Cantu, Irma and Javier Cantu v. Texas, the State Of

NUMBER 13-99-571-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ IRMA CANTU AND JAVIER CANTU , Appellants, v. THE STATE OF TEXAS , Appellee. ___________________________________________________________________ On appeal from the 197th District Court of Cameron County, Texas. ___________________________________________________________________ MEMORANDUM OPINION Before Justices Dorsey, Rodriguez, and Seerden(1) Opinion by Justice Rodriguez Appellants, Irma Cantu and Javier Cantu,(2) challenge the trial court's judgment ordering forfeiture of a 1992 Mitsubishi automobile. By two points of error, appellants complain of the sufficiency of the evidence to establish the vehicle was contraband. We affirm. As this is a memorandum opinion not designated for publication, and the parties are familiar with the facts, we will not recite them here. See Tex. R. App. P. 47.1 In a civil forfeiture proceeding, the State must prove by a preponderance of the evidence that the property seized is contraband and, therefore, subject to forfeiture. See Tex. Code Crim. Proc. Ann. arts. 59.02(a) & 59.05(b) (Vernon Supp. 2001). "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 of the Texas Health and Safety Code (the Texas Controlled Substances Act ("the Act")). See id. at art. 59.01(2)(B)(i). "Contraband" is also defined as the proceeds gained from the commission of such felony, or acquired with proceeds gained from the commission of a felony. See id. at art. 59.01(2) (C) & (D). In order to prove its case, the State must show some link or nexus between the property to be forfeited and the sale, manufacture, distribution, delivery or other commercial undertaking that violates the Act. See $56,700 v. State, 730 S.W.2d 659, 661 (Tex. 1987). If there is no direct evidence linking the property to a violation of the Act, the State must present sufficient circumstantial evidence to meet its burden. See $8,500 v. State, 774 S.W.2d 788, 792 (Tex. App.--Houston [14th Dist.] 1989, no writ); Henderson v. State, 669 S.W.2d 385, 387 (Tex. App.--San Antonio 1989, no writ). "Under this standard, the State is required to prove that, under all the circumstances raised by the evidence, it is more reasonably probable than not that the recovered [property] was 'derived from the sale [of controlled substances].'" Money of $8,500, 774 S.W.2d at 792 (quoting Valles v. State, 646 S.W.2d 636, 638 (Tex. App.--Houston [1st Dist.] 1983, no writ)). "Although the State is required to offer proof which does more than raise a mere surmise or suspicion regarding the source of the [property], it is required only to prove the fact through a balance of probabilities, and it is not required to exclude every other possible way in which the [property] might have been acquired." Id. (citing Valles at 638); Spurs v. State, 850 S.W.2d 611, 614 (Tex. App.--Tyler 1993, writ denied). In the absence of findings of fact and conclusions of law, as in this case, the appellate court presumes that the trial court made all necessary findings to support the judgment. See Robinson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989); $19,070 v. State, 869 S.W.2d 608, 611 (Tex. App.--Houston [14th Dist.] 1994, no writ). "When there are no findings of fact in an appeal from a trial to the court, the reviewing court must affirm the judgement if it can be upheld on any legal theory that finds support in the evidence." In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984); $19,079, 869 S.W.2d at 611-12. By points of error one and two, appellants contend the evidence is insufficient to establish that the property was contraband; that it was used or intended to be used in the commission of a felony under the Act, or that it constituted proceeds gained from the commission of a felony. The State contends that the automobile constituted such proceeds. In addressing legal sufficiency, we must consider all of the evidence in a light most favorable to the party in whose favor the verdict has been rendered, and indulge every reasonable inference deducible from the evidence in that party's favor. See Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998); Hines v. Comm'n for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex. App.--Corpus Christi 2000, no pet.). "Anything more than a scintilla of evidence is legally sufficient to support the finding." Formosa Plastics, 960 S.W.2d at 48 (citations omitted). When the evidence creates more than a mere surmise or suspicion of its existence, there is more than a scintilla of evidence. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). In determining a factual sufficiency point of error, we must examine and weigh all evidence and set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See $80,631 v. State, 861 S.W.2d 10, 12 (Tex. App.--Houston [14th Dist.] 1993, writ denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). The trier of fact, in this case the trial court, is the exclusive judge of the credibility of the witnesses and the weight to be given to the testimony. See Jerry v. Kentucky Cent. Ins. Co., 836 S.W.2d 812, 814 (Tex. App.--Houston [1st Dist.] 1992, writ denied); see also Ortiz v. Ford Motor Credit Co., 859 S.W.2d 73, 76 (Tex. App.--Corpus Christi 1993, writ denied). In this case, the circumstantial evidence offered by the State demonstrated a sufficient link or nexus between the vehicle and the proscribed activity. Agent Steve Hooten with the Drug Enforcement Agency ("the DEA") testified he initiated a two year investigation of Javier in 1994. As a result of that investigation Javier was indicted by the federal government for conspiracy to possess with intent to distribute marijuana and for money laundering.(3) Agent Hooten testified Javier was "directly responsible for the importation, transportation, and distribution of approximately 5 tons of marijuana from the area of Cameron County, Texas, up into Houston, Texas, and then to points there beyond." According to Agent Hooten, his investigation revealed that Javier had been involved in drug trafficking activities for a period of ten years. Drug transactions and the businesses and properties purchased during that time were Javier's primary, if not his only, sources of income. His assets included a hotel on South Padre Island worth approximately $500,000, a restaurant on South Padre Island, a residence in Cameron County worth approximately $150,000, four separate vehicles, each worth approximately $20,000 to $30,000, a boat worth approximately $20,000, and jewelry worth approximately $40,000. Javier was the title holder and owner of the vehicle at issue until August 1997. He was the primary user of the vehicle during the two years that the DEA investigated him. In 1997, Javier transferred the vehicle to Irma. It was later seized from Irma's residence with her consent. Neither appellant testified at trial or presented any evidence, documentary or otherwise, to explain what money was used to purchase the vehicle. However, appellants did provide answers to interrogatories related to Javier's income. Irma answered that Javier worked with Newille Company in 1983 and K-Mart in 1984, and Javier responded that the vehicle had been acquired in exchange for a 1982 Ford Bronco and a $13,000 cashier's check he got as a loan from his employer, Island Hotel, a property he owned, where he was making $2,000 to $2,500 monthly. Moreover, certain admissions by Irma regarding the subject property were deemed admitted by the trial court. Irma admitted the subject vehicle was contraband; that it constituted proceeds gained from the commission of a felony, was acquired with proceeds from the commission of a felony, and/or was used or intended to be used in the commission of a felony. Appellants made no objection to the State's request that the admissions be deemed or to the trial court's finding. Accordingly, after considering all of the record evidence in a light most favorable to the State, and indulging every reasonable inference deducible from the evidence in the State's favor, we conclude this is more than a mere scintilla of evidence that the vehicle was contraband; that it constituted proceeds gained from the commission of a controlled substance felony, or was acquired with proceeds gained from the commission of a felony. Additionally, after examining and weighing all evidence, we conclude it is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Therefore, we hold the evidence is legally and factually sufficient to support the forfeiture of the 1992 Mitsubishi automobile. Points of error one and two are overruled. Accordingly, the judgment of the trial court is affirmed. NELDA V. RODRIGUEZ Justice Do not publish . Tex. R. App. P. 47.3. Opinion delivered and filed this 22nd day of March, 2001. 1. Senior Justice Robert J. Seerden assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998). 2. Appellants are mother and son. 3. Javier was convicted of conspiracy to possess with intent to distribute in excess of 1,000 kilograms of marijuana.