









02-10-035-CV














 
 
 
 
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 02-10-00035-CV
 
 



$27,877.00 CURRENT MONEY OF THE UNITED STATES


 


APPELLANT



                                                                                                                             
V.
 



THE STATE OF TEXAS


 



   
   APPELLEE



 
 
------------
 
FROM THE 211TH
 DISTRICT COURT OF DENTON
COUNTY
 
------------
 
OPINION
 
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Appellant
Brendan Scott Roberts 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 (Vernon Supp. 2010).  In four points, Roberts challenges the
validity and constitutionality of the seizure and the factual sufficiency of
the evidence supporting the trial court’s conclusion that the seizure was
proper.  We affirm.
Background Facts
In
March 2007, Carrollton Police Department Narcotics Officer Mai Tran received
information from a confidential informant that Roberts was trafficking marihuana
and alprazolam (also known as Xanax) from a house in The Colony, Texas, where
Roberts lived with his girlfriend and some friends.  Officer Tran obtained a search warrant from a
City of Carrollton magistrate (with jurisdiction in Dallas and Denton Counties)
and executed the warrant at 4249 Malone Avenue, The Colony, Texas (the Malone
address), in Denton County.  
At
the Malone address, Carrollton police officers found 8.5 tablets of alprazolam,
2 tablets of hydrocodone, 4.48 grams of marihuana, and $4,857 in cash.  Roberts was arrested. 
After
the arrest, Officer Tran received additional information that Roberts, fearing
that the police would raid his home, had moved drugs and money to two separate
places.  Specifically, the information
was that Roberts had moved drugs to the house of James Savoldi, a friend and
alleged “runner” for Roberts, and had moved money to Roberts’s parents’ house.  Carrollton Police Officer Jeremy Sanchez, a canine
handler, and his dog, Bosko, performed a “sniff search” on Savoldi’s home at
4601 Freeman Drive, The Colony, Texas (the Freeman address), in Denton County.  Bosko “alerted” to an odor at the front door
of the house.  Based on the information
from the informant and the sniff search, Officer Tran obtained a search warrant
for the Freeman address.  
 During the execution of the warrant, Savoldi
admitted to the police that he was holding the drugs for Roberts.  Savoldi had hidden a black gym bag with
approximately two pounds of marihuana at the Freeman address.  When he heard from Roberts’s girlfriend that
the police had searched the Malone address, Savoldi took the bag of marihuana from
his house to a hotel in Addison, Texas, where it was later confiscated by Carrollton
police officers.  Roberts pleaded guilty
to the felony offense of possession of more than four ounces but less than five
pounds of marihuana for the marihuana that the officers found in the Addison
hotel room.  
While
in jail, Roberts made a phone call and advised an unknown person that “the
money” was in a bag under his brother’s bed at Roberts’s parents’ house, 4628
Archer Drive, The Colony, Texas (the Archer address), in Denton County.  Officer Sanchez and Bosko conducted a sniff
search around the exterior of the Archer address, and Bosko alerted at the
bottom of the garage door.  Officer Tran
obtained a search warrant for the Archer address from the same magistrate in
Carrollton as the previous two warrants and executed that warrant.  There, the police found $23,020 under the brother’s
bed, in bills of various denominations, tied with hair bands.  In a written statement to the police, Roberts’s
brother denied any knowledge or ownership of the money.
The
money recovered from the Archer address was taken to the Carrollton Police
Station, where Officer Sanchez conducted another sniff search.  This time, he took three new paper bags and
put the money in one of them.  Each bag
was closed by folding over the top and all three bags were placed in a hallway
about six feet apart.  Bosko sniffed all
three bags and alerted on the sack containing the money.
In
April 2007, the State filed its notice of seizure and intended forfeiture,
alleging, among other things, that Roberts owned the money and that it was
contraband as proceeds from the sale of narcotics.  Roberts denied the allegations and asserted
affirmative defenses, including illegal search and seizure.
After
the asset forfeiture hearing, the trial court issued forty findings of fact and
four conclusions of law in which it concluded that the $23,020 seized from the
Archer address “is the proceeds of Brendan Roberts’s illegal drug trafficking
activities,” and is therefore contraband. 
The trial court ordered the money to be forfeited to the State under
article 59.02 of the code of criminal procedure.[1]  This appeal followed.
Standard
of Review
Forfeiture
proceedings are civil in nature.  Tex. Code
Crim. Proc. Ann. art. 59.05(b) (Vernon 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), 59.02(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.  To show probable cause, the State must
establish 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 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)).

