Approximately $6, 801.00 v. State of Texas

Opinion issued June 17, 2010 In The Court of Appeals For The First District of Texas NO. 01-09-00366-CV APPROXIMATELY $6,801.00, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 333rd District Court Harris County, Texas Trial Court Cause No. 2008-20491 MEMORANDUM OPINION Appellant, Michael Philpot, challenges the trial court’s judgment, entered after a bench trial, in favor of appellee, the State of Texas, in the State’s forfeiture action against Philpot for approximately $6,801.00.[1] In his sole issue, Philpot, who represents himself on appeal, contends that the trial court erred in finding that the State established sufficient facts to support forfeiture.[2] We affirm. Background The State, in its Notice of Seizure and Intended Forfeiture, alleged that it had seized contraband property, approximately $6,801.00 in cash from Philpot, Philpot had obtained the money “through illegal activity,” including narcotics trafficking, and the property was subject to forfeiture. Philpot answered, generally denying the allegations. He asserted that he had obtained the money through full-time employment, filed and paid taxes, maintained a bank account, and had no felony narcotics convictions. The State then served Philpot with requests for admissions[3] by certified mail, return receipt requested, at his address in the Columbia County Jail in Lake City, Florida. The State requested that Philpot admit that the money was “not obtained by him through any legitimate means”; was “derived from the sale, purchase, or distribution of controlled substances . . . [and] dangerous drugs”; and, that prior to the date of the seizure, Philpot “conducted drug transactions, including . . . the purchase, sale and/or distribution of controlled substances . . . [and] dangerous drugs.” Philpot did not respond to the State’s requests for admissions. Philpot did not appear for the trial of the case. The trial court found that “all matters separately set forth in [the State’s] Request for Admissions were deemed admitted and conclusively established as to [Philpot],” and it entered judgment that the $6,801.00 “is forfeited.” Philpot filed a “Motion of Appeal,” in which he asserted that the State “has no legal justification as to why [his] currency should not be returned” and he had “proved currency not to be contraband.” Standard of Review In conducting a legal sufficiency review of the evidence, we must consider all of the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). In determining whether legally sufficient evidence supports the finding under review, we must consider evidence favorable to the finding if a reasonable fact finder could consider it, and disregard evidence contrary to the finding unless a reasonable fact-finder could not disregard it. Id. at 827; Brown v. Brown, 236 S.W.3d 343, 348 (Tex. App.—Houston [1st Dist.] 2007, no pet.). When a party attacks the legal sufficiency of an adverse finding on an issue on which he did not have the burden of proof at trial, he must show that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Vongontard v. Tippit, 137 S.W.3d 109, 112 (Tex. App.—Houston [1st Dist] 2004, no pet.). In conducting a factual sufficiency review, we must consider, weigh, and examine all of the evidence that supports or contradicts the trier-of-fact’s determination. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); USAA County Mut. Ins. Co. v. Cook, 241 S.W.3d 93, 99 (Tex. App.—Houston [1st Dist.] 2007, no pet.). We may set aside the judgment only if the evidence that supports the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Cook, 241 S.W.3d at 99. When a party attacks the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof at trial, he must show that there is insufficient evidence to support the adverse finding. Vongontard, 137 S.W.3d at 112. Forfeiture In his sole issue, Philpot argues that the trial court erred in granting the forfeiture because “just cause was show[n] why [the $6,801.00] should be returned” to him. Property that is contraband is subject to seizure and forfeiture. Tex. Code Crim. Proc. Ann. art. 59.02 (Vernon 2008). “Contraband” means “property of any nature, including real, personal, tangible, or intangible, that is . . . used or intended to be used in the commission of any felony under Chapter 481, Health and Safety Code (Texas Controlled Substances Act) [or] any felony under Chapter 483, Health and Safety Code.” Tex. Code Crim. Proc. Ann. art. 59.01(2)(B)(i), (ii) (Vernon Supp. 2009); Tex. Health & Safety Code Ann. §§ 481.112–.114 (Vernon Supp. 2009), § 483.042 (Vernon 2003). In a forfeiture proceeding, the State must prove by a preponderance of the evidence that the property seized is contraband and is, thus, subject to forfeiture. State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991); A 1985 Cadillac Limousine v. State, 835 S.W.2d 822, 825 (Tex. App.