                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00226-CV


$214.00 U.S. CURRENCY, 1995                                     APPELLANT
CHEVROLET, AND FIREARM WITH
AMMUNITION

                                     V.

THE STATE OF TEXAS                                               APPELLEE


                                  ----------

         FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. S-11299

                                  ----------

                       MEMORANDUM OPINION1

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                              I. INTRODUCTION

     Appellant Rhonald Martinez, appearing pro se, appeals the seizure of his

property pursuant to chapter 59 of the Texas Code of Criminal Procedure. See

Tex. Code Crim. Proc. Ann. arts. 59.01–.14 (West 2006 & Supp. 2014). In two

     1
      See Tex. R. App. P. 47.4.
issues, Martinez argues that the evidence is legally and factually insufficient to

show that the $214.00 in U.S. currency and the alleged firearm with ammunition

are contraband and that the search during which the property was seized was

the result of an invalid traffic stop. Because we hold that the evidence is legally

insufficient to support the forfeiture of the $214.00 in U.S. currency and the

alleged firearm with ammunition, we will reverse and render that portion of the

trial court’s judgment; we affirm the portion of the trial court’s judgment forfeiting

the 1995 Chevrolet to the State.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      Officer Cade testified at the forfeiture trial that on September 1, 2011, he

performed a traffic stop on a 1995 Chevrolet due to two violations of the Texas

Transportation Code: an expired registration and a nonworking license plate

light. The traffic stop occurred late at night in “a high crime and drug-activity

area.” Martinez was the driver and the only occupant of the vehicle.

      When Officer Cade began approaching the vehicle, Martinez attempted to

roll down the window. As Officer Cade drew closer to the vehicle, Martinez rolled

up the window and attempted to exit the vehicle. Officer Cade told Martinez to sit

back down in the vehicle and to roll down his window.               Martinez initially

responded that his window could not be rolled down, but when Officer Cade

asked him a second time to roll down the window, Martinez complied. Officer

Cade asked Martinez for his driver’s license and proof of insurance, and Martinez



                                          2
provided his driver’s license.2 Due to Martinez’s actions in initially attempting to

exit the vehicle, rolling down the window, rolling it back up, and then claiming it

would not roll down, Officer Cade was “very suspicious.” Officer Cade testified

that he was afraid that Martinez had a weapon, so he asked Martinez to step out

of the vehicle and called for an assist officer. Officer Cade asked Martinez for

verbal consent to search his body and his vehicle, Martinez gave his consent,

and Officer Cade searched Martinez’s pockets.

      When Officer Curtis arrived, Officer Cade asked him to stand with Martinez

at the back of Martinez’s vehicle. Officer Cade attempted to search the vehicle,

but Martinez had locked the doors to the vehicle and had left the keys in the

ignition. Officer Cade asked Martinez if he had a spare key, and he replied that

he did not. Officer Cade testified, “It was very suspicious what he was doing.

Based on my training, experience, he was attempting to distance himself from

some sort of contraband. I believe[d] that he had something in the vehicle.”

Officer Cade testified that Martinez appeared nervous: his hands were shaking,

and he was sweating profusely.3      Martinez then withdrew his consent to the

search of the vehicle, which Officer Cade considered suspicious.




      2
       Officer Cade could not remember whether Martinez also provided proof of
insurance.
      3
      Officer Cade said that it was September in Texas and that Martinez could
have been sweating for other reasons, but this seemed “a bit [] beyond.”

                                         3
      Officer Cade placed Martinez in Officer Cade’s vehicle for his safety and

for Martinez’s safety; Martinez was detained without handcuffs and was not

under arrest. Officer Cade called for a canine officer.

      The canine unit arrived quickly and alerted on Martinez’s vehicle, and

another officer was able to gain entry into Martinez’s vehicle.     Officer Cade

searched the vehicle and found what he believed to be methamphetamine under

the driver’s seat; a green bag in the glove compartment that looked like a kids’

pencil case, containing baggies of methamphetamine and baggies of marijuana;

and a syringe. Officer Cade testified that the total amount of methamphetamine

found was approximately eight grams4 and that based on his training, this was a

dealer amount.

      Officer Cade seized the vehicle under chapter 59 because he believed that

it was used or there was an attempt to use it in the commission of a felony.

Officer Cade also seized the $214.00 in cash that he found in Martinez’s wallet

because he believed that under chapter 59, it was proceeds of a felony. Officer

Cade testified that he also found a firearm in the vehicle and that he seized the

firearm. The firearm was later discovered to not be a firearm under the definition

in the penal code.