Discussion
I.
We
address Roberts’s second issue first, as it is arguably dispositive.  See
Tex. R. App. P. 47.1.  Roberts claims the
search at the Archer address was unlawful because it was conducted by
Carrollton police officers outside Carrollton city limits.  Roberts directed the trial court to the local
government code and to State v. Kurtz,
152 S.W.3d 72 (Tex. Crim. App. 2004), to support his argument that Carrollton
police only have jurisdiction within their city limits for any action they take
in their police capacity.  Because the
search occurred in The Colony and not in Carrollton, he contends the search was
illegal.  Roberts further argues that the
trial court erred by applying a good-faith exception sua sponte and based upon insufficient evidence.
The
local government code grants general-law municipalities the right to establish
and regulate a municipal police force.[2]  Tex. Loc. Gov’t Code Ann. § 341.001(a)
(Vernon 2005).  Section 341.001, which is
entitled “Police Force of a Type A General-Law Municipality,” further states
(e)   A
police officer has:
 
            (1)   the powers, rights, duties, and jurisdiction
granted to or imposed on a peace officer by the Code of Criminal Procedure; and
 
            (2)   other powers and duties prescribed by the
governing body.
 
(f)    A police officer
may serve in each county in which the municipality is located all process
issued by a municipal court.
 
Id. 
Section 341.003 is entitled “Police Force of a Home-Rule Municipality”
and says only that “[a] home-rule municipality may provide for a police
department.”  Id. § 341.003.  Roberts
argues that because the local government code specifically grants general-law
municipal police departments countywide jurisdiction, but does not similarly
grant it to home-rule municipalities, home-rule police departments must
therefore have only citywide jurisdiction.
          Home-rule municipalities are different
from general-law municipalities because a “home rule city derives its power not
from the Legislature but from Article XI, Section 5, of the Texas Constitution.”  Lower
Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975); see also Tex. Const. art. XI, § 5.  They possess “the full power of self
government and look to the Legislature not for grants of power, but only for
limitations on their power.”  Dallas Merchs.’ & Concessionaire’s Ass’n
v. City of Dallas, 852 S.W.2d 489, 490–91 (Tex. 1993).  A
home-rule municipality’s powers may therefore be limited by statute, but only
when the legislature’s intention to do so appears “with unmistakable
clarity.”  Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998).  
The
reason that section 341.003 does not grant home-rule police countywide
jurisdiction is because home-rule municipalities do not receive their grants of
power from the legislature.  See Lower
Colo. River Auth., 523 S.W.2d at
643. 
General-law municipalities, on the other hand, do.  See Tex.
Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 645 (Tex. 2004)
(“General-law municipalities . . . are political subdivisions created by the
State and, as such, possess those powers and privileges that the State
expressly confers upon them.”).  We do
not see in local government code sections 341.001 or 341.003, or in any other
statute, any clear intent by the legislature to restrict a home-rule
municipality police force to a jurisdiction any less than that of a general-law
municipality.
In
Britt v. State, 768 S.W.2d 514, 515
(Tex. App.—Fort Worth 1989, no pet.), we held that police officers of the City
of Arlington had countywide jurisdiction to execute search warrants.  Arlington is a home-rule municipality.  See
The Charter of the City of Arlington Texas, http://www.arlingtontx.gov/citycharter/index.html
(last visited Nov. 29, 2010).
 Roberts argues that amendments enacted to
the local government code in 1995 superseded Britt.  See Act of June 16, 1995, 74th Leg., R.S., ch. 829, secs. 2–3
(amended 1995) (current version at Tex. Loc. Gov’t Code Ann. §§ 341.001–021
(Vernon 2005)).  However, in Brother v. State, 85 S.W.3d 377, 385
(Tex. App.—Fort Worth, 2002), aff’d
166 S.W.3d 255 (Tex. Crim. App. 2005), we addressed the effects of the 1995
amendments on the jurisdiction of police officers.  See
Tex. Loc. Gov’t Code Ann. § 341.001.  We
noted that the former government code sections linked the jurisdiction of
general-law municipal police officers to the jurisdiction of the sheriff, which
was specified in the code of criminal procedure to be countywide.  Id.
at 383; see also Tex. Code Crim. Proc.
Ann. art. 2.17 (Vernon 1977).  The 1995
amendments to the statutes eliminated the language that defined the geographic
scope of city police officers’ jurisdiction. 
However, we concluded that the legislative history indicated no intent
to shrink police officers’ jurisdiction. 
Id. at 384 (“To the contrary,
the House Research Organization bill analysis explained that the purpose of the
legislation was to broaden city police officers’ authority . . . .”).  Brother
supports our belief that Britt is
still good law and the jurisdiction for home-rule municipal police officers to
execute search warrants remains county-wide.
          Kurtz,
which Roberts cites in support of a citywide limitation on jurisdiction, is
inapplicable to the present case.  Kurtz addresses the jurisdiction of
officers making arrests without a warrant. 
152 S.W.3d at 75–76.  Prior to the enactment of a statute that
specifically and clearly limited the jurisdiction of certain peace officers,
including home-rule police forces, jurisdiction for warrantless arrests was
countywide.  Id.  The 1995 act restricted
that jurisdiction.  Id.; see also Tex. Code
Crim Proc. Ann. art. 14.03 (Vernon Supp. 2010); Act of June 16, 1995, 74th
Leg., R.S., ch. 829, sec. 1, (amended 1995) (current version at Tex. Code Crim.
Proc. Ann. Art 14.03). Roberts has not argued that there is any act that has
likewise limited the jurisdiction of officers in regards to search warrants.
          Further, it is the duty of every peace
officer, when a search warrant is duly delivered to him, to “execute it without
delay.”  Tex. Code Crim. Proc. Ann. art.
18.06 (Vernon 2005).  A search warrant is
sufficient if it “command[s] any peace officer of the proper county to search
forthwith the person, place, or thing named.” 
Id. art. 18.04.  The search warrants in this case command “the
Sheriff or any Peace Officer of DENTON County, Texas or any Peace Officer of the
State of Texas.”  City police officers
are “peace officers” as defined by the code of criminal procedure article 2.12(3).  Id.
art. 2.12(3) (Vernon 2005).  The penal
code does not define the phrase “of the county” or “of the State of Texas,” but
since a warrant must command a peace officer “of the proper county,” we take
“Peace Officer of DENTON County” to mean a peace officer with jurisdiction throughout
Denton County.  Because the search
warrant was issued in Carrollton, in Denton County, by a magistrate with
jurisdiction in Denton County, to Carrollton police officers with jurisdiction
in Denton County, the Carrollton police officers acted within their duty to
accept the search warrants and execute them. 

