Opinion issued June 11, 2013.




                                    In The

                             Court of Appeals
                                   For The

                        First District of Texas
                          ————————————
                            NO. 01-12-00388-CV
                          ———————————
                $132,265.00 IN U.S. CURRENCY, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 412th District Court
                         Brazoria County, Texas
                       Trial Court Case No. 49473



                                OPINION

     This is an appeal from a civil forfeiture proceeding under chapter 59 of the

Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. arts. 59.01−.14 (West

2006 & Supp. 2012). In two issues, Charles Ejekute-Obi, a licensed pharmacist
from whom $132,265 was forfeited as proceeds gained from the unlawful

dispensing of narcotics, contends the State presented (1) legally insufficient

evidence of the commission of a felony offense that would justify the forfeiture

and (2) factually insufficient evidence that the currency forfeited was contraband.

We affirm.

                                  Background

      Police arrested Ejekute-Obi in October 2008 after he filled written

prescriptions presented by an undercover officer for 5,310 tablets of hydrocodone

and 3,600 tablets of Xanax at his pharmacy, Empirical Pharmacy. Ejekute-Obi

charged $3,920 for the prescriptions and requested an $80 tip from the undercover

officer. Police estimated the street value of the hydrocodone and Xanax dispensed

by Ejekute-Obi at more than $45,000.

      Sergeant T. Gamble, a supervisor for the pharmaceutical squad of the

Houston Police Department’s narcotics division, and HPD Officer J. Kowal, a

member of the narcotics division, both testified that HPD began an undercover

investigation and surveillance of Ejekute-Obi after receiving a confidential

informant’s tip that Ejekute-Obi was dispensing narcotics without a valid medical

purpose. Three HPD officers, including Sergeant Gamble and Officer Kowal,

testified that the confidential informant had provided their unit with reliable

information in the past.


                                        2
      During surveillance, Officer Kowal observed a man and woman driving a

vehicle with Louisiana license plates enter Ejekute-Obi’s pharmacy with two

empty duffel bags; when the man and woman left fifteen minutes later, the duffel

bags were full. Police conducted a traffic stop, searched the vehicle, and

discovered that the duffel bags contained thousands of tablets of hydrocodone and

Xanax and almost $4,000 in cash. The two Louisiana-based individuals were

arrested. On at least two more occasions, police arrested individuals who left

Ejekute-Obi’s pharmacy with unlawfully dispensed narcotics.

      Police continued the surveillance of the pharmacy and decided to set up a

sting operation. Police obtained twenty-five prescriptions for twenty-five different

people from a licensed physician. Some of the prescriptions were for hydrocodone

or Xanax or both, and others included a medication that was not a controlled

substance in addition to hydrocodone or Xanax. According to the testimony of

Officer Kowal, pharmacists who unlawfully dispense narcotics often require that

the prescriptions include medications that are not controlled substances in order to

avoid detection by the Drug Enforcement Agency. Kowal also testified that

because the potential abuse of controlled substances is well known, most legitimate

pharmacists “do their due diligence” to verify the validity of a prescription,

including whether it was issued as a result of an actual doctor-patient relationship

and for a “medical necessity.”

                                         3
      On the day of the sting, HPD Officer K. Jacobs went into Ejekute-Obi’s

pharmacy with a confidential informant who was familiar with the practices there. 1

The confidential informant introduced Jacobs as a friend, and Jacobs presented

Ejekute-Obi with all twenty-five prescriptions and a photocopy of an identification

card for each purported patient. Ejekute-Obi refused to fill the prescriptions that

did not list a medication besides hydrocodone or Xanax. He gave Jacobs a

handwritten list of other medications “he typically used when filling prescriptions

for controlled substances.” Ejekute-Obi specifically pointed out a stool softener.

      Jacobs left the pharmacy so that Ejekute-Obi could fill the prescriptions.

When she returned, she put the narcotics and other medications in a duffel bag and

paid Ejekute-Obi $3,920 plus the $80 tip. More than one officer testified that the

amount Ejekute-Obi charged was high. Jacobs also noted the absence of a cash

register in the pharmacy, and she testified that Ejekute-Obi did not record the

transaction. Jacobs discussed future purchases of hydrocodone and Xanax with

Ejekute-Obi. Ejekute-Obi told her to come twice a week and to “make sure that

[she] . . . had the prescriptions in order.”

