Opinion
No. 05-08-00353-CV
Opinion issued August 4, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 193rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 07-01474-L.
Before Justices WRIGHT, O'NEILL, and LANG.
MEMORANDUM OPINION
The State of Texas appeals the trial court's judgment denying forfeiture of one 2005 Hummer. In two issues, the State contends the trial court erred by determining the Hummer was not contraband subject to forfeiture because (1) Kelvin Johnson did not "use" the Hummer, and (2) all of the elements of the offense had been completed prior to his entry into the Hummer. We sustain the State's issues, reverse the trial court's judgment, and render a judgment of forfeiture.
Senior Corporal David Durica testified that Officers Zane Murray and John Page stopped Johnson for driving the Hummer without a front license plate. After learning Johnson had outstanding warrants, they arrested him. Page searched appellant and found a small baggie of powder cocaine. Johnson then pulled a large ziplock bag containing crack cocaine from his pants. Durica also testified that the Hummer was registered to Johnson. Johnson did not appear at the forfeiture proceedings, and has not raised any defenses against forfeiture either at trial or on appeal.
After hearing this and other evidence, the trial court denied the State's petition for forfeiture. The trial court then made findings of fact and conclusions of law, including, among others, that the State proved by a preponderance of evidence that Johnson possessed a controlled substance in a quantity sufficient to be classified as a felony but failed to prove Johnson had the intent to distribute. The trial court also found Johnson possessed the cocaine directly on his person as opposed to being found in the vehicle subject to the lawsuit. Additionally, the trial court determined Johnson's possession of the cocaine was completed before he entered the vehicle. Thus, the trial court concluded Johnson had not "used" the Hummer to possess the cocaine.
A forfeiture proceeding under the forfeiture of contraband statute is a civil proceeding. Tex. Code Crim. Proc. Ann. art. 59.05(b) (Vernon 2006). The State must prove by a preponderance of the evidence that the property seized is contraband and, therefore, the property is subject to forfeiture. State v. $11,014, 820 S.W.2d 783, 784 (Tex. 1991); 1985 Cadillac Limousine v. State, 835 S.W.2d 822, 825 (Tex.App.-Houston [1st Dist.] 1992, writ denied). "Contraband" means property of any nature, including real, personal, tangible, or intangible, that is (1) used in the commission of any first or second degree felony under the penal code, or (2) used or intended to be used in the commission of any felony under the Texas Controlled Substances Act. Tex. Code Crim. Proc. Ann. art. 59.01(2)(A)(i), (2)(B)(i) (Vernon Supp. 2008). In forfeiture proceedings, the State must show probable cause for seizing a person's property; probable cause is a reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute. State v. $11,014, 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. In its first issue, the State contends that Johnson "used" the Hummer in the possession of the cocaine because he was driving the Hummer with cocaine in his pocket. In its second issue, the State challenges the trial court's determination that Johnson did not use the Hummer to possess the cocaine because all of the elements of the offense had been completed prior to his entry into the Hummer. When, as here, the State challenges the trial court's conclusions of law, we review the trial court's conclusions de novo. Smith v. Smith, 22 S.W.3d 140, 143-44 (Tex.App.-Houston 2000, no pet.). When conducting a de novo review, the reviewing court exercises its own judgment and redetermines each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).
The record and unchallenged findings show Johnson possessed the cocaine and was driving the Hummer when he was stopped for failing to have a front license plate. Thus, Johnson was transporting the cocaine from one location to another when he was stopped and arrested. Because Johnson used the Hummer to transport the cocaine in his possession from one location to another, we conclude Johnson "used" the Hummer to possess the cocaine and the trial court erred in concluding otherwise. See 1991 Nissan Pickup v. State, 896 S.W.2d 344, 344-45 (Tex.App.-Eastland 1995, no writ) (Nissan subject to forfeiture because it was used to travel from Mexico with drugs); 1985 Cadillac, 835 S.W.2d at 824-27 (Cadillac limousine subject to forfeiture because occupants bought cocaine, transported it, and used it in the limousine); see also State v. 1992 Explorer, No. 05-97-01023-CV, 2000 WL 225628, *2 (Tex.App.-Dallas Feb. 29, 2000, pet. denied) (op. not designated for publication) (Explorer subject to forfeiture because it was used to transport cocaine from appellant's house to another location). Further, possession of cocaine is a continuing offense. See Kalish v. State, 662 S.W.2d 595, 600 (Tex.Crim.App. 1983). Thus, we conclude the trial court erred by determining Johnson did not use the Hummer to possess the cocaine because the offense was completed before his entry into the Hummer. We sustain the State's two issues. Accordingly, we reverse the trial court's judgment and render a judgment of forfeiture.