The length of time since Enriquez’s bag had been near narcotics
             depended on the potency level of the narcotics, and that could not be
             determined by Diego’s alert on the bag.

            Diego’s handler did not know if the money was in the bag when
             Diego alerted on it.

            The bag recently could have been near another bag that held narcotics.

            The alert does not prove the presence of narcotics, but only establishes
             a suspicion that narcotics were in or around the bag.

            No tests were performed on the bag or the money, which was
             necessary to determine whether they had been in the presence of
             narcotics.
       Accordingly, the officer testimony does not establish that the money was
used or intended to be used in or derived from the commission of the offenses
submitted to the jury. See $80,760.00, 781 F. Supp. at 478 (“When the government
seeks forfeiture of currency under [federal law] it must do more than recite the
drug-courier profile and subject the currency to a narcotics detection dog’s sniff
test.”).




                                          16
                                        Conclusion

       It is significant that no drugs or drug paraphernalia were found in this case.
We note that the cases cited by the State to support its argument that the jury’s
finding on contraband is supported by legally sufficient evidence either deal with
property found near illicit drugs or are otherwise distinguishable.20 Moreover,
Enriquez was not tried for a crime because the grand jury no-billed the charge
against him. See 80,631.00, 861 S.W.2d at 12-13 (noting the following evidence
relied on by the State was “inherently suspicious”: respondent was “never charged
with the drug deal he allegedly confessed to committing,” his confession was not
recorded, and officer admitted he could only speculate that currency was derived
from drug transaction). This is not a case in which officers found the property
along with illegal drugs or determined through investigation that it is very closely
related to illegal drug dealing. See $80,760.00, 781 F. Supp. at 472-73. Weighing
the factors in light of the State’s responsibility to present evidence establishing the
money was used or intended to be used in or derived from the commission of
possession or delivery of drugs or money laundering, we conclude that the
evidence is legally insufficient to support the jury’s finding on contraband.

       We recognize that forfeiture law, as a civil matter, is subject to a lesser
standard of proof than criminal law. See $43,774.00, 266 S.W.3d at 188; see also
One (1) 2002 Cadillac Deville, VIN 1G6KD54Y42U228530 v. State, No. 04-12-

       20
          See $8,300.00 in U.S. Currency v. State, No. 05-11-00901-CV, 2012 WL 5359229, at
*1 (Tex. App.—Dallas Nov. 1, 2012, no pet.) (mem. op.) (noting officers found marijuana in car
where money was discovered); $43,774.00, 266 S.W.3d at 187-88 (holding evidence of a secret
compartment in car plus canine alert on compartment supported forfeiture but urging supreme
court to require more than a canine alert to establish a connection between money and illegal
drugs); Antrim v. State, 868 S.W.2d 809, 814 (Tex. App.—Austin 1993, no writ) (noting lab tests
confirmed presence of marijuana residue in box where money was found); $11,014.00, 820
S.W.2d at 785 (finding canine alert on suitcase and money to be legally sufficient evidence
supporting forfeiture).

                                              17
00212-CV, 2012 WL 6618198, at *4 (Tex. App.—San Antonio Dec. 19, 2012, no
pet.) (mem. op.). However, it is not enough to convince a jury that “something is
out of the ordinary”—as the State argued in closing, or that Enriquez was traveling
from Atlanta to Houston, with the wrong person, or looked suspicious. See
$130,510.00, 266 S.W.3d at 177 (“[W]e are charged with crediting only the
evidence that is in the record, not facts that are not proven but only surmised.”).
Even if this evidence could support the jury’s finding of probable cause to seize the
money, an issue we do not reach, it does not establish the money was used or
intended to be used in or derived from the commission of an offense submitted to
the jury and thus subject to forfeiture. See $7,058.84, 30 S.W.3d at 586 (“[T]o
prove that the money was subject to forfeiture for [an offense submitted to the
jury], the State must prove that the money was used or intended to be used in the
commission of, or was proceeds derived from, the [offense].”).

      On these facts, we conclude the State did not present evidence establishing
that the money was contraband. See Cadillac Deville, 2012 WL 6618198, at *4;
see also $80,760.00, 781 F. Supp. at 473. We sustain Enriquez’s second issue as to
the complaint that there is legally insufficient evidence to support the jury’s
finding on contraband. We need not reach Enriquez’s factual sufficiency challenge.
See Tukua Investments, LLC v. Spenst, 413 S.W.3d 786, 802 (Tex. App.—El Paso
2013, pet. denied).

      On appeal, Enriquez seeks a judgment recovering the proceeds seized by the
State, including pre- and post-judgment interest as allowed by law. Because
Enriquez sought that affirmative relief in his answer below, he is entitled to a
judgment requiring the State to return the proceeds. See Megason v. State, 791
S.W.2d 221, 223-24 (Tex. App.—Corpus Christi 1990, writ denied). We reverse
the judgment of the trial court, render judgment ordering the State to return the

                                         18
proceeds to Enriquez, and remand the case to the trial court for proceedings
consistent with this opinion.21 See id. at 224.




                                             /s/    Martha Hill Jamison
                                                    Justice



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




       21
           We note that Enriquez also pleaded in his answer below for interest under article 59.08
of the Code of Criminal Procedure and seeks pre- and post-judgment interest. See Tex. Code
Crim. Proc. Art. 59.08(b) (requiring money placed in interest bearing account by the attorney
representing the State to “be distributed in the same manner as proceeds are distributed”).
Although on appeal Enriquez has asked for interest as allowed by law, he has not directed this
court to any law that permits or requires the award of interest in this circumstance. Upon remand,
the trial court may determine whether Enriquez is entitled to any such interest.

                                               19