      Police arrested Ejekute-Obi immediately after Jacobs completed the

transaction. During questioning after his arrest, Ejekute-Obi stated that he only

worked with cash and did not accept insurance. Sergeant Gamble and Officer

1
      The confidential informant who participated in the sting operation was not the
      same person who initially tipped police off to Ejekute-Obi’s practices.
                                               4
Kowal testified that the pharmacy did not have a cash register, did not have any

billing records, was disorganized, and had little medicine on the shelves.

      Ejekute-Obi signed a written consent to a search of his home. Officer M.

Backas, a narcotics officer and specialist in the area of illegal pharmaceutical sales,

transported Ejekute-Obi to the house and assisted with the search. Backus testified

that Ejekute-Obi initially informed police that he did not have anything at his home

related to the pharmacy; however, when officers discovered $39,710 in cash

stuffed in several envelopes along with 2,700 tablets of hydrocodone and 720

tablets of Xanax in unmarked vials in Ejekute-Obi’s front closet, Ejekute-Obi

informed Backas that the money was from the pharmacy’s business. Ejekute-Obi

told Backas that he was holding the money at his home because he was going

through a divorce and did not want to make regular deposits into a bank account

his wife could access. Police did not locate any of the paperwork required for a

pharmacist to remove controlled substances from the pharmacy.

      Police also discovered $92,555 in a suitcase in Ejekute-Obi’s bedroom. The

suitcase had Ejekute-Obi’s name on it and contained his medical identification

card. Officer Backus testified that Ejekute-Obi told him that the suitcase belonged

to a Nigerian businessman named “Mr. Uche,” who was out of town. In the more

than three years following Ejekute-Obi’s arrest and the seizure of the $92,555 in

cash, Mr. Uche never made a claim for the money.

                                          5
      The State filed a civil forfeiture proceeding against the $132,265 in cash

found in Ejekute-Obi’s home. At the time of the trial, Ejekute-Obi’s criminal

charges were still pending. After hearing the testimony and considering the

evidence, the trial court entered twenty-eight fact findings, including the following:

      • Based upon information from a confidential informant (who had
        provided reliable information in the past to the Houston P. D.) the
        Houston P. D. conducted surveillance on Empirical on September
        29, 2008. During the day, very few customers entered the
        pharmacy. Late in the afternoon a black male and a black female
        entered the pharmacy with empty duffel bags. After a few minutes
        the pair exited the store with full duffel bags. A few minutes later
        after a traffic stop, the duffel bags were found to contain 9,000
        tablets of hydrocodone and Xanax, plus cash.

      • On October 20, 2008, an undercover Houston P. D. officer entered
        Empirical with 25 prescriptions in 25 different patients’ names.
        Each prescription was for Hydrocodone (a penalty group three
        controlled substance) in 90 tablet quantities and Xanax (or
        Alprazolam, also a penalty group three controlled substance) in 60
        tablet quantities. Most prescriptions also included non-controlled
        substances as well. The prescriptions called for 5,310 tablets of
        Hydrocodone and 3,600 tablets of Xanax.

      • All prescriptions were signed by [a licensed physician].

      • [Ejekute-]Obi refused to fill prescriptions which did not have a
        non-controlled substance in addition to the controlled substance.

      • The Houston P. D. knew that this was [Ejekute-]Obi's practice
        based on information from a prior confidential informant.

      • [Ejekute-]Obi filled [the remaining] prescriptions.




                                          6
      • [Ejekute-]Obi and the officer also discussed future transactions in
        which [Ejekute-]Obi could fill at least 25 prescriptions three to
        four times per week.

      • [Ejekute-]Obi provided the officer with a list of non-controlled
        substances which could be included on future prescriptions for
        controlled substances. [Ejekute-]Obi suggested the use of a stool
        softener.

      • All sales by Empirical were for cash, but no cash register was
        visible in the store.

      • [Ejekute-]Obi informed the officer to come twice a week and make
        sure the prescriptions were in order before coming in again.

The court also made eleven conclusions of law, including the following:

      1. Both Texas and federal law recognize that a pharmacist, such as
         [Ejekute-]Obi, has an affirmative duty only to fill a prescription he
         knows was issued for a legitimate medical purpose and in the
         course of professional practice. . . . In this case, [Ejekute-]Obi’s
         violation of this duty under Texas Health and Safety Code section
         481.071 serves as the predicate felony offense for the seizure and
         forfeiture of the U.S. currency at issue. . . .

