                             Fourth Court of Appeals
                                    San Antonio, Texas

                               MEMORANDUM OPINION
                                       No. 04-12-00212-CV

               ONE (1) 2002 CADILLAC DEVILLE, VIN 1G6KD54Y42U228530,
                                      Appellant

                                                v.

                                      The STATE of Texas,
                                            Appellee

                    From the 407th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2011-CI-04965
                            Honorable Richard Price, Judge Presiding

Opinion by:      Marialyn Barnard, Justice

Sitting:         Karen Angelini, Justice
                 Steven C. Hilbig, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: December 19, 2012

REVERSED AND REMANDED

           Appellant Manuel Cardenas brings this appeal from the trial court’s order granting

summary judgment for the State in a forfeiture proceeding. On appeal, Cardenas contends the

trial court erred in granting summary judgment because: (1) he was denied the opportunity to be

present at the summary judgment hearing; and (2) there was insufficient evidence to demonstrate

the property forfeited, a 2002 Cadillac Deville, was contraband used or derived from narcotics

trafficking and subject to forfeiture. We hold the State’s evidence did not establish, as a matter
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of law, a reasonable belief that a substantial nexus exists between the vehicle forfeited and

narcotics trafficking. We reverse and remand.

                                                  BACKGROUND

         The State brought a forfeiture action against Sammy Barraza, Melissa Barraza, and

Cardenas 1 for U.S. currency in the amount of $365.96, a 2002 Cadillac Deville, and other

property seized by Deputy Sheriff Bryan Smith pursuant to a narcotics search warrant executed

on the Barraza residence.

         In his affidavit, Deputy Smith stated he executed a narcotics search warrant on the

residence of Sammy and Melissa Barraza, where he found, among other things: a clear plastic

bag containing marijuana, packaging material, a digital scale, and firearms. Deputy Smith

asserted his belief that Sammy and Melissa Barraza are drug dealers who receive money and

other items of value in exchange for narcotics.                  Deputy Smith stated he also seized U.S.

currency, jewelry, consumer electronics, and a 2002 Cadillac Deville, which was owned by

Cardenas, 2 because he believed these items were proceeds of narcotics trafficking.

         The State filed its original notice of intended forfeiture and filed discovery requests,

including requests for admissions directed to Sammy and Melissa Barraza, but not to Cardenas.

The State then filed a motion for summary judgment as to the 2002 Cadillac Deville, which was

owned by Cardenas. In support of its motion, the State relied on Deputy Smith’s affidavit and on

the Barrazas’s deemed admissions.               After a hearing on the motion, the trial court granted

summary judgment, ordering Cardenas to forfeit any interest in the seized vehicle. Cardenas

perfected this appeal.


1
  The record is unclear about the relationship, if any, between the Barrazas and Cardenas. However, the record
shows Cardenas is the owner of the vehicle seized during the narcotics search.
2
  Cardenas was not present at the residence at the time of the search. There is no indication in the record that he was
ever charged with any crime connected to the search.

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                                                  ANALYSIS

        Cardenas challenges the trial court’s order granting summary judgment and forfeiting his

interest in the 2002 Cadillac Deville. Cardenas argues the trial court erred in granting summary

judgment because: (1) he was denied the opportunity to be present at the summary judgment

hearing; 3 and (2) there was insufficient evidence to demonstrate the vehicle was contraband

subject to forfeiture.

                                             Standard of Review

                                             Summary Judgment

        We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim, 315

S.W.3d 860, 862 (Tex. 2010); $24,156.00 in U.S. Currency v. State, 247 S.W.3d 739, 742 (Tex.

App.—Texarkana 2008, no pet.). A traditional motion for summary judgment is granted only

when the movant establishes there are no genuine issues of material fact and the movant is

entitled to judgment as a matter of law. Lesieur v. Fryar, 325 S.W.3d 242, 246 (Tex. App.—San

Antonio 2010, pet denied) (citing Browning v. Prostok, 165 S.W.3d 336, 244 (Tex. 2005)). On

review, we take evidence favorable to the nonmovant as true and indulge every reasonable

inference from the evidence in its favor. Lesieur, 325 S.W.3d at 246 (citing Am. Tobacco Co. v.

Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)). In deciding whether there is a material fact issue

precluding summary judgment, all conflicts in the evidence are disregarded and evidence

favorable to the nonmovant is accepted as true. Cole v. Johnson, 157 S.W.3d 856, 859 (Tex.

App.—Fort Worth 2005, no pet.) (citing Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d

170, 173 (Tex. 1995)).


3
  Cardenas contends he was not present at the summary judgment hearing. While the record is unclear on this point,
given our holding with regard to Cardenas’s second point of error, we need not consider his first point of error
relating to his attendance at the summary judgment hearing.


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       When a plaintiff moves for summary judgment on its own cause of action, it must

establish each element of its claim as a matter of law in order to prove it is entitled to summary

judgment. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). Once a movant

establishes its right to summary judgment, the burden shifts, and the nonmovant must produce

some evidence raising a genuine issue of material fact. Cole, 157 S.W.3d at 860; Romo v. Tex.

