      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00325-CV



                              $485.00 in U.S. Currency, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
            NO. 232870, HONORABLE RICK MORRIS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Archie Terrell Scaife appeals the trial court’s judgment forfeiting the sum of

$485 in cash and 3.9 grams of crack cocaine to the State of Texas pursuant to article 59.02 of

the Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 59.02. For the following reasons,

we affirm the trial court’s judgment regarding the cocaine and reverse and render regarding the cash.

               Scaife asserts that the trial court erred in ordering the forfeiture because the State

did not meet its burden to prove by a preponderance of the evidence that the seized property was

contraband and, therefore, subject to forfeiture. See id. arts. 59.02(a), .03(a)-(b), .05(b); State v.

Ninety Thousand Two Hundred Thirty-Five Dollars & No Cents in U.S. Currency ($90,235),

390 S.W.3d 289, 293 (Tex. 2013). “Contraband” is property of any nature used in the commission

of various enumerated crimes, including any felony under chapter 481 of the Texas Health and

Safety Code (the Texas Controlled Substances Act). Tex. Code Crim. Proc. art. 59.01. Besides
proving that the property is subject to forfeiture, the State must also establish that its seizure was

justified by probable cause. See State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991). Probable

cause in a forfeiture proceeding is “a reasonable belief that a ‘substantial connection exists between

the property to be forfeited and the criminal activity defined in the statute.’” Fifty-Six Thousand

Seven Hundred Dollars in U.S. Currency v. State, 730 S.W.2d 659, 661 (Tex. 1987) (quoting

United States v. Three Hundred Sixty Four Thousand Nine Hundred Sixty Dollars in U.S. Currency,

661 F.2d 319, 323 (5th Cir. 1981)).

               It is clear that the 3.9 grams of cocaine is contraband. See Tex. Health & Safety Code

§§ 481.102 (cocaine is among controlled substances comprising Penalty Group 1), .115(a), (c)

(person commits third-degree felony if he knowingly or intentionally possesses controlled substance

listed in Penalty Group 1 in amount between one and four grams); Tex. Code Crim. Proc. art. 59.01

(contraband includes any property used in commission of any felony under chapter 481 of Controlled

Substances Act). The fact that Scaife was in possession of a controlled substance is supported by

the seizing officer’s affidavit, which avers that the officer “seized” the cocaine “from the suspect,

[Scaife].” Moreover, the Controlled Substances Act provides that the State may seize and “summarily

forfeit”—that is, without the necessity of any court action, court order, or further proceedings—any

controlled substance. Tex. Health & Safety Code §§ 481.151, .153(a) (controlled substance that

is possessed in violation of chapter 481 is subject to seizure and summary forfeiture to State).

Accordingly, we affirm the district court’s forfeiture judgment with respect to the cocaine.

               However, we agree with Scaife that there was legally insufficient evidence before

the trial court to support forfeiture of the cash. Evidence is legally insufficient when (a) there is a



                                                  2
complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to

prove a vital fact is not more than a mere scintilla, or (d) the evidence conclusively establishes the

opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). The State had

the burden of proving by a preponderance of the evidence that the $485 was used in the commission

of a felony, was the proceeds gained from the commission of a felony, or was acquired with such

proceeds. See Tex. Code Crim. Proc. art. 59.01.

               The only evidence in the record supporting a finding that the cash was contraband is

the affidavit of Officer Ronnie Supak with the Killeen Police Department. The entirety of the relevant

portion of Officer Supak’s affidavit reads:


       I have knowledge of the facts asserted below as a result of the execution of a search
       warrant that was served on October 30, 2008, at 1012 Wells Circle, Apartment 5, in
       Killeen, Bell County, Texas.

       On October 30, 2008, I seized the cash sum of $485.00 and approximately 3.9 grams
       Cocaine from the suspect, ARCHIE TERREL [sic] SCAIFE.

       Your affiant believes this property, further described in attachment “A” is contraband
       as defined in Chapter 59 of the Texas Code of Criminal Procedure.


               The affidavit contains no further facts supporting Officer Supak’s “belief” that the

cash was contraband, for example evidence supporting the issuance of the search warrant, and the

appellate record does not contain any evidence from the criminal proceedings brought against Scaife,

who is currently incarcerated and did not attend the forfeiture hearing. Neither Officer Supak nor

any other witness testified at the forfeiture hearing. The only evidence that the State presented to

the trial court to support its forfeiture petition was Officer Supak’s affidavit.

                                                   3
                We hold that Officer Supak’s affidavit constitutes insufficient evidence to support

the order of forfeiture because it (1) does not represent that the facts disclosed therein are true,

(2) is based on Officer Supak’s “belief” rather than his personal knowledge, and (3) relies on the

legal conclusion, unsupported by any stated factual basis, that the cash is “contraband.” Affidavits

that do not aver that the facts contained therein are true or that are based on one’s “belief,” rather

than personal knowledge, are defective and legally insufficient. See Brownlee v. Brownlee, 665

S.W.2d 111, 112 (Tex. 1984) (affidavit that does not positively and unqualifiedly represent that facts

disclosed are true and within affiant’s personal knowledge are legally insufficient); State ex rel.

Driscoll v. Lindsay, 877 S.W.2d 856, 857 (Tex. App.—Houston [1st Dist.] 1994, writ denied)

(affidavit reciting that facts therein were true and correct to “best of knowledge and belief” was

insufficient); see also Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam)

(interested witness’s affidavit that recites affiant “believes” certain facts to be true will not support

summary judgment because such language does not positively and unqualifiedly represent “facts”

disclosed are true).

