Reversed and Remanded and Opinion filed December 22, 2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00904-CV

   ONE THOUSAND SIX HUNDRED FOUR DOLLARS & NINE CENTS
            ($1,604.09) IN U.S. CURRENCY, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

               On Appeal from the 506th Judicial District Court
                           Waller County, Texas
                    Trial Court Cause No. 11-06-20924

                                 OPINION


      This is an appeal from a trial court’s order granting summary judgment in a
civil forfeiture case. Quincy Deshan Butler, the individual from whom the money
was seized, raises two issues on appeal. In his first issue, Butler argues the trial
court erred in granting summary judgment. We agree because the State did not
meet its burden to prove conclusively that the money was contraband, and it did
not move for summary judgment on the necessary element of probable cause. We
therefore reverse the judgment and remand for further proceedings.

                                  BACKGROUND

      According to the evidence accompanying the State’s summary judgment
motion, Waller County Sheriff’s Deputy Wade Clark received a call from dispatch
instructing him to “be on the lookout” for a suspect involved in a shooting in
Bryan, Texas.    Dispatch described the suspect as an African-American male
driving a white Chevrolet Malibu and told Deputy Clark that the suspect might be
headed toward Houston.     Deputy Clark observed a car matching the description
and pursued it in an attempt to conduct a traffic stop. After exiting the highway,
the suspect came to a stop and parked the car. Deputy Clark got out of his patrol
car and began to give commands to the suspect, but the suspect drove off. The
suspect led Deputy Clark on a high-speed chase, which was eventually joined by
other law enforcement officers, before leaving the road and coming to a stop at a
drainage ditch. The suspect was taken into custody and identified as Quincy
Deshan Butler.

      Officers recovered $1,604.09 from Butler, and a .45 caliber handgun and a
plastic bag containing approximately 26 grams of cocaine from the car. In June
2011, the State filed a notice of seizure and intended forfeiture of the $1,604.09,
alleging the money was contraband and subject to forfeiture. Butler filed an
answer later that month. In August 2013, Butler pled guilty to possession of a
controlled substance and evading arrest with a vehicle.

      The State filed a traditional motion for summary judgment in the forfeiture
case in June 2014. Butler did not file a response to the State’s motion or an
affidavit attesting to the source of the money. Instead, Butler filed a motion for
continuance requesting additional time to conduct discovery and a motion
requesting enlargement or extension of time to respond to plaintiff’s motion for
                                         2
summary judgment.1 The trial court granted the State’s motion for summary
judgment but did not expressly rule on Butler’s motions. This appeal followed.

                                          ANALYSIS

       In his first issue, Butler argues that the trial court erred in granting the
State’s motion for summary judgment because the State failed to provide
conclusive evidence establishing a nexus between the money and a drug-related
felony or establishing that the money was otherwise proceeds derived from a drug-
related felony.

I.     Standard of review

       We review a trial court’s grant of summary judgment de novo. Exxon Corp.
v. Emerald Oil & Gas Co., 331 S.W.3d 419, 422 (Tex. 2010). A traditional motion
for summary judgment is properly granted if the movant establishes that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law.
Tex. R. Civ. P. 166a(c); Gastar Exploration Ltd. v. U.S. Specialty Ins. Co., 412
S.W.3d 577, 582 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). We view
the evidence and reasonable inferences therefrom in the light most favorable to the
non-movant. White v. Tackett, 173 S.W.3d 149, 151 (Tex. App.—Fort Worth
2005, no pet.). Evidence favorable to the non-movant will be taken as true in
deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic
Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004).

       With a traditional motion for summary judgment, even if the non-movant
fails to respond to the motion, the movant must establish an entitlement to
summary judgment as a matter of law. Shafighi v. Texas Farmers Ins. Co., No. 14-
12-00082-CV, 2013 WL 1803609, at *4 (Tex. App.—Houston [14th Dist.] Apr.
       1
          Both motions cited to the Federal Rules of Civil Procedure rather than the Texas Rules
of Civil Procedure.

                                               3
30, 2013, no pet.) (mem. op., not designated for publication). Summary judgments
must stand on their own merits, and the non-movant’s failure to answer or respond
cannot supply by default the proof necessary to establish the movant’s right to
traditional summary judgment. Id.

II.    Applicable law

       Property that is contraband is subject to seizure and forfeiture by the State.
Tex. Code Crim. Proc. Ann. art. 59.02(a) (West Supp. 2015). Contraband includes
property of any nature (whether real, personal, tangible, or intangible) that is either
(1) used or intended to be used in the commission of any felony under Chapters
481 or 483 of the Health and Safety Code; or (2) the proceeds gained from the
commission of a felony listed in paragraph (A) or (B) of article 59.01(2).2 Tex.
Code Crim. Proc. Ann. art. 59.01(2)(B)(i)–(ii), (C) (West Supp. 2015).