Dep’t of Transp., 48 S.W.3d 265, 269 (Tex. App.—San Antonio 2001, no pet.).

                                        Applicable Law

                                           Forfeiture

       Chapter 59 of the Texas Code of Criminal Procedure prescribes the procedures governing

civil forfeiture, which is an in rem proceeding against contraband. State v. Silver Chevrolet

Pickup VIN 1GCEC14T7YE257128 Tag No. 3TMX16, 140 S.W.3d 691, 692–93 (Tex. 2004);

Hardy v. State, 102 S.W.3d 123, 126–27 (Tex. 2003). Under Chapter 59 of the Texas Code of

Criminal Procedure, property, including currency, is subject to seizure and forfeiture if it is

found to be contraband.     TEX. CODE CRIM. PROC. ANN. art. 59.02(a) (West Supp. 2012).

Contraband is property used or intended to be used in the commission of certain felonies, or

proceeds derived from those felonies. TEX. CODE CRIM. PROC. ANN. art. 59.01(2)(A)-(D); Silver

Chevrolet Pickup, 140 S.W.3d at 692.

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

property. TEX. CONST. art. I, § 9; State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991). To

show probable cause, the State must establish a reasonable belief that a substantial nexus or

connection exists between the property to be forfeited and the statutorily defined criminal

activity. $11,014.00, 820 S.W.2d at 785; $27,877.00 Current Money of U.S. v. State, 331

S.W.3d 110, 114 (Tex. App.—Fort Worth 2010, pet. denied). Thus, the State must prove that it



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                                                                                   04-12-00212-CV


is more reasonably probable than not that the seized property was either intended for use in, or

derived from, a violation of the offenses enumerated in the forfeiture statute.       $27,877.00

Current Money of U.S., 331 S.W.3d at 114 (citing State v. Five Thousand Five Hundred Dollars

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

       The State may prove the required substantial nexus through circumstantial evidence. Id.

(citing $11,014.00, 820 S.W.2d at 785). When relying on circumstantial evidence, the State

must offer evidence that raises more than a mere suspicion regarding the source of the property

or money. Id.

                                      Deemed Admissions

       A party may serve on another party—no later than thirty days before the end of the

discovery period—written requests that the other party admit the truth of any matter within the

scope of discovery, including statements of opinion or a fact or of the application of the law to

fact. See TEX. R. CIV. P. 198.1. When a party does not return answers to a request for

admissions within thirty days, the matters in the request are deemed admitted against that party.

Wal–Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 355 (Tex. 1998); see also TEX. R. CIV. P.

198.2(c) (“If a response is not timely served, the request is considered admitted without the

necessity of a court order.”). A matter admitted under this rule is conclusively established as to

the party making the admission unless the court permits the party to withdraw or amend the

admission. State v. Carrillo, 885 S.W.2d 212, 214 (Tex. App.—San Antonio 2004, no pet.)

(emphasis added); TEX. R. CIV. P. 198.3.

       Admissions of fact on file at the time of a summary judgment hearing are proper

summary judgment proof and will support a motion for summary judgment. Acevedo v. Comm’n

for Lawyer Discipline, 131 S.W.3d 99, 105 (Tex. App.—San Antonio 2004, pet. denied). A



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party who fails to expressly present to the trial court any written response in opposition to a

motion for summary judgment based on deemed admissions waives its right to raise any

arguments or issues post-judgment. Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797

(Tex. 2008). Issues not expressly presented to the trial court by written notice, answer, or other

response shall not be considered on appeal as grounds for reversal. Id.

                                               Application

        In his second point of error, Cardenas contends there was insufficient evidence to

demonstrate the vehicle was contraband subject to forfeiture. 4 The State had the burden of

proving, as matter of law, that it was more reasonably probable than not that the seized property

was either intended for use in, or derived from, a violation of the offenses enumerated in the

forfeiture statute. See $11,014.00, 820 S.W.2d at 785. The State provided the affidavit of Bryan

Smith, the deputy sheriff who executed the narcotics search on the Barraza residence. In his

affidavit, Smith swore Sammy Barraza showed him the location of a bag with marijuana, as well

as packaging material, a digital scale, and eight firearms located throughout the house. Smith

also found $357.96 in U.S. currency in Sammy Barraza’s pocket. Smith explained he believed

the Barrazas acquired valuable items with the proceeds of narcotics trafficking, and this belief

led him to seize, among other things, the 2002 Cadillac Deville parked outside the Barraza

residence.

        However, the affidavit provides no evidence the vehicle was used or intended to be used

in the commission of narcotics trafficking, or that it was proceeds derived from such felony. See

Silver Chevrolet Pickup VIN 1GCEC14T7YE257128, 140 S.W.3d at 692; see also TEX. CODE

CRIM. PROC. ANN. art. 59.01(2)(A)-(D). There is no evidence in the record connecting the


4
  Although Cardenas presents his second point of error as a sufficiency challenge, this court must review the
evidence under the standard of review applicable to appeals from summary judgments.