We
hold that a home-rule municipal police force’s jurisdiction for the execution
of a valid search warrant is at least as broad as that of a general-law
municipality, that is, at least countywide. 
See Brother, 85 S.W.3d at 385 (holding the jurisdiction of a type A
municipality police officer is “at least county-wide”).  Such a holding is not inconsistent with the constitution,
the general laws, nor the city’s charter. 
See Proctor, 972 S.W.2d at 733
(“[A] home rule city . . . has all the powers of the state not inconsistent
with the Constitution, the general laws, or the city’s charter.”).
As
it is undisputed that Carrollton is located in the county in which the search
warrant was issued and in which the search took place, the execution of the
search warrant by Carrollton police officers on the Archer address in The
Colony was lawful.  As it was a lawful
search, we need not address Roberts’s good-faith-exception argument.  We overrule Roberts’s second point of error.
II.
     In his first point, Roberts
complains that the trial court’s determination that the money was contraband
was not based on factually sufficient evidence. 

Findings
of fact entered in a case tried to the court have the same force and dignity as
a jury’s answers to jury questions.  Anderson
v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).  The trial court’s findings of fact are
reviewable for legal and factual sufficiency of the evidence to support them by
the same standards that are applied in reviewing evidence supporting a jury’s
answer.  Ortiz v. Jones, 917 S.W.2d
770, 772 (Tex. 1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.
1994).  
When
reviewing an assertion that the evidence is factually insufficient to support a
finding, we set aside the finding only if, after considering and weighing all
of the evidence in the record pertinent to that finding, we determine that the
evidence supporting the finding is so weak, or so contrary to the overwhelming
weight of all the evidence, that the answer should be set aside and a new trial
ordered.  Pool v. Ford Motor Co.,
715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g) overruled on other grounds by Crown Life
Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000); Garza v. Alviar,
395 S.W.2d 821, 823 (Tex. 1965); In re King’s Estate, 150 Tex. 662, 244
S.W.2d 660, 661 (1951).  
At
trial, it was the State’s burden to establish, by a preponderance of the
evidence, a substantial nexus or connection between the property to be
forfeited and the statutorily defined criminal activity, which it may do by
circumstantial evidence.  $11,014.00, 820 S.W.2d at 785.  That is, the State must show that it must be
more reasonable than not that the money was derived from the sale of controlled
substances.  $9,050.00 in U.S. Currency v. State, 874 S.W.2d 158, 161 (Tex.
App.—Houston [14th Dist.] 1994, writ denied). 

The trial court made the following relevant findings
of fact regarding the $23,020:
7.       Carrollton P.D. received . . . information
that Mr. Roberts had removed the marijuana and money from [the Malone address]
and was hiding the marijuana and additional proceed money in two separate
places to avoid said items from being seized by police.
 
. . . .
 
10.     Carrollton P.D. received additional
information that Mr. Roberts’s drug money was possibly at [the Archer address].
. . .
 
          . . . .
 
12.     K-9 Bosko alerted at . . . the garage door
at the Archer address.
 
. . . .
 
22.     At the Archer address, Carrollton P.D.
officers located a black bag under the bed of Benjamin Roberts, brother of
Brendan Roberts.
 
23.     The black bag contained several rolls of
U.S. currency wrapped with hair ties.
 
24.     Benjamin Roberts provided a written
statement to police that the money did not belong to him and that he did not
know said bag of money was under his bed.
 
25.     $23,020.00 was recovered from the black
bag.
 
. . . .
 
27.     At the police station, K-9 Officer Sanchez
used K-9 Bosko to conduct an open air sniff on the
$23,020.00.
 
. . . .
 
