                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00252-CV


ONE (1) 1998 BLUE CHEVROLET                                          APPELLANT
CAMARO

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 393RD DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION1

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      Appellant Brandon Wayne Ball appeals from the trial court‘s order of

forfeiture of his $6,745 replevy bond in lieu of his 1998 blue Chevrolet Camaro.

In two issues, Ball argues that the trial court erred by concluding that the Camaro

was contraband and that the trial court‘s judgment violates the Excessive Fines

Clause of the Eighth Amendment of the United States Constitution. Because we

      1
       See Tex. R. App. P. 47.4.
hold that the evidence was sufficient to show that the vehicle was contraband

and that the forfeiture was not an excessive fine, we affirm.

      On September 8, 2009, Corinth Police Officer Russ Ebsen arrested Ball for

evading arrest or detention using a vehicle.2 On October 1, 2009, the State of

Texas filed a petition for forfeiture of the Chevrolet Camaro owned by Ball, which

Ball had been driving at the time of his arrest. The State alleged that the vehicle

was contraband under article 59.01 of the Texas Code of Criminal Procedure 3

and asked the trial court to order the vehicle forfeited to the State. To obtain the

return of his vehicle pending trial, Ball and his attorney (as surety) made a

replevy bond in the amount of $6,745.

      The criminal case against Ball was resolved while the forfeiture proceeding

was still pending. Under a plea bargain agreement, Ball pled guilty to the lesser

included offense of misdemeanor evading arrest, received deferred adjudication

community supervision for two years, and was ordered to pay a fine of $500.

      At the trial in the forfeiture proceeding, Ebsen testified that while on duty

on the night of September 8, 2009, he received a call from dispatch about a

reckless driver. Dispatch reported that two vehicles—a blue Camaro and a silver

Mustang—might be racing. At the time, Ebsen was parked on the shoulder on

northbound I-35E.    After receiving the call from dispatch, Ebsen saw a blue


      2
       See Tex. Penal Code Ann. § 38.04(a), (b)(1)(B) (West 2011).
      3
       See Tex. Code Crim. Proc. Ann. art. 59.01 (West Supp. 2010).


                                         2
Camaro approaching at a high rate of speed. Using his radar, Ebsen determined

that the vehicle was driving at 108 miles per hour, well above the posted speed

limit of sixty miles per hour. After the Camaro passed him, Ebsen put his car in

drive, turned on his headlights, and entered the flow of traffic to catch up to the

Camaro.        Ebsen then saw the Camaro change lanes and take the Corinth

Parkway exit off of the freeway.

       Ebsen testified that he saw the Camaro run the red light at the intersection

of Corinth Parkway and turn left onto the Parkway.           Ebsen turned on his

emergency lights and his siren. The Camaro continued driving at a high speed

and turned onto a residential street.      The Camaro then turned onto another

residential street, a dead-end, and came to a stop. Ebsen stated that he arrested

Ball for evading arrest or detention with a motor vehicle and that after being given

the warnings required by Miranda v. Arizona,4 Ball answered affirmatively when

asked if he had taken the exit off the freeway in an attempt to get away from the

officer.

       Ball testified that he knew that he was speeding but did not flee from

Ebsen. He further testified that he had seen a car on the side of the road but did

not know it was a police car, although he ―assumed it could have been.‖ He then

stated that he knew that he was driving at a high rate of speed, and so he took

the exit ―so that maybe [he] could avoid getting a speeding ticket.‖            He


       4
           See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).


                                           3
acknowledged that he took the exit to avoid detection from the officer and that he

made a left turn onto Corinth Parkway to get away from the officer. Ball also filed

a trial brief in which he asserted that the vehicle had been stolen and was no

longer in his possession.

      At the conclusion of the hearing, the trial court found that Ball did try to

evade arrest and that because the vehicle had not been returned, the bond

should be forfeited. The trial court signed a judgment of forfeiture, finding that

Ball had failed to return the Camaro to the custody of the State and that the

vehicle was contraband and subject to forfeiture under chapter 59 of the code of

criminal procedure. The trial court ordered Ball or Ball‘s attorney to pay to the

State $6,745 within thirty-one days ―for their failure to adhere to the terms and

conditions of the replevy bond in this matter.‖ Ball then filed this appeal.

      In his first issue, Ball asserts that the trial court made an erroneous

conclusion of law when it found that the Camaro was ―contraband‖ as defined by

chapter 59 of the code of criminal procedure. His argument, however focuses on

whether the State proved by a preponderance of the evidence that the Camaro

was contraband, and he argues that the State produced no more than a surmise

or suspicion that Ball knew that he was fleeing from a peace officer and that the

peace officer was trying to lawfully arrest or detain him. Thus, Ball‘s actual issue




                                          4
appears to be that the evidence was legally insufficient to support the trial court‘s

findings.5 Accordingly, we will review the evidence for legal sufficiency.