      2. From [Ejekute-]Obi’s refusal to fill prescriptions that did not
         include non-controlled substances, coupled with his providing a
         list of non-controlled substances and requesting the officer to have
         his prescriptions in order, this Court can reasonably infer that
         [Ejekute-]Obi knew that the prescriptions were not issued for
         legitimate medical purposes.

      3. Because all prescriptions were so similar, [Ejekute-]Obi would
         have a responsibility to make sure each and every prescription was
         valid.

                                          ...



                                         7
5. Although there is no evidence as to what portion of the money can
   be attributed to non-controlled substances, a wrong-doer may not
   commingle funds derived from the commission of a felony with
   funds derived from lawful endeavors, and argue the taint is
   removed.

6. Based upon prior surveillance, the filling of fictitious prescriptions
   was not an isolated circumstance in this case. The State established
   that there is a reasonable belief that there is a substantial
   connection of the property to be forfeited and the criminal activity.

7. The State proved that it was more probable than not that the seized
   property was intended for use in, or derived from, a violation of the
   offenses enumerated in the foreclosure statute[.]

                                  ...

10.Based on the large amount of controlled substances prescribed
   coupled with the suspicious circumstances under which
   [Ejekute-]Obi dispensed them requires this Court to conclude that
   [Ejekute-]Obi knew these narcotics were being sold without a
   legitimate medical purpose.

11. Based on [Ejekute-]Obi’s admission that the substantial proceeds
   in the front closet were store proceeds, the lack of cash registers or
   other means to record or keep the proceeds at Empirical, and his
   admission that he was keeping money at home because of his
   divorce, this Court can reasonably infer that all proceeds in the
   house were from sales of controlled substances from Empirical or
   from sales of controlled substances like those found in his house.
   Because more than 3 years have elapsed, and Mr. Uche has made
   no claim on the property in the suitcase, this Court concludes that
   Mr. Uche has no interest in the funds in the suitcase and that
   [Ejekute-]Obi was not being truthful in his statements pertaining to
   Mr. Uche or the funds in the suitcase.

   Therefore, the Court finds that the ONE HUNDRED THIRTY-
   TWO THOUSAND TWO HUNDRED SIXTY-FIVE AND
   NO/100 DOLLARS ($132,265.00) in currency money of the
   United States at issue in this proceeding are the proceeds gained
                                   8
         from the commission of a felony under Chapter 481 of the Texas
         Health and Safety Code, and should be forfeited to the State of
         Texas, subject to disposition under article 59.06 of the Texas Code
         of Criminal Procedure.

(Citations omitted).
                                     Forfeiture

      Chapter 59 of the Code of Criminal Procedure authorizes the forfeiture of

contraband, which is defined to include the proceeds gained from the commission

of any felony under chapter 481 of the Health and Safety Code (the Controlled

Substances Act). See TEX. CODE CRIM. PROC. ANN. art. 59.01(2)(B)(i), (D); see

also State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991) (“Money is subject to

forfeiture if it is derived from or intended for use in manufacturing, delivering,

selling, or possessing a controlled substance.”). Forfeiture proceedings under

chapter 59 are civil in nature. TEX. CODE CRIM. PROC. ANN. art. 59.05(b).

      To prevail in a forfeiture proceeding, the State must satisfy a two-part test.

First, the State must show probable cause, or “a reasonable belief that ‘a substantial

connection exists between the property to be forfeited and the criminal activity

defined by the statute.’” State v. $90,235.00 in U.S. Currency, 390 S.W.3d 289,

293 (Tex. 2013) (quoting $56,700 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




                                          9
the State lacks authority to seize a person’s property.” $56,700 in U.S. Currency,

730 S.W.2d at 661.

      Second, the State must prove by a preponderance of the evidence that the

seized property is contraband and therefore subject to forfeiture. See TEX. CODE

CRIM. PROC. ANN. art. 59.02(a); $18,800 in U.S. Currency v. State, 961 S.W.2d

257, 260 (Tex. App.—Houston [1st Dist.] 1997, no writ). When there is no direct

evidence showing that the seized property is the fruit of the commission of the

statutorily enumerated felonies, the State must present “sufficient circumstantial

evidence.” Antrim v. State, 868 S.W.2d 809, 812 (Tex. App.—Austin 1993, no

writ). “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 the currency.’” Id. (quoting Money of the U.S. $8,500 v. State, 774 S.W.2d 788,

792 (Tex. App.—Houston [14th Dist.] 1989, no writ)). The State is not required,

however, to exclude every other possible means by which the currency might have

been acquired. Id.; $7,058.84 in U.S. Currency v. State, 30 S.W.3d 580, 586 (Tex.