31.     K-9 Bosko only alerted on the bag
containing the U.S. currency which indicated that the money contained an odor
of marijuana or some other illegal substance which Bosko is trained to detect.
 
32.     The marijuana which Brendan Roberts gave to
James Savoldi and which was recovered from the hotel weighed 2.20 pounds.  The street value of two pounds of marijuana
is approximately $7,000.
 
. . . .
 
34.     Carrollton P.D. conducted an employment
history investigation through the Texas Workforce Commission which revealed
that Brendan Roberts had not worked since 2001.
 
. . . .
 
37.     On October 16, 2007, in F-2007-1267-A in
the 16th District Court of Denton County, Texas, Brendan Roberts plead guilty
to the marijuana he gave James Savoldi and was convicted of the instant State
Jail Felony Offense of Possession of Marijuana Greater than Four Ounces and
Less than Five Pounds and sentenced to 180 days in jail. [3]
 
          The undisputed evidence showed that
Roberts had been unemployed for six years.  There was no evidence of a legitimate job or
any other legal source of income. 
$23,020 is a large amount of cash for anyone to possess, and it is
particularly notable that it was found in various denominations in a bag tied
with hair bands.  No one else claimed
ownership of the money, including Roberts’s brother in whose room it was
found.  In fact, Roberts’s brother
specifically disclaimed any knowledge or ownership of the money.  
Roberts
pleaded guilty to possession of marihuana for the drugs he had given James
Savoldi to hide.  Roberts hid that marihuana
when he thought his house might be raided.  At that same time, he hid the money in
question.  Roberts’s criminal history
also included a 2000 felony conviction for manufacture and delivery of a
controlled substance.  Roberts also did
not argue that the drugs and the money at the Malone address were not his.  Roberts’s own statements in a phone call from
jail alerted the authorities that he had hidden money.  While the money and the drugs in this case were
not found in close proximity to each other, the evidence is more than adequate
to show that Roberts made a conscious effort to hide the two in different
locations.  Further, there was a positive
alert by the narcotic-detecting canine on the money after it was recovered.  
Considering
all the evidence in this case, we cannot say that the foregoing evidence is so
weak or the evidence to the contrary is so overwhelming that the judgment
should be set aside.  See Garza, 395 S.W.2d at 823.  Accordingly, we hold that the evidence is
factually sufficient to support the trial court’s determination and we overrule
Roberts’s first point.
III.
In
his third point, Roberts complains of the admission of expert testimony by
Officer Sanchez, the Carrollton police officer who conducted the dog sniff
searches on the Freeman and Archer addresses and on the money at issue.  At the hearing, Roberts objected to Officer
Sanchez’s testimony because the State “failed to give [him] any opinion, any
certification, or any other information” and complained that the State did
nothing more than “simply just name him as an expert.”  On appeal, Roberts complains that the State
failed to provide a complete response to his requests for disclosure.  When Roberts objected at the trial, the judge
asked if any objection or motion to compel had been filed.  Roberts answered no and the court overruled
the objection.  Roberts argues that the
trial judge abused his discretion by applying the wrong standard.  Roberts does not specify what the State
failed to provide, but it appears that he complains that he was not given the
requested mental impressions and opinions of Officer Sanchez.  
The rule requiring disclosure of the expert’s testimony before
trial is intended “to provide adequate information about the expert’s opinions
to allow the opposing party the necessary information to prepare to
cross-examine the expert and to rebut this testimony with its own experts.”  Elhamad
v. Quality Oil Trucking Serv., Inc., No. 02-02-00412-CV, 2003 WL 22211543,
at *6 (Tex. App.—Fort Worth Sept. 25, 2003, no pet.) (mem. op.) (citing Exxon
Corp. v. W. Tex. Gathering Co., 868 S.W.2d 299, 304 (Tex. 1993)).  When a party responds to a written discovery
request, the party must “make a complete response, based on all
information reasonably available to the responding party or its attorney at the
time the response is made.”  Tex. R. Civ.
P. 193.1.  Failure to provide a response
to a request for disclosure results in the automatic exclusion of the witness’s
testimony, unless the trial court finds good cause or lack of surprise or
prejudice.  Tex. R. Civ. P. 193.6; VingCard, A.S. v. Merrimac Hospitality Sys.,
Inc., 59 S.W.3d 847, 856 (Tex. App.—Fort Worth 2001, no pet.).
The
admission or exclusion of evidence is within the trial court’s sound
discretion.  State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex.
2001).  A trial court abuses its
discretion when it acts without regard to any guiding rules or principles.  Id.  In determining whether there was an
abuse of discretion, we must ascertain whether the trial court’s finding served
the purpose of thwarting “[legal] gamesmanship and trial by ambush.”  Wells v.
HCA Health Servs. of Tex., Inc., 806 S.W.2d 850, 852 (Tex. App.—Fort Worth
1990, writ denied).
Pursuant
to Texas Rule of Civil Procedure 194.2, Roberts properly requested that the
State disclose, for all testifying experts:
(1)        
The expert’s name, address and telephone number;
(2)        
The subject matter on which the expert will
testify;
(3)        
The general substance of the expert’s
impressions and opinions and a brief summary of the basis for them; and
 
(4)        
All documents, tangible things, reports, models
or data compilations that have been provided to, reviewed by or prepared by or
for the expert in anticipation of the expert’s testimony.
 