      The code of criminal procedure makes contraband subject to forfeiture. 6

The code defines ―contraband‖ to include property that is used in the commission

of a felony under penal code section 38.04.7         Section 38.04 provides that a

person commits an offense if the person ―intentionally flees from a person he

knows is a peace officer attempting lawfully to arrest or detain him,‖ and that

offense is a felony if the actor uses a vehicle while the actor is in flight.8 Thus, if

Ball used his vehicle while in flight from a person he knew was a police officer

attempting lawfully to arrest or detain him, then his vehicle constituted

contraband and became subject to forfeiture. The State had the burden to show




      5
         See Regal Fin. Co., Ltd. v. Tex Star Motors, Inc., No. 08-0148, 2010 WL
3277132, at *7 (Tex. Aug. 20, 2010) (stating that evidence that does nothing
more than create a surmise or suspicion that a fact exists is not legally sufficient);
see also Tex. Code Crim. Proc. Ann. art 59.05(e) (West 2006) (―If the [trial] court
finds that all or any part of the property is subject to forfeiture, the judge shall
forfeit the property to the state.‖) (emphasis added).
      6
       Tex. Code Crim. Proc. Ann. art. 59.02(a) (West Supp. 2010).
      7
       Id. art. 59.01(2)(A)(ii).
      8
       Tex. Penal Code Ann. § 38.04(a), (b)(1)(B), (b)(2)(A) (providing that the
offense is a state jail felony if the actor has not been previously convicted under
that section and a third degree felony if the actor has been previously convicted
under that section).


                                          5
by a preponderance of the evidence that the Camaro was contraband. 9 The

forfeiture statute does not require a final conviction on the underlying offense. 10

         As stated above, Ball testified at the forfeiture hearing that he knew he was

speeding and that he thought the car on the side of the road could have been a

police officer. He further testified that he took the exit off of the freeway ―so that

maybe [he] could avoid getting a speeding ticket.‖ He also acknowledged that he

made a left turn onto Corinth Parkway to get away from the officer. The trial

court also admitted into evidence the video showing the stop from Ebsen‘s in-car

dash camera, in which Ball told the officer that he took the Corinth Parkway exit

because ―I thought you had me,‖ and in which Ball acknowledged after being

Mirandized that he had attempted to get away from the officer and had taken the

Corinth Parkway exit and turned into the neighborhood to avoid being stopped.

Thus, the State provided some evidence, and therefore legally sufficient

evidence, to show that the vehicle was contraband. 11 We overrule Ball‘s first

issue.




         9
       See $43,774.00 U.S. Currency v. State, 266 S.W.3d 178, 182 (Tex.
App.—Texarkana 2008, pet. denied) (―The statute places on the State the burden
of proving, by a preponderance of the evidence, that the item being forfeited is
subject to forfeiture.‖).
         10
             Tex. Code Crim. Proc. Ann. art. 59.05(d).
         11
        See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (setting
out the standard of review for legal sufficiency).


                                             6
      In Ball‘s second issue, he argues that the trial court‘s judgment violates the

Excessive Fines Clause of the Eighth Amendment of the United States

Constitution because the value of the property seized ($6,745) is more than

thirteen times the fine imposed ($500). The Excessive Fines Clause ―limits the

government‘s power to extract payments, whether in cash or in kind, ‗as

punishment for some offense.‘‖12        Traditional civil forfeitures are in rem

proceedings and are not intended to be punishment. The forfeitures are not

considered fines and thus are not subject to the Eighth Amendment‘s prohibition

against excessive fines.13

      But many modern forfeiture proceedings are intended to be punitive, and if

a forfeiture constitutes punishment for an offense, the forfeiture is a ―fine‖ and

therefore subject to the Eighth Amendment. 14 The United States Supreme Court

has held that a forfeiture is unconstitutional as a violation of the Excessive Fines

Clause if the amount of the forfeiture ―is grossly disproportional to the gravity of


      12
          Austin v. United States, 509 U.S. 602, 609–10, 113 S. Ct. 2801, 2805,
(1993).
      13
          United States v. Bajakajian, 524 U.S. 321, 331, 118 S. Ct. 2028, 2035,
(1998).
      14
         Id. at 322, 327–28, 118 S. Ct. at 2033, 2035 (stating that the forfeiture
provision in that case was punitive in that ―[t]he forfeiture serves no remedial
purpose, is designed to punish the offender, and cannot be imposed upon
innocent owners‖); see also Austin, 509 U.S. at 617, 113 S. Ct. at 2809 (noting
that including an innocent owner defense in a forfeiture provision indicates that
the statute is punitive); Tex. Code Crim. Proc. Ann. art. 59.02(e) (providing a
defense to forfeiture for innocent owners).


