Ex Parte: Ian Case Lawler

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-94-00740-CR Ex Parte: Ian Case Lawler, Appellant FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT NO. 94-013-K277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING Appeal is taken from the trial court's denial of relief on a pretrial writ of habeas corpus. Appellant is currently under indictment for possession with the intent to deliver a controlled substance, cocaine. He contends that his criminal prosecution is barred by the double jeopardy provisions of the United States and Texas Constitutions because the State's forfeiture of his property is punishment for the same offense for which he is indicted. We will affirm the trial court's denial of habeas relief. The evidence at the habeas hearing consisted solely of exhibits introduced by stipulation or without objection. Appellant introduced the proceedings in a cause styled the State of Texas v. A Safe et al. The notice of seizure and intended forfeiture reflected that on July 6, 1993 peace officers seized "a safe, a .38 caliber Smith & Wesson revolver with pouch and ammunition, a bag containing what is believed to be marihuana, a bag containing what is believed to be cocaine, a set of scales, and $2700 in United States currency." The default judgment of forfeiture showed that the foregoing notice was served on Ian Case Lawler on July 14, 1993. All items listed in the notice were ordered forfeited to the State based on the trial court's general finding that the property was used or intended to be used in the commission of a felony under the Texas Controlled Substances Act or Health and Safety Code. The only exhibit introduced by the State at the habeas hearing reflects the findings of a Department of Public Safety chemist's analysis of three "exhibits," all of which were found to contain cocaine in amounts weighing 2.94 grams, 4.80 grams and 4.84 grams. Appellant relies on United States v. Halper, 490 U.S. 435 (1989), for the proposition that the civil forfeiture in the instant cause amounted to punishment subject to constitutional scrutiny for double jeopardy purposes. In Ex parte Tomlinson, 886 S.W.2d 544 (Tex. App.--Austin 1994, no pet.), this Court noted that this was a "murky area of the law" that has created a division of authority among both federal and state courts. Id. at 546. However, it is unnecessary for us to reach the Halper issue in the instant cause. Appellant has the burden of proving former jeopardy. Andersen v. State, 635 S.W.2d 722, 725 (Tex. Crim. App. 1982). This includes "showing that the offense for which he is threatened with prosecution is the same offense as the one for which he has already been punished." Tomlinson, 866 S.W.2d at 547. Absent such showing, double jeopardy does not attach. See Cole v. State, 776 S.W.2d 269, 270-71 (Tex. App.--Houston [14th Dist.] 1989, no pet.). The indictment alleged possession of cocaine with intent to deliver, an offense under section 481.112 of the Health and Safety Code. Tex. Health & Safety Code Ann. § 481.112 (West Supp. 1995). The judgment in the forfeiture proceeding showed that all items in the notice of seizure, including "a bag containing what is believed to be marihuana," were forfeited to the State. Appellant has not negated the possibility that the property was seized for felony delivery or possession of marihuana. See Tex. Health & Safety Code Ann. §§ 481.120-.121 (West Supp. 1995). Moreover, the notice of seizure reflects "a bag containing what is believed to be cocaine" while the lab analysis shows three separate exhibits that contained cocaine. In addition to showing that the threatened prosecution is the same offense for which he already has been punished, appellant has the burden of identifying himself as the person previously subjected to punishment for the same offense. The fact that the names are the same is not sufficient to show that the person named in the forfeiture is the person threatened with prosecution under the indictment. See Elizalde v. State, 507 S.W.2d 749, 752 (Tex. Crim. App. 1974). Methods of proving that the accused is the same person previously punished include stipulation or judicial admission, testimony of a witness, and certified judgments and fingerprints. See Alridge v. State, 732 S.W.2d 395 (Tex. App.--Dallas 1987, pet. ref'd). Appellant presented no evidence connecting himself with the person named in the civil forfeiture default judgment. Without deciding whether the civil forfeiture in the instant cause is punishment for double jeopardy purposes, we hold that appellant has not discharged his burden of showing that the offense for which he is threatened with prosecution resulted in the civil forfeiture. Accordingly, we affirm the trial court's order denying habeas corpus relief. Tom G. Davis, Justice Before Justices Jones, Kidd and Davis* Affirmed Filed: May 17, 1995 Do Not Publish * Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).