Tex.
R. Civ. P. 194.2. 
As
to Officer Sanchez, the State responded, “Officer [Sanchez][4] is
one of the investigating officers, and will provide testimony regarding the
detection of contraband, and the nexus connecting the res to the illegal activity.”  The State further identified all the
designated police officers as “experts in the field of law enforcement,
including but not limited to, the detection of illegal activity, to wit:  drug detection, interdiction and
possession.  As such, they will provide
testimony regarding the detection of contraband, and the nexus connecting the res to the illegal activity.”  The State also attached an affidavit by
Officer Tran, in which she described in detail the open-air sniffs conducted by
Officer Sanchez and his K-9 Bosko on the Freeman and Archer addresses and the
sniff conducted by Officer Sanchez and Bosko on the currency at the Carrollton
Police Department, and noted that “K-9 Bosko is trained and certified to detect
and alert to the presence of the odors of Marijuana, Methamphetamine, Cocaine,
Heroin, and their derivatives.” 
We
have said before that failure to respond to a request for the mental
impressions and opinions of the expert is a complete failure to respond,
triggering the automatic exclusion under Rule 193.6, VingCard, 59 S.W.3d at 856, not just an incomplete answer, which
the Texas Supreme Court has held requires a pretrial objection or a pretrial
motion to compel or for sanctions, State
Farm Fire & Cas. Co. v. Morua, 979 S.W.2d 616, 619–620 (Tex. 1998).  In VingCard,
plaintiff Merrimac identified an expert who would provide an opinion projecting
future sales and damage to Merrimac’s reputation caused by defendant
VingCard.  59 S.W.3d at 854.  VingCard objected at trial that Merrimac
failed to disclose the expert’s mental impressions and opinions and their bases.  Id.
at 855.  Because Merrimac wholly failed
to inform VingCard how its expert arrived at his projections, VingCard was
unable to prepare to cross-examine the witness at trial.  Id.
at 856.
Unlike
VingCard, the State in this case did
inform Roberts of the opinions of Officer Sanchez, and the bases thereof.  Here, the State disclosed that Officer
Sanchez would testify to “the detection of contraband, and the nexus connecting
the res to the illegal
activity.”  The State attached to its
response to Roberts’s requests for disclosure Officer Tran’s affidavit.  The affidavit stated that Officer Sanchez’s
K-9 partner was “trained and certified” in drug detection and described the
three sniffs conducted.  It detailed the
open air sniffs of both the houses on Archer and Freeman as well as the procedure
in the hallway of the police department. 
The affidavit described how Officer Sanchez used Bosko to conduct a
sniff on the seized currency and that the K-9 alerted only to the bag
containing the money.  At trial, this is
what Officer Sanchez testified to.  We
cannot say that the State completely failed to respond to Roberts’s requests
for disclosure.  Nor can we say that
Roberts was surprised or prejudiced by Officer Sanchez’s testimony.  The testimony was within the subject matter
that the State declared, and the sniff procedures were described at trial just
as they were in Officer Tran’s affidavit. 
Thus, Roberts was sufficiently informed so that he could prepare for
meaningful cross-examination of the State’s expert witness.  
The
trial judge did not abuse his discretion by overruling Roberts’s objection.  We overrule Roberts’s third point.
IV.
Roberts
argues that the forfeiture of the $23,020 is an unconstitutionally excessive
fine under the Eighth Amendment.  For the
reasons stated below, we disagree.
The
Eighth Amendment prohibits the imposition of excessive fines.  U.S. Const. amend. VIII.  The United States Supreme Court has
determined that the Eighth Amendment applies to forfeitures “if they constitute
punishment for an offense.”  United States v. Bajakajian, 524 U.S.
321, 328, 118 S. Ct. 2028, 2033 (1998).  Whether
the forfeiture of drug proceeds is subject to the Eighth Amendment is unsettled
in Texas.  Compare U.S. v. Betancourt, 422 F.3d 240, 250 (5th Cir. 2005)
(stating that after Bajakajian the
Eighth Amendment still does not apply to the forfeiture of drug proceeds) with One Car, 1996 Dodge X-Cab Truck v.
State, 122 S.W.3d 422, 427 (Tex. App.—Beaumont 2003, no pet.) (applying the
Eighth Amendment to article 59.02 forfeitures); see also Tex. Code Crim. Proc. Ann. art. 59.05(e) (Vernon 2006)
(“It is the intention of the legislature that asset forfeiture is remedial in
nature and not a form of punishment.”).  
Assuming
without deciding that forfeiture of the $23,020 is subject to the Eighth
Amendment’s excessive fines clause, and under the analysis set forth in Bajakajian, we do not believe the
forfeiture in this case to be unconstitutionally excessive.  Roberts’s offense is a serious one involving illegal
drugs.  The offense occurred in the
context of other alleged illegal activities, including possession of other
illegal substances.[5]  The information provided by the informant was
that Roberts was trafficking drugs and the evidence in this case showed that
Roberts was knowledgeable enough of police investigations of drug dealers to
move his drugs and money to separate locations for hiding.  The civil forfeiture statute unquestionably
targets drug traffickers.  See Tex. Health & Safety Code Ann. §
481.112(b) (Vernon 2010); Tex. Code Crim. Proc. Ann. arts. 59.01(2)(B)(i),
59.02(a) (Vernon Supp. 2010).  The
evidence in this case demonstrated that Roberts had no other source of income
and that the extent of his criminal activity went beyond mere possession of marihuana.
 The marihuana had a street value of
$7,000, drug trafficking is known to correlate with violence, see 1992 BMW v. State, No.
04-07-00116-CV, 2007 WL 2608364, at *2 (Tex. App.—San Antonio Sept. 12, 2007,
no pet.) (mem. op.) (quoting Thomas v.
State, 916 S.W.2d 578, 583 (Tex. App.—San Antonio 1996, no writ)) (“Studies
clearly demonstrate the direct nexus between illegal drugs and crimes of
violence.”), and the trial court expressed concern that there was “$27,877.00
worth of harm” to the State.  So the
seriousness of Roberts’s criminal activity and the destructive effects of drugs
on today’s society weigh heavily in analyzing proportionality.  
Roberts’s
offense was a state jail felony with a maximum of two years’ imprisonment and a
fine not to exceed $10,000.  Tex. Penal
Code Ann. § 12.35(a), (b) (Vernon 2003). 
Thus, the proceeds to be forfeited are roughly 2.3 times the maximum
statutory fine.  Courts have held that a
forfeiture of twice the maximum fine is not grossly disproportionate.  See,
e.g., 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).  In
light of the gravity of Roberts’s offense, we do not find the forfeiture of
$23,020 grossly disproportionate.  We
overrule Roberts’s fourth point of error. 
Conclusion
Having
overruled all of Roberts’s points, we affirm the trial court’s judgment.
 