      4
       The State admitted into evidence a copy of the laboratory analysis of the
substances recovered from the vehicle: one plastic bag contained 6.89 grams
methamphetamine; four plastic bags contained a total of 1.17 grams
methamphetamine; two plastic bags contained a total of 2.99 grams of
marijuana; and one plastic bag contained 0.25 grams of marijuana.

                                         4
      Martinez, who also proceeded pro se in the trial court, participated in the

trial by telephone. Martinez asked Officer Cade on cross examination about the

conversation the two had at the scene regarding whom Martinez had said owned

the car.   Officer Cade said that he did not remember the conversation.5            In

response to Martinez’s questioning, Officer Cade testified that Martinez was not

under arrest when he was moved to the patrol car and that he had placed

Martinez under arrest only after he found narcotics inside the vehicle. Martinez

asked Officer Cade whether there was a videotape of the stop or a written

consent to search form, and Officer Cade said that the videotape was never

tagged as evidence and there was no written consent form.6

      Detective Rhodes, the handler for canine Z, testified that he walked Z

around the vehicle that Martinez had been driving on September 1, 2011, and

that Z performed a “free-air sniff” in close proximity to the exterior of the vehicle.

Detective Rhodes testified that Z alerted to the driver’s side door. Detective

Rhodes further testified that because Z had been trained as a bite dog, the

vehicle’s occupants were not allowed near the vehicle during Z’s “free-air sniff”

for fear of an accidental bite.


      5
       The forfeiture trial occurred on July 14, 2014, which was almost three
years after the traffic stop had taken place.
      6
       Officer Cade testified on redirect that his patrol car was outfitted with a
video recorder in 2011, that the video recorder was on, that he did not have a
body microphone, and that it was not their practice to tag as evidence every
videotape from every traffic stop.

                                          5
      Martinez cross-examined Detective Rhodes about why he did not call a

magistrate to request a search warrant, and Detective Rhodes responded,

“Because a dog alerting to the odor of illegal narcotics emitting from a vehicle is

immediate probable cause to search that vehicle bumper to bumper.”

      During his case in chief, Martinez informed the trial court that he had filed a

motion for summary judgment and had attached as evidence bank records

showing that he had deposited his supplemental income check from the

government and had withdrawn those funds a few hours before his arrest. The

trial court took judicial notice of the bank statement.7

      After hearing the above testimony, the trial court granted forfeiture of the

$214.00 in cash, the 1995 Chevrolet,8 and its contents—which included the

purported firearm with its ammunition—to the State. Martinez then perfected this

appeal.9




      7
       The document attached to Martinez’s motion for summary judgment
consists of a two-page printout, reflecting that a deposit in the amount of $674
was made by “SSI Treas” on September 1, 2011, and that two withdrawals for
$122.50 each were made after the deposit on the same date.
      8
       The trial court noted that Martinez had denied ownership of the vehicle
and that the owner of the vehicle had filed a waiver with the court.
      9
        Martinez also appealed the underlying conviction for possession with
intent to deliver between four and 200 grams of methamphetamine, which this
court recently affirmed. See Martinez v. State, 02-13-00610-CR, 2015 WL
392729, at *7 (Tex. App.—Fort Worth Jan. 29, 2015, pet. filed) (mem. op., not
designated for publication).

                                          6
               III. REASONABLE SUSPICION FOR CONTINUED DETENTION

       In his second issue, Martinez argues that the search performed during the

traffic stop was not valid. Martinez does not contest Officer Cade’s initial traffic

stop based on the vehicle’s expired registration and nonworking license plate

light. Martinez does, however, contest Officer Cade’s continued detention of him

after the initial traffic stop.10

       If, during a valid traffic stop and detention, the officer develops reasonable

suspicion that the detainee is engaged in criminal activity, prolonged or continued

detention is justified. Davis v. State, 947 S.W.2d 240, 243–44 (Tex. Crim. App.

