Affirmed and Opinion Filed April 20, 2015




                                             Court of Appeals
                                                              S     In The


                                      Fifth District of Texas at Dallas
                                                         No. 05-13-01502-CV

$8,074.68 IN UNITED STATES CURRENCY; 40 "8 LINER" MACHINES; 3 WALMART
                  GIFT CARDS; AND MISC. PAPERS, Appellant
                                   V.
                       THE STATE OF TEXAS, Appellee

                                  On Appeal from the 380th Judicial District Court
                                               Collin County, Texas
                                      Trial Court Cause No. 380-02636-2013

                                            MEMORANDUM OPINION
                     Before Justices Francis and Myers, and Chief Justice Thomas, Retired1
                                   Opinion by Chief Justice Thomas, Retired
            This is a civil forfeiture case. Interested party Jack Fairchild appeals the trial court’s final

judgment forfeiting $8,074.68 in United States currency, forty “8 liner” machines, three Walmart

gift cards, and miscellaneous paperwork to the State as gambling proceeds, devices, equipment,

and paraphernalia. In one issue, Fairchild asserts the trial court erred in overruling his objection

to the State’s evidence at the show cause hearing. Because all dispositive issues are settled in

law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial

court’s judgment.

            Sergeant Jeff Brownrigg investigated gambling-related offenses and illegal gambling

enterprises for the Collin County Sheriff’s office. On June 13, 2013, Brownrigg applied for a

1
    The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by assignment.
search and seizure warrant to search the Triple Crazy Game Room, located at 865 Audie Murphy

Parkway, Farmersville, Texas, for gambling devices, equipment, and paraphernalia used in the

commission of an offense. In support, Sergeant Brownrigg attached a sworn affidavit, providing

facts and circumstances personally known to him and other law enforcement officers that led him

to believe that gambling devices or evidence of gambling offenses would be found at that

location. The trial court found that Brownrigg’s affidavit demonstrated probable cause for his

belief that gambling offenses were being committed at the Triple Crazy Game Room, and issued

a search and seizure warrant. Brownrigg executed the warrant the same day, seizing forty “8

liners,” United States currency, gift cards, and various documents from the Triple Crazy Game

Room.

        On July 9, 2013, the State filed its motion for forfeiture of gambling proceeds, devices,

equipment, and paraphernalia. The motion also provided written notice that the State would not

seek prosecution for offenses related to the seizure. The trial court sent notice to the person

found in possession of the seized property, stating that anyone interested in contesting forfeiture

should appear and show cause why the seized property should not be forfeited or destroyed.

Fairchild entered an appearance and filed an answer as an interested person, opposing the

forfeiture.

        At the show cause hearing, the State offered a certified copy of the search and seizure

warrant, the affidavit for search warrant, and the return and inventory (collectively State’s

Exhibit 1), and argued the burden had shifted to Fairchild to show cause why the seized property

should not be forfeited or destroyed. In response, Fairchild challenged the existence of probable

cause for the search warrant because Brownrigg’s affidavit was not based on personal

knowledge.    He also argued that State’s Exhibit 1 was inadmissible because Brownrigg’s

affidavit was based on speculation, conjecture, and hearsay.        Fairchild further argued that

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because State’s Exhibit 1 was not admissible evidence, the State had not met its burden of proof

and the burden of proof had not shifted to Fairchild to prove the property was not subject to

forfeiture. The trial court overruled Fairchild’s objection and admitted State’s Exhibit 1 into

evidence. Neither side presented any further evidence, and the trial court ordered the forfeiture

of the seized items. Fairchild now appeals the trial court’s judgment.

       In a single issue, Fairchild contends the trial court erred by admitting State’s Exhibit 1

into evidence at the show cause hearing because the affidavit constituted hearsay and was not

competent, admissible evidence. Fairchild further contends that because State’s Exhibit 1 was

the only evidence offered by the State at the show cause hearing, the trial court erred in ordering

the property forfeited. Importantly, Fairchild does not challenge the trial court’s decision to

issue the search warrant and does not ask that we review the trial court’s decision to issue the

warrant.

       A civil forfeiture proceeding under chapter 18 of the Texas Code of Criminal Procedure

is an in rem proceeding. Hardy v. State, 102 S.W.3d 123, 127 (Tex. 2003) (citing State v.

Rumfolo, 545 S.W.2d 752, 754 (Tex. 1976)). Article 18.18(b) authorizes forfeiture when the

person found in possession of the property has not been convicted or prosecuted following a

seizure. See TEX. CODE CRIM. PROC. ANN. art. 18.18(b) (West Supp. 2014). As such, it is an

action against the property itself, not against the owner, and does not involve the conviction of

the owner or possessor of the property seized. See Hardy, 102 S.W.3d at 127. In Hardy, the

Texas Supreme Court explained how the burden of proof is allocated at each stage of a civil

forfeiture proceeding under chapter 18. 102 S.W.3d at 127–30.

       A forfeiture proceeding is initiated when the State obtains a search warrant based on a

sworn affidavit averring sufficient facts to satisfy the issuing magistrate that probable cause

exists for its issuance. See TEX. CODE CRIM. PROC. ANN. art. 18.01(b) (West Supp. 2014); see

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also Hardy, 102 S.W.3d at 129; In re Seizure of Gambling Proceeds and Devices, 261 S.W.3d

439, 444 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). In the context of civil forfeiture,

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.” State v. Ninety Thousand Two

Hundred Thirty-Five Dollars and No Cents in U.S. Currency and 2000 Black Lincoln Navigator

VIN: 5LMPU28A7YLJ10865, 390 S.W.3d 289, 293 (Tex. 2013) (quoting United States v.