 
                                                                             
 
 
 
 
 
 
 
 
 LEE GABRIEL
                                                                             
 
 
 JUSTICE
 
PANEL:  
 
 
 
 
 
 
 DAUPHINOT, 
 
 
 
 
 
 WALKER, and GABRIEL, JJ.       
 
DAUPHINOT, J., filed a concurring and dissenting opinion.
 
DELIVERED:  December 23, 2010
 





















 
 
 
 





 
 
 
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 02-10-00035-CV 
 
 



$27,877.00 Current Money of
  the United States


 


APPELLANT




 
V.
 




The State of Texas


 


APPELLEE 



 
 
------------
 
FROM THE 211th District Court
OF Denton COUNTY
------------
CONCURRING
AND DISSENTING OPINION
----------
          I agree with the majority that the
seizure of the property was proper.  I
cannot agree, however, with the majority’s acceptance of Bosko’s amazing
abilities and expertise.
          Regarding the search of Savoldi’s
house, the majority, in its thorough and otherwise scholarly opinion, treats
Bosko’s “sniff search hit” on the front door of a drug runner’s house as
evidence that Roberts’s marijuana, as opposed to all other drugs in the world,
was inside the drug runner’s house.  Of
course, the record makes clear that the marijuana was not in the house, despite
Bosko’s “hit.”
          Regarding the search of Roberts’s
parents’ house and the nexus between Roberts and the money found underneath his
brother’s bed, Bosko conducted a sniff search and alerted at the bottom of the
garage door.  Somehow, that was evidence
below and accepted as evidence by the majority that cash was located underneath
a bed inside the house.  The connection
between a hit for drugs at the bottom of a garage door and money underneath a
bed inside the house escapes me.
          After the police seized the money from
underneath the bed, it was taken, presumably, in a police unit that had
transported drugs and drug users in the past—if police testimony of all the
drugs found hidden behind the back seats of police units is to be believed—to
the Carrollton police station, where Officer Sanchez put the money in one of
three brand new paper bags.  Again, one
wonders how many drugs and drug users had been brought into the Carrollton police
station before the cash in question arrived and how thoroughly either the
police station or the police car was cleaned between seizures.  
Miraculously,
the Amazing Bosko alerted on the sack containing the money.  Apparently, Bosko had solved the case and
provided Officer Sanchez the provenance of the money.  Bosko “proved” to the police that Roberts owned
the money and that it was contraband as proceeds from the sale of narcotics.
          The Texas Court of Criminal Appeals has recently
dealt with the issue of dog-sniff lineups in Winfrey v. State.[6]  In that
case, a man named Burr was found murdered in his home.  As the Winfrey
court noted in the opinion, 
          Investigators collected a
variety of forensic evidence from the crime scene including: a partial bloody
fingerprint, a bloody shoe print, and several hair samples.  Neither the prints nor the hair samples
matched appellant.  Investigators were
able to obtain a DNA profile from evidence at the crime scene,
however, the profile excluded appellant and his family members.[7]
          The police, though,
received a jailhouse tip that Winfrey had told his cellmate that he had heard
some things about the murder, how it was committed, and what had been
stolen.  The Winfrey court then described the following procedure:
          To assist in the investigation, Texas Ranger Grover Huff
contacted Deputy Keith Pikett, a dog handler with the Fort Bend County Sheriff’s
office.  Deputy Pikett testified about a
“scent lineup” that he conducted nearly three years after the murder in August
2007.  He used his three bloodhounds,
Quincy, James Bond, and Clue.  This
involved obtaining scent samples from clothing that the victim was wearing at
the time of his death and from six white males, including [Winfrey].  The dogs were “pre-scented” on the scent
samples obtained from the victim’s clothing. 
The dogs then walked a line of paint cans containing the scent
samples of the six white males.  All
three dogs alerted on the can containing [Winfrey’s] scent sample.
 