1997); McQuarters v. State, 58 S.W.3d 250, 256 (Tex. App.—Fort Worth 2001,

pet. ref’d). A police officer has reasonable suspicion when he possess “specific,

articulable facts that, combined with rational inferences from those facts, would

lead him reasonably to conclude that the person detained is, has been, or soon

will be engaged in criminal activity.” Derichsweiler v. State, 348 S.W.3d 906, 914

(Tex. Crim. App.), cert. denied, 132 S. Ct. 150 (2011); accord Crain v. State, 315

S.W.3d 43, 52 (Tex. Crim. App. 2010). These facts must add up to more than a

mere inarticulate hunch, suspicion, or good faith belief that a crime was in

progress. Crain, 315 S.W.3d at 52. This is an objective standard that looks to

the totality of the circumstances and disregards the subjective intent of the

detaining officers. Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013).

       10
       We note that Martinez does not               independently    challenge   the
reasonableness of the length of the detention.

                                          7
      “[C]ircumstances as will raise suspicion that illegal conduct is taking place

need not be criminal in themselves. Rather, they may include any facts which in

some measure render the likelihood of criminal conduct greater than it would

otherwise be.” Crockett v. State, 803 S.W.2d 308, 311 (Tex. Crim. App. 1991).

The facts must give rise to reasonable suspicion that “something of an apparently

criminal nature is brewing” but need not show “that the detainee has committed,

is committing, or is about to commit . . . a particular and distinctively identifiable

penal offense.” Derichsweiler, 348 S.W.3d at 916–17.

      Here, several facts led Officer Cade to suspect that Martinez had engaged

in criminal activity apart from the traffic violations and thus allowed Officer Cade

to prolong the detention of Martinez until the canine unit arrived. Officer Cade

saw Martinez behave erratically and furtively; upon Officer Cade’s approach,

Martinez rolled down his driver’s side window, rolled it back up, began to get out

of his car to meet Officer Cade, apparently misrepresented to Officer Cade the

window’s ability to function, and rolled it down again. Martinez then showed

signs of nervousness, including shaking hands and sweating profusely. Martinez

also acted in a way that signaled that he might be hiding something:             after

granting consent for Officer Cade to search the car, he prevented Officer Cade

from doing so by locking the car with its keys in the ignition and then withdrew his

consent to the search of his car. Furthermore, all of these actions occurred late

at night in a “high crime and drug-activity area.”



                                          8
      None of these factors, when viewed individually, would necessarily

generate reasonable suspicion of criminal activity. But we conclude that when

viewed collectively, these factors constitute sufficient specific and articulable

facts, in light of Officer Cade’s experience and personal knowledge and when

coupled with reasonable inferences therefrom, to reasonably warrant Officer

Cade’s continued detention of Martinez. See Matthews v. State, 431 S.W.3d

596, 603–04 (Tex. Crim. App. 2014).11        Accordingly, we overrule Martinez’s

second issue.

                   IV. SEIZURE AND FORFEITURE OF PROPERTY

      In his first issue, Martinez argues that the evidence is legally and factually

insufficient to show probable cause for seizing the property or that the seized

property is contraband and therefore subject to forfeiture. Martinez limits his

argument to the forfeiture of the $214.00 in cash and the contents of the vehicle,

which we construe to be the alleged firearm with ammunition;12 he does not

challenge the forfeiture of the 1995 Chevrolet.



      11
        Within his second issue, Martinez also argues that the trial court erred by
omitting crucial evidence—the audio tape and videotape—that he had requested
and that the State of Texas “knew of these tapes and concealed them from the
criminal trial in this matter which violates the Michael Morton Act.” Based on
Officer Cade’s testimony at trial that there was no audio recording of the incident
and that videotapes of traffic stops were not routinely tagged as evidence, the
record does not support Martinez’s argument.
      12
        To the extent that Martinez argues that there was other “unlisted
property” in the vehicle, the record before us does not support his argument.

                                         9
                              A. Standard of Review

      In a trial to the court in which no findings of fact or conclusions of law are

filed, the trial court’s judgment implies all findings of fact necessary to support it.

Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766–67 (Tex. 2011); Wood v. Tex. Dep’t

of Pub. Safety, 331 S.W.3d 78, 79 (Tex. App.—Fort Worth 2010, no pet.). When

a reporter’s record is filed, however, these implied findings are not conclusive,

and an appellant may challenge them by raising both legal and factual sufficiency

of the evidence issues. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52

(Tex. 2003); Liberty Mut. Ins. Co. v. Burk, 295 S.W.3d 771, 777 (Tex. App.—Fort

Worth 2009, no pet.). When such issues are raised, the applicable standard of

review is the same as that to be applied in the review of jury findings or a trial

court’s findings of fact.   Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.

