$13,720.00 v. STATE, 05-03-01670-CV (Tex.App.-Dallas 10-13-2004)

$13,720.00 IN U.S. CURRENCY, Appellant v. THE STATE OF TEXAS, Appellee.

No. 05-03-01670-CVCourt of Appeals of Texas, Fifth District, Dallas.
Opinion Filed October 13, 2004.

On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 8-01-5.



MOSELEY, Justice.

This is a forfeiture case. Weissinger Newberry, III, the real party in interest, appeals the trial court’s judgment forfeiting to the State $13,720 in U.S. currency that was seized from him after he was arrested for possession of cocaine. (Subsequently, Newberry was convicted for the offense of possession of cocaine in an amount of 400 grams or more, a felony.) Contending his arrest was illegal, Newberry asserts that the $13,720 found on his person after his arrest was not properly seized, and, therefore, should not have been forfeited to the State. Because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.1. We affirm the trial court’s judgment. A forfeiture proceeding is a civil proceeding, wherein the state has the burden of proving by a preponderance of the evidence that the property is subject to forfeiture. See
Tex. Code Crim. Proc. Ann. Art. 59.05 (Vernon Supp. 2004-05). Contraband, such as currency that is used or intended to be used in the commission of a felony, is subject to seizure and forfeiture under article 59.02 of the code of criminal procedure. Property subject to forfeiture may be seized without a warrant if the seizure was incident to a lawful arrest, lawful search, or lawful search incident to arrest. See Tex. Code Crim. Proc. Ann. Art. 59.03(b) (Vernon Supp. 2004-05).

The record contains evidence that Newberry was stopped by a police officer for a traffic violation on Interstate 30 in Rockwall County at 5:30 a.m. According to the officer’s testimony, he interviewed Newberry at the rear of Newberry’s vehicle. While the officer spoke to the passenger still inside Newberry’s car, Newberry moved to the rear of the patrol car. The officer observed Newberry make a “furtive movement with the left hand in a downward, kind of throwing motion,” but did not search the area until after Newberry had driven off.

After Newberry left, the officer inspected the area where Newberry had been standing at the end of the patrol unit. There the officer found a plastic bag containing approximately one pound of cocaine. After making this discovery, the officer and a backup unit pursued Newberry and stopped him about three miles from the initial stop. There the officer arrested Newberry discovered $3,700 on his person as a part of the roadside “pat down” search. An additional $10,000 was found in Newberry’s boots at the subsequent search at the jail.

“[P]robable cause to arrest exists where the facts and circumstances within the knowledge of the arresting officer and of which he has reasonable trustworthy information would warrant a reasonable and prudent man in believing that a particular person has committed or is committing a crime.” Jones v. State, 565 S.W.2d 934, 936 (Tex.Crim.App. 1978). In this case, the officer discovered a bag of cocaine in the same vicinity as where the officer observed Newberry standing and making a downward motion with his arm. The facts and circumstances within the knowledge of the officer are sufficient to warrant a reasonable and prudent man to believe that Newberry had committed the crime of possession of cocaine.

Probable cause for the second stop existed and the arrest was valid. The seizure of the currency made incident to the lawful arrest was also valid. See Twenty-Four Thousand One Hundred and Eighty Dollars in U.S. Currency v. State, 865 S.W.2d 181,188 (Tex.App.-Corpus Christi 1993, writ denied). We overrule appellant’s issue that the seizure was illegal.

Additionally, Newberry complains that his Sixth Amendment right to a “fair and impartial proceeding” was violated because his request for a bench warrant to attend the forfeiture hearing was not granted. The Sixth Amendment pertains to a defendant’s rights in “all criminal prosecutions,” and does not pertain to a civil proceeding in forfeiture. Accordingly, we find no merit to Newberry’s complaint that he was not allowed to attend the forfeiture hearing.

We affirm the trial court’s judgment.