          Based on this, Deputy Pikett concluded
that [Winfrey’s] scent was on the victim’s clothing. Deputy Pikett testified on
cross-examination that an alert only establishes some relationship between the
scent and objects and that scent detection does not necessarily indicate
person-to-person contact.  Deputy Pikett also testified on cross-examination
that his understanding of the law was that convicting a person solely on a dog
scent is illegal.[8]
 
The Winfrey court then discussed the validity of the science of dog
sniffing:
          .
. . [T]he science underlying canine-scent lineups has been questioned; thus, we
think it proper to briefly address the issue. 
Law-enforcement personnel have long utilized canines in crime
management.  For example, dogs have been
employed for detecting narcotics and explosives, for tracking trails, in
search-and-rescue operations, for locating cadavers, and for discriminating
between scents for identification purposes. 
In thousands of cases, canines and their handlers have performed with
distinction.  Despite this success, we
acknowledge the invariable truth espoused by Justice Souter that “[t]he
infallible dog, however, is a creature of legal fiction.” 
          This
case pertains to canines used to discriminate among human scents in order to
identify a specific person in a lineup. 
This process is often referred to as human-scent discrimination.  Some courts, including the Fourteenth Court
of Appeals, have determined that for purposes of admissibility, “there is
little distinction between a scent lineup and a situation where a dog is required
to track an individual’s scent over an area traversed by multiple
persons.”  Other courts, such as the
Supreme Court of Florida, have distinguished scent lineups from dog tracking. 
 

          Cases involving the use of dogs,
usually bloodhounds, to track humans are abundant and the law is well settled
in regards to admissibility of such evidence with only a minority of courts
outright rejecting bloodhound evidence. 
Fewer courts have addressed the question of whether dog evidence is sufficient
to sustain a conviction when it is the only evidence.  However, as early as 1913, our colleagues at
the Supreme Court of Mississippi held . . . dog tracking evidence, alone and
unsupported, to be insufficient to affirm a conviction.  And as recently as 1983, the Supreme Court of
Washington agreed.  In fact, our research
suggests the courts that have passed on this issue have concluded that
dog-scent evidence, when admissible, is insufficient, standing alone, to
sustain a conviction.  
 