1989); Liberty Mut. Ins. Co., 295 S.W.3d at 777. The judgment must be affirmed

if it can be upheld on any legal theory that finds support in the record.

Rosemond, 331 S.W.3d at 767; Liberty Mut., 295 S.W.3d at 777.

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact, (2) the court is 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 a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

                                          10
“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

                              B. Law on Forfeiture

      Forfeiture proceedings are civil in nature. Tex. Code Crim. Proc. Ann. art.

59.05(b) (West 2006).      The State must prove by a preponderance of the

evidence that the property is subject to forfeiture.     Id.   Money is subject to

forfeiture if it is derived from manufacturing, delivering, selling, or possessing a

controlled substance. Id. arts. 59.01(2), .02(a); State v. $11,014.00, 820 S.W.2d

783, 784 (Tex. 1991).

      In forfeiture proceedings, the State must show probable cause for seizing a

person’s property.   Tex. Const. art. I, § 9; $11,014.00, 820 S.W.2d at 784.

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 by the statute. $11,014.00, 820 S.W.2d at 784. This is accomplished

when the State proves that it is more reasonably probable than not that the

seized currency was either intended for use in, or derived from, a violation of the

offenses listed in the forfeiture statute. State v. Five Thousand Five Hundred

                                        11
Dollars in U.S. Currency, 296 S.W.3d 696, 701 (Tex. App.—El Paso 2009, no

pet.). The substantial connection may be proved by circumstantial evidence.

$11,014.00, 820 S.W.2d at 785. When relying on circumstantial evidence, “the

State is required to offer proof which does more than raise a mere surmise or

suspicion regarding the source of money.” Antrim v. State, 868 S.W.2d 809, 812

(Tex. App.—Austin 1993, no writ) (quoting Money of the United States $8,500.00

v. State, 774 S.W.2d 788, 792 (Tex. App.—Houston [14th Dist.] 1989, no writ)).

      Here, the record contains only the following testimony from Officer Cade

with respect to the items seized:

            Q      (By Ms. Lockhart) And you seized the vehicle under
      Chapter 59 because you believe it was used or attempted to be
      used in the commission of a felony; is that correct?

            A      Yes.

            Q     You also seized cash that you found in Mr. Martinez’s
      wallet because you believe it was proceeds of the felony under
      Chapter 59; is that correct?

            A      Yes.

            Q      And you also found a firearm in the vehicle; is that
      correct?

            A      Yes.

            Q      And you seized the firearm?

            A      Yes.

            Q     The firearm was later discovered not to be a firearm
      under the definitions of the Penal Code; is that correct?

            A      Yes.

                                      12
            Q      But at the time it looked like a usable gun; is that
      correct?

             A     Yes.

             MS. LOCKHART: Nothing further of this witness, Your Honor.

      To uphold the forfeiture of the $214.00 in cash found in the wallet on

Martinez’s person, the State must show that it was more reasonably probable

than not that the seized money was derived from or intended for use in

manufacturing, delivering, selling, or possessing a controlled substance. Here,

there was no evidence that the drug dog alerted on the cash or that it was tested

and found to contain traces of illegal substances. Although a syringe and bags

containing marijuana and methamphetamine were found in the vehicle that

Martinez was driving at the time of the traffic stop, their presence in the vehicle is

not evidence that Martinez had derived the money found in his wallet from or had

intended to use the money in the manufacturing, delivering, selling, or

possession of a controlled substance. See Fifty-Six Thousand Seven Hundred

Dollars in U.S. Currency v. State, 730 S.W.2d 659, 661 (Tex. 1987); $2067 in

U.S. Currency, 745 S.W.2d 109, 111 (Tex. App.—Fort Worth 1988, no writ) (both

stating that the fact that the forfeited property was found near a controlled

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

commercial distribution of a controlled substance). Moreover, the trial court took

judicial notice of Martinez’s financial records, showing that a deposit in the

amount of $674 was made by “SSI Treas” on the day of his arrest, and that two

                                         13
withdrawals totaling $245.00 were made after the deposit on the same date.

Martinez thus presented evidence showing where he had derived the $214.00 in

cash that remained in his wallet when he was stopped.             Considering the

evidence favorable to the forfeiture order if a reasonable factfinder could and

disregarding the evidence contrary to the forfeiture order unless a reasonable

factfinder could not, we hold that the State’s evidence raised only a mere

suspicion that the money was contraband, and thus, we hold that the evidence is

legally insufficient to support the forfeiture of the $214.00 in U.S. currency. See

Fifty-Six Thousand Seven Hundred Dollars in U.S. Currency, 730 S.W.2d at 662

(holding evidence insufficient because any presumption that may have arisen

that the currency was derived from the sale or distribution of illicit drugs was

rebutted by appellant’s testimony explaining that large amounts of cash were

delivered to his home in connection with his construction business); Barron v.