$364,960.00 in U.S. Currency, 661 F.2d 319, 323 (5th Cir. 1981)). The facts submitted for the

magistrate’s probable cause determination are those contained within the four corners of the

affidavit, and they are to be read in a common-sense and realistic manner. State v. McLain, 337

S.W.3d 268, 271 (Tex. Crim. App. 2011). A magistrate may draw reasonable inferences from

the facts stated in the affidavit. Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007).

“Once the State has established probable cause to initiate a forfeiture proceeding, the State has

met its burden under article 18.” Hardy, 102 S.W.3d at 129. At that point, the burden shifts to

the interested party to prove that the property is not subject to forfeiture under article 18.18(f).

Id.

       In this case, the State filed a sworn affidavit, and the magistrate issued the warrant. Once

the State satisfied the magistrate that it had probable cause for the warrant, the State’s burden

was met. See id. at 130. The burden then shifted to Fairchild to prove by a preponderance of the

evidence that the property seized was not illegal gambling proceeds, devices, equipment, and

paraphernalia. See TEX. CODE CRIM. PROC. ANN. art. 18.18(f); Hardy, 102 S.W.3d at 129.

       At the show cause hearing, Fairchild first argued that the search warrant should be

reviewed because the affidavit on which it was based was “replete with hearsay statements from

the Affiant.”   When the State offered State’s Exhibit 1 into evidence, Fairchild’s counsel

objected, pointed out various hearsay statements in the affidavit, and argued that the affidavit

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should not be admitted into evidence at the show cause hearing. On appeal, Fairchild discusses

the requirements for a proper affidavit; however, Fairchild limits his discussion to the rules of

civil procedure dealing with summary judgment affidavits, and cases involving affidavits

provided in support of summary judgment and other civil motions. Fairchild fails to address

what is required of an affidavit in support of a search and seizure warrant.

       Brownrigg’s affidavit for search warrant states that Brownrigg received information

regarding the Triple Crazy Game Room from other police officers. Several officers informed

Brownrigg they personally observed gambling devices at the location; other officers provided

Brownrigg with information regarding gambling activities at the location. In presenting the facts

supporting an affidavit for a search warrant, a police officer does not have to rely solely on his

own personal knowledge but can reasonably rely upon a trustworthy source to conclude that

evidence of a crime may presently be found in a specified place. See Cassias v. State, 719

S.W.2d 585, 587 (Tex. Crim. App. 1986). “Observations of fellow officers of the Government

engaged in a common investigation are plainly a reliable basis for a warrant.” Moreno v. State,

415 S.W.3d 284, 288 n.4 (Tex. Crim. App. 2013) (citing United States v. Ventresca, 380 U.S.

102, 110–11 (1965)).      Even double hearsay may be used to show probable cause if the

underlying circumstances indicate a substantial basis for crediting each level of hearsay. Lowery

v. State, 843 S.W.2d 136, 140 (Tex. App.—Dallas 1992, writ ref’d). We find no legal support

for Fairchild’s argument that the search affidavit should be stricken merely because it consisted

of hearsay statements. See Cassias, 719 S.W.2d at 587; Allen v. State, 899 S.W.2d 296, 299

(Tex. App.—Houston [14th Dist.] 1995, writ dism’d). Furthermore, as discussed above, the

State did not have a burden to show probable cause at the show cause hearing. See Hardy, 102

S.W.3d at 130. Probable cause was established when the trial court issued the search and seizure

warrant. Id. Thus, any alleged defect in the State’s evidence at the show cause hearing was

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harmless. We conclude the trial court did not abuse its discretion by overruling Fairchild’s

objection to the admissibility of State’s Exhibit 1 at the show cause hearing. See TEX. R. APP. P.

44.2(b) (if an error does not affect substantial rights, it must be disregarded); see also Bourque v.

State, 156 S.W.3d 675, 676–77 (Tex. App.—Dallas 2005, pet. ref’d).

       Fairchild had the burden of proof at the show cause hearing. See Hardy, 102 S.W.3d at

129; see also State v. One Super Cherry Master Video 8-Liner Machine, 102 S.W.3d 132, 133

(Tex. 2003).     Article 18.18(f) provides that unless the interested party “proves by a

preponderance of the evidence that the property or proceeds is not gambling equipment, altered

gambling equipment, gambling paraphernalia, gambling device, gambling proceeds . . . and that

he is entitled to possession, the magistrate shall dispose of the property or proceeds . . . .” TEX.

CODE CRIM. PROC. ANN. art. 18.18(f).         Fairchild readily admits he did not introduce any

evidence to show why the seized property should not be forfeited. Accordingly, we conclude the

trial court did not err in ordering the forfeiture of the property. See Hardy, 102 S.W.3d at 129.

       We overrule Fairchild’s issue and affirm the trial court’s judgment.




131502F.P05
                                                      /Linda Thomas/
                                                      LINDA THOMAS
                                                      JUSTICE




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

$8,074.68 IN UNITED STATES                           On Appeal from the 380th Judicial District
CURRENCY; 40 "8 LINER" MACHINES;                     Court, Collin County, Texas
3 WALMART GIFT CARDS; AND MISC.                      Trial Court Cause No. 380-02636-2013.
PAPERS, Appellant                                    Opinion delivered by Justice Thomas.
                                                     Justices Francis and Myers participating.
No. 05-13-01502-CV         V.

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 JACK FAIRCHILD.


Judgment entered April 20, 2015.




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