App.—Texarkana 2000, no pet.).

A.    Standard of Review

      In an appeal from a bench trial, we review the legal and factual sufficiency

of the evidence supporting a trial court’s findings of fact by the same standards we

apply to jury verdicts. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996);


                                        10
$27,877.00 Current Money of U.S. v. State, 331 S.W.3d 110, 117 (Tex. App.—Fort

Worth 2010, pet. denied). Evidence is legally insufficient when (1) there is a

complete absence of evidence of a vital fact, (2) the court is barred from giving

weight to the only evidence offered to prove a vital fact, (3) the evidence offered is

no more than a scintilla, or (4) the evidence conclusively establishes the opposite

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

ultimate test is “whether the evidence . . . would enable reasonable and fair-minded

people to reach [the findings] under review.” Id. at 810. In making this

determination, we credit favorable evidence if a reasonable fact-finder could, and

we disregard contrary evidence unless a reasonable fact-finder could not. Id. at

827. We may not substitute our judgment for that of the fact-finder so long as the

evidence falls within the zone of reasonable disagreement. Id. at 822.

      When considering a factual-sufficiency challenge, we consider and weigh all

of the evidence, not just that which supports the verdict. Pool v. Ford Motor Co.,

715 S.W.2d 629, 635 (Tex. 1986); $43,774 in U.S. Currency v. State, 266 S.W.3d

178, 183 (Tex. App.—Texarkana 2008, pet. denied). We will set aside a finding

only if the evidence is so weak or the finding is so against the great weight and

preponderance of the evidence that it is clearly wrong and unjust. Pool, 715

S.W.2d at 635; $43,774 in U.S. Currency, 266 S.W.3d at 183.




                                         11
B.    Legal Sufficiency

      In his first issue, Ejekute-Obi argues that the evidence is legally insufficient

to support the forfeiture because the State failed to prove that he committed a

felony by dispensing a controlled substance without a valid medical purpose.

Although Ejekute-Obi challenges the legal sufficiency of the evidence under the

federal statutes regulating prescription medications, see 21 C.F.R. § 1306.04(a),2

the trial court determined that section 481.071 of the Health and Safety Code

served as “the predicate felony offense for the seizure and forfeiture” of

Ejekute-Obi’s currency. Accordingly, we consider whether the State presented

legally sufficient evidence of an offense under section 481.071.

      Section 481.071 prohibits, in pertinent part, a pharmacist from dispensing a

controlled substance “except for a valid medical purpose and in the course of

medical practice.” TEX. HEALTH & SAFETY CODE ANN. § 481.071 (West 2010); see

also TEX. HEALTH & SAFETY CODE ANN. § 481.128 (providing that knowing

violation of section 481.071 is state jail felony). There is no dispute that the

hydrocodone and Xanax dispensed by Ejekute-Obi were controlled substances. See

2
      The federal regulation cited by Ejekute-Obi imposes a duty on a pharmacist to
      properly dispense a controlled substance. See 21 C.F.R. § 1306.04(a). It provides
      that “[t]he responsibility for the proper prescribing and dispensing of controlled
      substances is upon the prescribing practitioner, but a corresponding responsibility
      rests with the pharmacist who fills the prescription.” Id. A pharmacist who fills
      “[a]n order purporting to be a prescription issued not in the usual course of
      professional treatment . . . shall be subject to the penalties provided for violations
      of the provisions of law relating to controlled substances.” Id.
                                            12
TEX. HEALTH & SAFETY CODE ANN. §§ 481.002(5), 481.104(a)(2), (4). The trial

court stated in its conclusions of law that Ejekute-Obi’s knowledge that he

dispensed the hydrocodone and Xanax without a valid medical purpose could be

inferred from “the large amount of controlled substances prescribed coupled with

the suspicious circumstances under which [Ejekute-Obi] dispensed them.” We

agree.