State, 746 S.W.2d 528, 532 (Tex. App.—Austin 1988, no writ) (holding evidence

insufficient to support forfeiture of $198 found on appellant at the time of his

arrest because presence of drug ledger and hypodermic needle in vehicle was

not evidence of how appellant obtained or intended to use the money); $2067 in

U.S. Currency, 745 S.W.2d at 111 (holding evidence insufficient to support

forfeiture of plastic bags containing capsules and money that was found in bag

with note pad of drug dealings because officer neither personally observed

appellant in a drug transaction nor had personal knowledge that the money was

the proceeds of a drug transaction); see also $485.00 in U.S. Currency v. State,

                                        14
No. 03-12-00325-CV, 2014 WL 4364911, at *3–4 (Tex. App.—Austin Aug. 28,

2014, no pet.) (mem. op.) (holding that the fact that cash and cocaine were found

somewhere on appellant’s person was not, on its own, sufficient circumstantial

evidence to support a nexus between the cash and an offense enumerated in the

Controlled Substances Act).

      Similarly, to uphold the forfeiture of the gun found in the vehicle, the State

was required to show that it was more reasonably probable than not that the gun

was derived from or intended for use in delivering, selling, or possessing a

controlled substance.    Martinez argues in his brief that the antique gun was

locked in its display case in the trunk; however, Officer Cade did not testify where

the gun was found in relation to the drugs other than agreeing that it was found

“in the vehicle.” Officer Cade admitted that the gun was ultimately determined

not to be a firearm under the penal code’s definition,13 therefore lessening the

likelihood that it was intended to be used in delivering, selling, or possessing a


      13
        The Texas Penal Code contains the following definition of “firearm”:

             “[A]ny device designed, made, or adapted to expel a projectile
      through a barrel by using the energy generated by an explosion or
      burning substance or any device readily convertible to that use.
      Firearm does not include a firearm that may have, as an integral
      part, a folding knife blade or other characteristics of weapons made
      illegal by this chapter and that is: (A) an antique or curio firearm
      manufactured before 1899; or (B) a replica of an antique or curio
      firearm manufactured before 1899, but only if the replica does not
      use rim fire or center fire ammunition.

Tex. Penal Code Ann. § 46.01(3) (West Supp. 2014).

                                        15
controlled substance. Considering the evidence favorable to the forfeiture order

if a reasonable factfinder could and disregarding the evidence contrary to the

forfeiture order unless a reasonable factfinder could not, we hold that the State’s

evidence raised only a mere suspicion that the alleged firearm with ammunition

was contraband, and thus, the evidence is legally insufficient to support the

forfeiture of the alleged firearm with ammunition. See Sixty-Six Thousand Four

Hundred Dollars ($66,400.00) in U.S. Currency v. State, No. 13-99-00721-CV,

2000 WL 35729670, at *1–2 (Tex. App.—Corpus Christi Dec. 14, 2000, pet.

denied) (not designated for publication) (holding evidence insufficient to support

conclusion that handgun discovered in spare tire compartment was used or was

intended to be used in commission of a felony).

      Having held that the evidence is legally insufficient to support the forfeiture

of the $214.00 in U.S. currency and the alleged firearm with ammunition, we

need not address Martinez’s factual sufficiency challenge. See Tex. R. App. P.

47.1. We sustain Martinez’s first issue.

                                 V. CONCLUSION

      Having found the evidence legally insufficient as to the $214.00 in U.S.

currency and the alleged firearm with ammunition, we reverse that part of the trial

court’s judgment forfeiting $214.00 in U.S. currency and the alleged firearm with

ammunition and render judgment that the State take nothing on its claim to the

$214.00 in U.S. currency and the alleged firearm and ammunition. Because the



                                           16
forfeiture of the 1995 Chevrolet to the State is unchallenged, we affirm the

portion of the trial court’s judgment forfeiting the 1995 Chevrolet to the State.




                                                     /s/ Sue Walker
                                                     SUE WALKER
                                                     JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DELIVERED: April 2, 2015




                                         17