       The Supreme Court of Texas also requires that the State show probable
cause exists for seizing property. See Fifty–Six Thousand Seven Hundred Dollars
in U.S. Currency v. State, 730 S.W.2d 659, 661 (Tex. 1987). It is that link, or
nexus, between the property to be forfeited and the statutorily defined criminal
activity that establishes probable cause, without which the State lacks authority to
seize a person’s property. Id. (citing Tex. Const. art I, § 9). In the context of a
forfeiture proceeding, probable cause is a “reasonable belief that a substantial
connection exists between the property to be forfeited and the criminal activity
defined by the statute.” Id. The State does not have to prove, however, that a
specific crime was committed. Tex. Crim. Proc. Code Ann. art. 59.05(d) (West
2006) (“A final conviction for an underlying offense is not a requirement for
forfeiture under this chapter.”).

       2
          In its notice of seizure, the State did not allege that money satisfied any of the other
definitions of contraband contained in the statute.

                                                4
       Forfeiture proceedings are tried in the same manner as other civil cases, and
the State has the burden to prove by a preponderance of the evidence that the
property in question is subject to forfeiture. Tex. Code Crim. Proc. Ann. art.
59.05(b) (West 2006). The State must prove that it is more reasonably probable
than not that the seized currency was either intended for use in, or derived from,
one of the offenses listed in the forfeiture statute. $9,050.00 in U.S. Currency v.
State, 874 S.W.2d 158, 161 (Tex. App.—Houston [14th Dist.] 1994, writ denied).

       The State may meet its burden of proof by presenting sufficient
circumstantial evidence. State v. $11,014.00, 820 S.W.2d 783, 785 (Tex. 1991).
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.
$7,058.84 in U.S. Currency v. State, 30 S.W.3d 580, 586 (Tex. App.—Texarkana
2000, no pet.). The State is not required to exclude every possible means by which
an individual might have acquired the money. Id. The court may draw any and all
reasonable inferences from the circumstances shown by the evidence. Id.

III.   The State did not move for summary judgment and offer conclusive
       evidence on all essential elements of forfeiture.
       Applying these principles, we conclude that the State failed to meet its
burden to establish it was entitled to judgment as a matter of law. In its motion for
summary judgment, the State asserts the money is contraband because it was “used
or intended to be used in” the felony offense of “possession with intent to deliver
cocaine,” or alternatively that the money is “the proceeds gained from the
commission of delivery of cocaine.” The summary judgment evidence on this
issue, however, is scant. Butler was pulled over because he was a suspect in a
shooting, not in a crime involving narcotics. The State points to the 26 grams of
cocaine and the firearm found in the car after Butler was taken into custody with


                                         5
the money, and to Butler’s three prior convictions for felony drug offenses.3        The
State does not explain how these facts conclusively show that the money was “used
or intended to be used” in the possession of cocaine, however. As to proceeds,
although the proximity of money to drugs is certainly some circumstantial
evidence from which a fact-finder could infer that the money is proceeds gained
from the previous delivery of other drugs,4 the State has cited no cases holding that
such an inference is conclusive evidence entitling the State to summary judgment.
On these facts, as explained further below, we conclude the inference is not
conclusive evidence that the money is contraband.

       Moreover, the State did not move for summary judgment on the required
element of probable cause. The only ground the State raised in the motion is that
the property was contraband.          The State failed to address how its evidence
conclusively demonstrates a reasonable belief that a substantial connection exists
between the property to be forfeited and any criminal activity. See Fifty–Six
Thousand Seven Hundred Dollars in U.S. Currency, 730 S.W.2d at 661.
Accordingly, the State is not entitled to summary judgment. See Cullins v. Foster,
171 S.W.3d 521, 530 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (“A
plaintiff moving for summary judgment must conclusively prove all essential
elements of its claim.”).

       The State relies on Vasquez v. State, No. 01-04-01221-CV, 2006 WL
2506965 (Tex. App.—Houston [1st Dist.] Aug. 31, 2006, pet. denied) (mem. op.,
not designated for publication), a case from our sister court addressing a challenge
to the legal sufficiency of the evidence to support the trial court’s finding of fact—

       3
            No party objected to the use of Butler’s prior convictions as summary judgment
evidence.
       4
        See Approximately $31,421.00 v. State, No. 14-14-00385-CV, 2015 WL 7730827, at *3
(Tex. App.—Houston [14th Dist.] Nov. 24, 2015, no pet. h.).