         The State presented the following circumstantial evidence that Ejekute-Obi

was prescribing hydrocodone and Xanax without a valid medical purpose: (1)

police seized thousands of narcotic pills from a Louisiana couple leaving Ejekute-

Obi’s pharmacy, (2) Ejekute-Obi dispensed a large quantity of narcotics to Officer

Jacobs (i.e., prescriptions for twenty-five individuals, none of whom were present

and none of whom testified that they were contacted to verify the prescription), (3)

Ejekute-Obi refused to fill prescriptions that could be flagged as suspicious by the

DEA, (4) Ejekute-Obi provided Jacobs with a list of non-controlled substances for

inclusion on future prescriptions, (5) Ejekute-Obi told Jacobs he could fill orders

for her twice weekly, (6) Ejekute-Obi charged an amount that more than one police

officer testified exceeded the amount charged for valid prescriptions, (7) there was

no cash register at the pharmacy, (8) there was only a small quantity of other

medicine at the pharmacy, (9) Ejekute-Obi had a large quantity of narcotics in a

closet in his home without supporting documentation, (10) Ejekute-Obi had large

                                         13
quantities of cash at his home, and (11) Ejekute-Obi made inconsistent statements

about the cash discovered at this home. Cf. United States v. Rosen, 582 F.2d 1032,

1036 (5th Cir. 1978) (finding that physician did not have valid medical purpose for

issuing prescriptions supported by “inordinately large quantity of controlled

substances” prescribed, “[l]arge numbers of prescriptions” that were issued, and

warnings given by physician to avoid detection).

      Viewing this evidence in the light most favorable to the verdict, we hold that

“reasonable and fair-minded people” could conclude that Ejekute-Obi knowingly

violated section 481.071’s prohibition against dispensing controlled substances

without a valid medical purpose. See City of Keller, 168 S.W.3d at 822. We

overrule Ejekute-Obi’s first issue challenging the legal sufficiency of the evidence.

C.    Factual Sufficiency

      In his second issue, Ejekute-Obi contends that there is factually insufficient

evidence that the $39,710 found in his closet and the $92,555 found in a suitcase in

his bedroom were contraband. When determining whether currency is contraband,

courts have considered the following factors: (1) the proximity of the money to

drugs and 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 property subject to forfeiture, in that a


                                         14
substantial connection exists between the property to be forfeited and the criminal

activity. See Antrim, 868 S.W.2d at 814; $24,180 in U.S. Currency v. State, 865

S.W.2d 181, 184 (Tex. App.—Corpus Christi 1993, writ denied).

      Here, the evidence detailed above constitutes evidence that Ejekute-Obi was

engaged in suspicious activity that was consistent with unlawfully dispensing

narcotics. This case involves both a large amount of narcotics and a large amount

of cash, and the evidence of the circumstances under which the cash was seized is

undisputed. The evidence showed that (1) Ejekute-Obi’s pharmacy business was a

cash business without a cash register or any other method of accounting for

transactions, (2) Ejekute-Obi admitted that he kept cash from his pharmacy

business at his home in order to keep the income out of his divorce proceeding, (3)

police discovered $39,710 in a closet in Ejekute-Obi’s home along with thousands

of hydrocodone and Xanax pills, (4) police did not find paperwork permitting

Ejekute-Obi to store the pills at his home, (5) police discovered an additional

$92,555 in a suitcase containing Ejekute-Obi’s medical identification card, and (6)

Ejekute-Obi lied about owning the suitcase containing the $92,555.

      The State was not required to exclude every possible way in which Ejekute-

Obi could have acquired $132,265 in cash. See Antrim, 868 S.W.2d at 812; Spurs

v. State, 850 S.W.2d 611, 614 (Tex. App.—Tyler 1993, writ denied). We conclude

that the uncontradicted evidence of all the circumstances, taken together, supports

                                        15
the trial court’s finding that $132,265 in cash was contraband. That is, the trial

court’s findings that the $39,710 in the closet and the $92,555 in the suitcase was

subject to forfeiture was not so contrary to the overwhelming weight of the

evidence as to be clearly wrong or unjust. We overrule Ejekute-Obi’s second issue

challenging the factual sufficiency of the evidence.

                                    Conclusion
       Having concluded that the evidence is legally and factually sufficient to

support the forfeiture of $132,265 from Ejekute-Obi as proceeds gained from the

commission of a felony under the Health and Safety Code, we affirm the judgment

of the trial court.




                                              Harvey Brown
                                              Justice

Panel consists of Justices Jennings, Brown, and Huddle.




                                         16