                Furthermore, affidavits must set forth facts, not legal conclusions, see Watkins v.

Hammerman & Gainer, 814 S.W.2d 867, 870 (Tex. App.—Austin 1991, no writ), and legal

conclusions do not constitute probative evidence, see University of Tex. v. Poindexter, 306 S.W.3d 798,

810 (Tex. App.—Austin 2009, no pet.); see also Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991)

(legal conclusions are insufficient to raise material fact issues). Officer Supak’s statement that he

“believes [the cash] is contraband” is an unsupported conclusion because his affidavit does not

recite any facts from which the court could have found that the $485 was indeed contraband.




                                                   4
               Moreover, even if Officer Supak’s affidavit were valid and not improperly conclusory,

the fact that the cash and cocaine were found somewhere (unidentified) on Scaife’s person is not,

on its own, sufficient circumstantial evidence to support a nexus between the cash and an offense

enumerated in the Controlled Substances Act. See $2067 in U.S. Currency, 3 Handguns & 51

Capsules v. State, 745 S.W.2d 109, 111 (Tex. App.—Fort Worth 1988, no writ) (holding evidence

insufficient to support forfeiture). “The fact that the forfeited property was found at, or near, the

controlled substance does not establish the nexus between the property and the sale or commercial

distribution of a controlled substance.” Id.; Henderson v. State, 669 S.W.2d 385, 387-88 (Tex.

App.—San Antonio 1984, no writ) (money found on appellant was insufficient on its own and

required direct or circumstantial proof of link between money and offense); see also Antrim v. State,

868 S.W.2d 809, 812 (Tex. App.—Austin 1993, no writ) (when relying on circumstantial evidence

to prove link to offense, State must offer proof that does more than raise mere surmise or suspicion

regarding source of money). We hold that the State did not sustain its burden of proving by a

preponderance of the evidence that the seized cash was used in the commission of a felony, was the

proceeds gained from the commission of a felony, or was acquired with such proceeds and was

therefore contraband and subject to forfeiture.1 See Tex. Code Crim. Proc. art. 59.01. Therefore,

the judgment forfeiting the $485 cannot stand. See Fifty-Six Thousand Seven Hundred Dollars


       1
          The legal insufficiency of the evidence supporting the State’s burden to prove the $485 was
contraband is error “apparent on the face of the record,” so even if this were a restricted appeal, as
the State alleges, the error would nonetheless require reversal. See Norman Commc’ns v. Texas
Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam) (review of face of record in restricted
appeal affords appellant same scope of review as ordinary appeal and necessarily includes review
of legal- and factual-sufficiency claims); see also Tex. R. App. P. 26.1(c), 30. Accordingly, we need
not address the State’s arguments that Scaife’s notice of appeal was untimely filed.

                                                  5
in U.S. Currency v. State, 730 S.W.2d 659, 662 (Tex. 1987) (holding required nexus between

currency and enumerated offense was lacking and there was no more than scintilla of evidence to

support forfeiture).

               Nonetheless, the State argues that the judgment must stand because Scaife’s failure

to appear at the hearing permitted the rendition of a “no-answer” default judgment, which means

that by virtue of Scaife’s default he had admitted the State’s allegations. See Stoner v. Thompson,

578 S.W.2d 679, 684 (Tex. 1979). However, the record reveals that Scaife pro se filed two

handwritten documents with the district court that either individually or collectively constituted

an “answer” as required by the rules of civil procedure (although neither document bore the

title “answer”). See Hughes v. Habitat Apartments, 860 S.W.2d 872, 872 (Tex. 1993) (per curiam)

(defendant who failed to file answer but filed pauper’s affidavit that confirmed receipt of citation,

identified case and parties, and provided defendant’s current address had filed adequate pro se

answer and was entitled to notice of hearing on motion for default judgment); Guadalupe Econ.

Servs. Corp. v. DeHoyos, 183 S.W.3d 712, 716-17 (Tex. App.—Austin 2005, no pet.) (“answer”

is construed to mean “written pleading of some character” and must contain merely sufficient

information to place in issue claims made in suit); Terehkov v. Cruz, 648 S.W.2d 441, 442 (Tex.

App.—San Antonio 1983, no writ) (signed letters to clerk timely acknowledging receipt of citation

sufficed as “pro se answer” to prevent default judgment); see also Stone v. Lawyers Title Ins. Corp.,

554 S.W.2d 183, 186 (Tex. 1977) (pleadings should be construed so as to do substantial justice

and are sufficient if they give fair and adequate notice to pleader’s adversary). Furthermore, the

trial court’s judgment affirmatively recites that Scaife “was served with citation . . . and filed an



                                                 6
answer to this suit.” (Emphasis added.) Accordingly, the State was not entitled to a no-answer

default judgment.2

               For the foregoing reasons, we affirm the portion of the trial court’s judgment

forfeiting the cocaine. We reverse the judgment forfeiting the $485 and set aside that portion of the

judgment, rendering that the State take nothing on its claim to the cash.



                                               _____________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Pemberton, and Rose

Affirmed in Part; Reversed and Rendered in Part

Filed: August 28, 2014




       2
         To the extent that the State’s true argument is that it was entitled to a post-answer default
judgment, such judgment cannot be entered on the pleadings but must be proven with evidence, and
our conclusion regarding legal sufficiency dispenses with this argument. See Stoner v. Thompson,
578 S.W.2d 679, 682 (Tex. 1979) (defendant’s post-answer default constitutes neither abandonment
of answer nor implied admission, and petitioner must offer evidence and prove case).

                                                  7