                                              6
following a bench trial—that certain seized funds were contraband. Id. at *2. The
court of appeals reviewed the following five factors in concluding that the State
offered more than a scintilla of evidence from which the trial court could
reasonably infer that the funds were contraband: (1) the proximity of the money to
the drugs and to the evidence of drug trafficking; (2) evidence that 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 that there was probable cause to seize the money subject to
forfeiture, e.g., that a substantial connection exists between the property to be
forfeited and the criminal activity. Id. at *4.5

       The State’s reliance on Vasquez is misplaced.               In a challenge to the
sufficiency of the evidence supporting an adverse finding at trial, we view the
evidence in the light most favorable to the finding and indulge every reasonable
inference that would support it. See City of Keller v. Wilson, 168 S.W.3d 802, 822
(Tex. 2005). We credit favorable evidence if reasonable fact-finders could and
disregard contrary evidence unless reasonable fact-finders could not. Id. at 827.
We will reject the legal sufficiency challenge if there is more than a scintilla of
evidence to support the finding.            Univ. Gen. Hosp., LP v. Prexus Health
Consultants, LLC, 403 S.W.3d 547, 550–51 (Tex. App.—Houston [14th Dist.]
2013, no pet.). In a challenge to the trial court’s grant of a traditional summary
judgment, however, we view the evidence and its reasonable inferences in the light
most favorable to the non-movant in determining whether the movant has
conclusively proven all elements of its claim or defense. White, 173 S.W.3d at
151.

       The State’s evidence that the money in this case is contraband is more than a

       5
           See also Approximately $31,421.00, 2015 WL 7730827, at *3.

                                               7
scintilla but less than conclusive, and thus it cannot support the trial court’s
summary judgment. As noted above, the State argues in part that the money is
contraband because it is “proceeds gained from the commission of delivery of
cocaine.” In the State’s view, there is undisputed evidence that Butler possessed
the money while 26 grams of cocaine and a gun were in his car, and therefore, by
inference, the money must be proceeds from a previous delivery of other cocaine.

      This undisputed circumstantial evidence supports opposing inferences
regarding whether the money is or is not proceeds from the delivery of cocaine,
however. For example, the record contains evidence that Butler was suspected of
involvement in a shooting, and the presence of a gun in proximity to the money
could also support an inference that the money was connected to the shooting
rather than previous drug sales.

      If circumstantial evidence will support more than one reasonable inference,
it is for a jury to decide which is more reasonable, subject only to review by the
trial court and the court of appeals to assure that such evidence is factually
sufficient. See Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 648 (Tex. App.—
Houston [14th Dist. 2003, pet. denied). Circumstantial evidence often requires a
fact-finder to choose among opposing reasonable inferences. Id. But it is for a
fact-finder to consider the circumstantial evidence, weigh witnesses’ credibility,
and make reasonable inferences from the evidence it chooses to believe. Id.; see
also City of Keller, 168 S.W.3d at 821 (“Even if evidence is undisputed, it is the
province of the jury to draw from it whatever inferences they wish, so long as more
than one is possible and the jury must not simply guess.”); id. at 814-15 (noting
that reviewing court must consider competing inferences from circumstantial
evidence and that undisputed evidence is conclusive if jurors could draw only one
logical inference from it).

                                        8
       Viewing the evidence and its reasonable inferences in the light most
favorable to the non-movant under the applicable standard of review, we hold that
the trial court erred in granting the State’s motion for summary judgment in this
case. We sustain Butler’s first issue.6

                                         CONCLUSION

       Having sustained appellant’s first issue, we reverse the judgment of the trial
court and remand the case for further proceedings.




                                              /s/       J. Brett Busby
                                                        Justice



Panel consists of Chief Justice Frost and Justices Jamison and Busby.




       6
           Given our disposition of Butler’s first issue, we need not address his second issue
claiming, among other things, that the trial court erred by not granting his motion for
continuance to conduct additional discovery. See Tex. R. App. P. 47.1 (“The court of appeals
must hand down a written opinion that is as brief as practicable but that addresses every issue
raised and necessary to final disposition of the appeal.”). Butler also seems to argue in his brief
that the trial court erred by not honoring his request for appointment of counsel after his attorney
withdrew. Neither the United States Constitution nor the Texas Constitution guarantees a right
to counsel in a civil forfeiture suit, however. Cf. U.S. Const. amend. VI; Tex. Const. art. I, § 10.
The trial court did not err by not appointing counsel for Butler in this case. Approximately
$42,850.00 v. State, 44 S.W.3d 700, 702 (Tex. App.—Houston [14th Dist.] 2001, no pet.).

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