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Barrazas to the vehicle, other than the fact it was parked outside their home. We hold that

simply because the vehicle was parked in or near a residence containing narcotics does not

establish the nexus between the vehicle and the sale or distribution of narcotics. See $7,058.84

in U.S. Currency v. State, 30 S.W.3d 580, 587 (Tex. App.—Texarkana 2000, no pet.) (noting fact

that money is found at or near controlled substance does not establish by itself nexus between

money and sale

or distribution of a controlled substance).

       Furthermore, in reviewing other forfeiture cases and the evidence used to establish a

nexus between the property forfeited and drug trafficking, this court finds no evidence of the

kind that reflects the vehicle may have been connected to the Barraza’s alleged narcotics

trafficking. See, e.g., $43,774.00 U.S. Currency v. State, 266 S.W.3d 178, 186 (Tex. App.—

Texarkana 2008, pet. denied) (noting secret compartments in vehicle forfeited and alerted by

drug dog were evidence supporting nexus between vehicle and drug trafficking). Thus, we hold

the deputy’s affidavit does not, as a matter of law, establish a nexus between the vehicle and

narcotics trafficking. See Rhone-Poulenc, Inc., 997 S.W.2d at 223 (noting plaintiff moving for

summary judgment must establish each element of claim as a matter of law in order to be entitled

to summary judgment); $11,014.00, 820 S.W.2d at 785 (stating State must establish reasonable

belief that substantial nexus or connection exists between property to be forfeited and statutorily

defined criminal activity).

       The State also relied on requests for admissions served on the Barrazas as summary

judgment evidence to establish the car was contraband. Those requests for admissions asked the

Barrazas to admit, concerning the 2002 Cadillac Deville, that: (1) it was subject to seizure and

forfeiture; (2) it was in their possession and under their control; (3) it was proceeds gained from



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the commission of a felony under Texas Health and Safety Code sections 481.120 and 481.121

and a felony under Texas Penal Code section 34.02; and (4) the vehicle was acquired with

proceeds gained from the commission of a felony under Texas Health and Safety Code sections

481.120 and 481.121 and a felony under Texas Penal Code section 34.02. The Barrazas did not

respond to the request for admissions, and therefore, the requests were deemed admitted by the

Barrazas.     See TEX. R. CIV. P. 198.2(c) (noting unanswered requests for admissions are

considered admitted without court order).

         Although deemed admissions are competent summary judgment evidence, TEX. R. CIV.

P. 166a(c), Acevedo, 131 S.W.3d at 105, the admissions are only conclusively established as to

the party making the admission.              Carrillo, 885 S.W.2d at 214.             Therefore, the Barrazas’s

admissions are only conclusively established against them, not Cardenas; he was never served

with any requests for admissions. The State argues Cardenas did not object to the Barrazas’s

admissions by filing a controverting affidavit or any other competent summary judgment

evidence. However, the State fails to cite any authority, and we have found none, that requires a

party to object to another’s deemed admissions.

         We recognize forfeiture law, as a civil matter, is subject to a lesser standard of proof. See

$43,774.00 U.S. Currency, 266 S.W.3d at 188. However, we hold the State’s evidence did not

meet this lesser standard of proof and raised only a mere suspicion that the vehicle was

contraband, and did not establish, as a matter of law, a reasonable belief that a substantial nexus

exists between the vehicle forfeited and the Barraza’s narcotics trafficking. 5 See $27,877.00


5
  We recognize that under Article 59.02(h)(1) of the Texas Code of Criminal Procedure, property may not be
forfeited if the owner, at the forfeiture hearing, proves by a preponderance of the evidence that he was not a party to
the offense giving rise to the forfeiture and that the contraband was stolen, purchased with money stolen from the
owner, or used without the effective consent of the owner in the commission of the offense. TEX. CODE CRIM.
PROC. ANN. art. 59.02(h)(1) (West Supp. 2011). However, in the context of summary judgment, as in this case, it is
the State who has the burden to prove the nexus between the property and the offense as matter of law before the
property owner has any burden of proof.

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Current Money of U.S., 331 S.W.3d at 114; $11,014.00, 820 S.W.2d at 785. Accordingly, we

sustain Cardenas’s second point of error and reverse the trial court’s judgment.

                                                  CONCLUSION

         We reverse the trial court’s summary judgment forfeiting Cardenas’s interest in the 2002

Cadillac Deville and remand for further proceedings consistent with this court’s opinion. 6


                                                          Marialyn Barnard, Justice




6
  We note that in our judgment we assess costs against the State of Texas. See Tex. Att’y Gen. Op. No. DM-459
(1997) (stating that in absence of provision exempting State from liability for costs in particular case, State, like
other parties, is liable for costs).

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