          Like our sister courts
across the country, we now hold . . . scent-discrimination lineups, whether
conducted with individuals or inanimate objects, to be separate and distinct
from dog-scent tracking evidence. “Even the briefest review of the scientific
principles underlying dog scenting reveals that, contrary to the conclusions of
many courts, there are significant scientific differences among the various
uses of scenting:  tracking, narcotics
detection, and scent lineups.”  The FBI
agrees, noting that tracking canines use human scent and environmental
cues to locate the track of an individual. 
Accordingly, we conclude that scent-discrimination lineups, when used
alone or as primary evidence, are legally insufficient to support a conviction.
Like the Supreme Court of Washington, we believe that “[t]he dangers inherent
in the use of dog tracking evidence can only be alleviated by the presence of
corroborating evidence.”  To the extent
that lower-court opinions suggest otherwise, we overrule them and expressly
hold that when inculpatory evidence is obtained from a dog-scent lineup, its
role in the court room is merely supportive.[9]
          As I understand the Winfrey court, a dog may be able to
detect a scent, but not how or when the scent was placed on a person or on an
inanimate object.  With all appropriate
respect to Bosko, the fact that he hit on a drug runner’s front door proves
nothing, other than that at some time drugs or an object that had contacted
drugs or a person or animal using drugs was at the front door.  The hit does nothing to connect Roberts with
the drugs not found in the house. 
Similarly, the fact that Bosko hit on the garage door of Roberts’s parents’
house proves nothing, other than that at some time drugs, even prescription
drugs, or a person or animal using drugs was at the garage door.  The fact that Bosko hit on the cash found
under Roberts’s brother’s bed means only that at some time, before or after the
cash left the mint, somebody smoked a drug or controlled substance in the
vicinity of the cash, or used one or more of the bills to sniff a drug or a
controlled substance or to package a drug or controlled substance, or had the
cash in the vicinity of a drug lab, or in some other manner caused at least one
bill to come close enough to a drug or a controlled substance to pick up the
scent.  Scientists report that as much as
ninety percent of our paper money contains traces of cocaine.[10]  Even Bosko could not tell his handlers
whether the areas he alerted on “contained an odor of marijuana” or whether
they contained an odor of “some other illegal substance which Bosko is trained
to detect.”  
          I also agree that the trial court did
not abuse its discretion by overruling Roberts’s objection to Officer Sanchez’s
testimony on the ground that he was not disclosed as an expert.  My reason for agreeing, however, is that I
cannot agree that Officer Sanchez is an expert. 
Had Roberts objected on the basis that any attempt to use Bosko to
connect the cash or the physical locations to Roberts was junk science, we
would have a different question before us.
The
testimony regarding Bosko’s hits is no evidence of Roberts’s guilt, and I would
so hold.  I would also hold that none of
Bosko’s hits justified any of the searches. 
And were the testimony regarding Bosko’s hits the only evidence of
Roberts’s guilt, I would not concur in the result.  But if we exclude testimony regarding Bosko’s
hits, the evidence remains sufficient to support the trial court’s
determination under the appropriate standard of proof.
For
these reasons, I respectfully dissent from the majority’s deference to the
explanation of Bosko’s actions and the imputation of Bosko’s conclusions but
concur in the disposition of this appeal.
 
 
LEE ANN DAUPHINOT
JUSTICE
 
DELIVERED:  December 23, 2010
 




[1]
The trial court ordered the return of the $4,857 found at the Malone address
because it was not listed on the search warrant return.  


[2]
Although section 341.001 applies to Type A municipalities, the other two types
of general-law municipalities (Type B and Type C) look to grants of power given
to Type A municipalities absent law specifically applying to Type B or Type C
municipalities, respectively.  Tex. Loc.
Gov’t Code Ann. §§ 51.035, 51.051, 51.052 (Vernon 2008).  Since there is no specific
law regarding the jurisdiction of Type B or Type C municipal police officers to
execute search warrants, the jurisdiction for all three types of general-law
municipalities is that which is granted to Type A municipalities.  Id.
§§ 51.035, 51.051, 51.052.   


[3]Roberts also
argues that some of the findings of fact entered by the trial court are not
supported by the record.  In his brief,
Roberts did not identify which findings were not supported by the evidence, but
in an appendix, he did highlight findings (among others not transcribed above)
24 and 34.  These findings are founded
upon information in the affidavits supporting the search warrants, but the
court stated it would not take judicial notice of the facts contained in those
affidavits.  However, additional bases
for each finding complained of can be found in Roberts’s own evidence.  Roberts offered in evidence the State’s
responses to Roberts’s requests for disclosures, which included an affidavit by
Officer Tran.  Roberts did not request a
limitation to their admission.  See Poindexter v. State, 153 S.W.3d 402,
407–409 (Tex. Crim. App. 2005) (holding that all evidence submitted without
objection or limiting request was offered to prove appellant’s guilt).  Out-of-court statements that are admitted
into evidence without objection or request for admission for a limited purpose
can be considered in determining if there was an affirmative link between the
money and the criminal behavior.  See id.
at 409 (“The out-of-court statements of the C.I. have sufficient probative
value, in and of themselves, to establish an affirmative link between appellant
and the crack cocaine found in his home.”). 
Further, Roberts admits there is live testimony supporting finding 24.  
 


[4]The
State’s response to Roberts’s first request for disclosure incorrectly refers
to Officer Sanchez as “Officer Putnam” in this one sentence.  This appears to be a “cut-and-paste”
typo.  Both Officer Sanchez and K-9 Bosko
are correctly identified directly above the sentence.  While Roberts draws attention to the typo in
his brief, he does not seem to argue that it caused any confusion about who was
identified as an expert, or as to what each expert would testify.  


[5]Roberts
was charged with misdemeanor possession of a controlled substance for the alprazolam
found at the Malone address.  The charge
was dismissed after Roberts agreed to plead guilty to the possession of
marihuana. 


[6]
323 S.W.3d 875 (Tex. Crim. App. 2010).
 


[7]Id. at 876.


[8]Id. at 877–78 (citations
omitted).


[9]Id. at 882–84 (citations
omitted).


[10]Madison
Park, 90 Percent of U.S. Bills Carry Traces of Cocaine (Aug. 14,
2009), http//articles.cnn.com/2009-08-14/health/cocaine.traces.money_1_
cocaine-dollar-bills-paper-bills?_s=PM:HEALTH (last visited December 21, 2010).
 