—Houston [1st Dist.] 1992, writ denied). To seize a person’s property, the State must show probable cause, that is, 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; $56,700 in U.S. Currency v. State, 730 S.W.2d 659, 661 (Tex. 1987); 1985 Cadillac, 835 S.W.2d at 825. At trial, the State produced the requests for admissions that it had served on Philpot but to which he had not responded. Once an action is filed, a party can serve written requests for admissions. Tex. R. Civ. P. 198.1. When the opposing party does not serve responses to requests for admissions within thirty days, the matters in the requests are deemed admitted against that party. Tex. R. Civ. P. 198.2, 198.3; Wal-Mart Stores, Inc., v. Deggs, 968 S.W.2d 354, 355 (Tex. 1998); Boulet v. State, 189 S.W.3d 833, 836 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Any matter admitted is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. Tex. R. Civ. P. 198.3; Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989). The trial court determined that Philpot had not timely answered the requests, and it deemed the requests “admitted and conclusively established” as to Philpot. See Tex. R. Civ. P. 198.2, 198.3. The deemed facts conclusively established that Philpot had obtained the $6,801.00 not by any “legitimate means” but as a result of the “purchase, sale, or distribution” of controlled substances or dangerous drugs. Viewing the evidence in the light most favorable to the verdict, Philpot’s deemed admissions that he obtained the $6,801.00 as a result of the “purchase, sale, or distribution” of controlled substances or dangerous drugs were admissions of the state jail felony offenses of delivery of controlled substances and dangerous drugs defined in the Health and Safety Code. Tex. Health & Safety Code Ann. §§ 481.112–.114, 483.042. The term “felony” includes state jail felonies. See Tex. Penal Code Ann. § 12.04 (Vernon 2003) (state jail felonies included in list of felonies). The trial court could have found that Philpot’s deemed admissions were sufficient to support a reasonable belief that a substantial connection existed between the funds and the commission of a felony offense defined in the Health and Safety Code. See $11,014.00, 820 S.W.2d at 784; $56,700 in U.S. Currency, 730 S.W.2d at 661; 1985 Cadillac, 835 S.W.2d at 825. Accordingly, we hold that the evidence is legally sufficient to support the trial court’s finding that the $6,801.00 was contraband subject to forfeiture. Viewing the evidence in a neutral light, Philpot asserts that he “complied with all request[s] made by the [State] . . . to provide adequate information showing just cause why his $6,801.00 should be returned to him” and he “has proved currency not to be contraband.” Philpot did not move to withdraw or amend his admissions, and he did not assert that he was not properly served with the requests for admission. See Tex. R. Civ. P. 198.1, 198.2. Thus, the trial court did not err in finding that the admissions were conclusively established as to Philpot. See Tex. R. Civ. P. 198.3; Deggs, 968 S.W.2d at 356. The remainder of the record contains only Philpot’s pleadings, which are not evidence. Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex. 1971); Ceramic Tile Int’l, Inc. v. Balusek, 137 S.W.3d 722, 724–25 (Tex. App.—San Antonio 2004, no pet.); In re Marriage of M.C., 65 S.W.3d 188, 193 (Tex. App.—Amarillo 2001, no pet.). The only evidence, as noted above, was that the $6,801.00 was obtained as the result of the felony “purchase, sale, or distribution” of controlled substances or dangerous drugs. We conclude that the trial court’s finding that the $6,801.00 was contraband subject to forfeiture was not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. See Cain, 709 S.W.2d at 176. Accordingly, we hold that the evidence is factually sufficient to support the trial court’s judgment. We overrule Philpot’s sole issue. Conclusion We affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Justices Jennings, Alcala, and Massengale. [1] See Tex. Code Crim. Proc. Ann. art. 59.01 (Vernon 2006). [2] We construe Philpot’s argument as a challenge to the legal and factual sufficiency of the evidence in support of the trial court’s judgment. See Tex. R. App. P. 33.1(d) (providing that in nonjury case, party may, for first time on appeal, challenge legal and factual sufficiency of evidence). [3] See Tex. R. Civ. P. 198.1.