                                         7
the defendant‘s offense.‖ 15 That court did not set out specific factors to consider

in determining whether a fine is grossly disproportionate. But in deciding that the

fine was grossly disproportionate in that case, it considered such factors as the

nature of the crime (in that case, solely a reporting offense), whether the

defendant fit into the class of persons for whom the statute was principally

designed, whether the defendant‘s offense was related to other illegal activities,

the maximum sentence and fine that could be assessed for the offense and how

much culpability the penalties reflect, and the harm that the defendant caused. 16

No single test has become a standard in making the ―grossly disproportionate‖

determination,17 but the Texas courts that have considered this issue have

applied these same factors.18       We conduct a de novo review to determine

whether the forfeiture is grossly disproportionate. 19


      15
        Bajakajian, 524 U.S. at 337, 118 S. Ct. at 2038.
      16
        Id. at 337–39, 118 S. Ct. at 2038; see also 1992 BMW Vin
WBABF4313NEK00963/Brandon Lee Thompson v. State, No. 04-07-00116-CV,
2007 WL 2608364, at *1 (Tex. App.—San Antonio Sept. 12, 2007, no pet.) (mem.
op.) (applying Bajakajian to determine whether a forfeiture was grossly
disproportional and considering ―(1) the nature of the offense; (2) the relationship
of the offense to other illegal activities; (3) whether a defendant was one of the
class of persons addressed by the forfeiture statute; (4) the maximum sentence
and fine recommended or permitted for the offense; and (5) the harm caused by
the offense‖).
      17
         Com. v. Real Prop. & Improvements Commonly Known As 5444 Spruce
St., Phila., 832 A.2d 396, 403 n.7 (Pa. 2003) (comparing the differing approaches
across jurisdictions).
      18
       See 1992 BMW, 2007 WL 2608364, at *1; Vasquez v. State, 01-04-
01221-CV, 2006 WL 2506965, at *6 (Tex. App.—Houston [1st Dist.] Aug. 31,

                                          8
      Assuming without deciding that article 59.02‘s forfeiture provision is

punitive and is therefore a fine subject to the Eighth Amendment, the fine was not

prohibitively excessive. Ball is one of the class of persons addressed by article

59.02—persons who commit certain specified felonies, in this case, evading

arrest or detention with a vehicle. The offense in this case is a state jail felony,

and the permissible fine for the offense of $10,000, with a possible sentence of

confinement of up to two years, 20 reflects the legislature‘s determination that the

offense is a serious one. The State ultimately entered into a plea bargain with

Ball under which he was sentenced for the misdemeanor offense rather than the

state jail felony, which is some evidence that the State may have considered Ball

to be less culpable than other violators of section 38.04. But unlike in Bajakajian,

Ball‘s offense was more serious than just a failure to report information, and a

Class A misdemeanor offense (to which Ball pled guilty) is still eligible for

punishment of confinement up to a year and a fine of up to $4,000.21           And



2006, pet. denied) (mem. op.) (considering substantially the same factors); One
Car, 1996 Dodge X-Cab Truck White in Color 5YC-T17 VIN
3B7HC13Z5TG163723 v. State, 122 S.W.3d 422, 425 (Tex. App.—Beaumont
2003, no pet.) (appearing to apply the same Bajakajian factors); see also United
States v. $64,000 in Money Orders & Cashiers Check, CIV. A. H-07-3691, 2009
WL 2970504, at *1 (S.D. Tex. Sept. 9, 2009).
      19
       Bajakajian, 524 U.S. at 336–37, 118 S. Ct. at 2037–38; One Car, 122
S.W.3d at 427.
      20
        Tex. Penal Code Ann. § 12.35 (West 2011).
      21
        See Tex. Penal Code Ann. § 12.21 (West 2011).


                                         9
importantly, the amount being forfeited is less than twice the fine that Ball could

have received for his misdemeanor conviction and is less than the $10,000 fine

that could have been assessed against Ball upon conviction of the felony

offense.22 Considering the circumstances of the case, we cannot say that the

forfeiture was grossly disproportionate to the gravity of Ball‘s offense.       We

overrule Ball‘s second issue.

      Having overruled both of Ball‘s issues, we affirm the trial court‘s judgment.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT, J.; and DIXON W. HOLMAN (Senior
Justice, Retired, Sitting by Assignment).

DELIVERED: August 4, 2011




      22
         See $27,877.00 Current Money of U.S. v. State, 331 S.W.3d 110, 122
(Tex. App.—Fort Worth 2010, pet. filed) (assuming without deciding that civil
forfeiture of drug proceeds is subject to the Excessive Fines clause and holding
that forfeiture of an amount 2.3 times the maximum fine was not excessive); see
also U.S. v. Wallace, 389 F.3d 483, 486 (5th Cir. 2004) (upholding forfeiture of
$30,000 airplane when the statutory maximum fine for failure to register the
airplane was $15,000).


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