Ex Parte: Juan Sanchez Gonzales

Ex parte Gonzales IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-94-047-CR EX PARTE: JUAN SANCHEZ GONZALES, APPELLANT FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT NO. CR93-0100-B, HONORABLE CURT STEIB, JUDGE PRESIDING This is an appeal from a pretrial denial of a writ of habeas corpus. Appellant Juan Sanchez Gonzales sought habeas corpus relief asserting that his voluntary settlement agreement with the State of Texas regarding property subject to forfeiture under chapter 59 of the Texas Code of Criminal Procedure was a punitive forfeiture. Appellant contends that this settlement agreement bars his subsequent criminal prosecution for possession and delivery of marihuana under the double jeopardy protection of both the United States and Texas Constitutions. U.S. Const. amend. V; Tex. Const. art. I, § 14. The district court denied the relief. We will affirm. FACTUAL AND PROCEDURAL BACKGROUND On February 4, 1993, the Tom Green County grand jury indicted appellant on four counts of delivery of marihuana and one count of possession of marihuana. Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, §§ 481.120, .121, 1989 Tex. Gen. Laws 2230, 2938-39 (Tex. Health & Safety Code Ann. §§ 481.120, .121, since amended). Before this indictment, the State initiated civil forfeiture proceedings against appellant's residence pursuant to Tex. Code Crim. Proc. Ann. §§ 59.01-.06 (West Supp. 1994). In this forfeiture action the State asserted that appellant used his residence to negotiate sales of, and to deliver, marihuana. Because the residence was used or intended for use in the commission of a felony, the State argued it was contraband subject to seizure and forfeiture. In August 1993 appellant and the State signed a Compromise and Settlement Agreement ("Settlement Agreement") concerning the seized property. After reciting the existence of bona fide disputes and controversies surrounding the forfeitability of the residence, the parties made three specific promises. First, the State agreed to dismiss the forfeiture suit against the residence with prejudice. In return, appellant agreed to pay the State $20,000.00. Finally, they agreed that "this compromise and settlement agreement is not an admission of liability but is a compromise and settlement in lieu of further costly litigation and the terms of this agreement is [sic] not to be used in any criminal proceeding." Appellant paid the $20,000; the State dismissed the forfeiture suit. On September 7, 1993, appellant filed an application for a pretrial writ of habeas corpus with the district court. He contended that the money he paid pursuant to the Settlement Agreement was a substantial punitive forfeiture, requiring that his subsequent criminal prosecution for the possession and delivery of marihuana be barred by the double jeopardy protection of the U. S. and Texas Constitutions. On December 13, 1993, the district court held a hearing on the writ. When appellant tried to introduce the Settlement Agreement into evidence, the State objected on the ground that the terms of the agreement specifically barred its use in any subsequent criminal proceeding. The district court sustained the objection. Appellant then offered the Settlement Agreement in a bill of exceptions. At the conclusion of the hearing, the district court denied habeas corpus relief. The court specifically found there had been no forfeiture: I find that the civil case never reached a stage of forfeiture. I find that a voluntary compromise and settlement agreement was entered into, that the parties had agreed that that settlement agreement was not to be used by either party in the criminal prosecution. . . . [T]he parties wrote their own -- their own terms by that agreement and I think they're bound by it. There is nothing ambiguous in that settlement agreement. It purports to be the entire agreement between the parties. The parties are bound by that. DISCUSSION In a single point of error, appellant contends the district court erred in failing to dismiss the subsequent prosecution because he has already been punished for the conduct that formed the basis of the indictment. In extensive briefing and at oral argument, appellant argues that the $20,000.00 payment under the Settlement Agreement was actually "punishment" for the underlying drug offenses and that, as a result, double jeopardy bars his subsequent criminal prosecution. It is unnecessary for us to reach the merits of this argument, however, because a more fundamental deficiency exists in appellant's position. The Settlement Agreement was not admitted in evidence by the district court at the habeas corpus hearing. While the agreement is contained in a bill of exceptions, in this appeal appellant has not assigned error to its exclusion from evidence by the district court. (1) Since appellant does not complain of this ruling on appeal, he cannot now rely on the terms of the Settlement Agreement as if they were properly before this Court. In the absence of assignment of error, we cannot review the trial court's exclusion of the agreement. See Pope v. State, 715 S.W.2d 859, 862 (Tex. App.Houston [14th Dist.] 1986, pet. ref'd); 26 Tex. Jur. 3d Criminal Law § 4174 (1983) ("The appellate court is only required to review those grounds of error assigned in the trial court by the appellate brief. . . ."); cf. Cooper v. State, 791 S.W.2d 80, 83 (Tex. Crim. App. 1990) (requiring both State and appellant to properly present points of error to the court of appeals for its decision in order to complain of an adverse determination on review). Consequently, we are presented with a record that does not reflect that a forfeiture ever occurred. It is axiomatic that matters not supported by the record cannot provide the basis for decision and cannot be considered. See Lewis v. State, 504 S.W.2d 900, 904 (Tex. Crim. App. 1974); Williams v. State, 485 S.W.2d 274, 275 (Tex. Crim. App. 1972). We overrule appellant's single point of error. The district court's order denying relief is affirmed. J. Woodfin Jones, Justice Before Justices Aboussie, Jones and Kidd Affirmed Filed: October 26, 1994 Do Not Publish 1. Appellant has, since oral argument, filed a motion asking leave to file an amended brief containing a new point of error complaining of the trial court's exclusion of the Settlement Agreement. As a matter of policy, only in rare instances would we consider it appropriate to allow an appellant to add points of error after the appeal has been fully briefed and submitted. Concluding that this is not one of those rare cases in which "justice requires" consideration of appellant's new complaint, we overrule appellant's motion. See Rochelle v. State, 791 S.W.2d 121, 124 (Tex. Crim. App. 1990).