1992 BMW VIN WBABF4313NEK00963 / Brandon Lee Thompson, Appellant v. The STATE of Texas, Appellee.

No. 04-07-00116-CVCourt of Appeals of Texas, Fourth District, San Antonio.
Delivered and Filed: September 12, 2007.

Appeal from the 216th Judicial District Court, Kerr County, Texas, Trial Court No. 06-65-A, Honorable Stephen B. Ables, Judge Presiding.

Sitting: ALMA L. LÓPEZ, Chief Justice, Sandee BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.

MEMORANDUM OPINION
Opinion by: ALMA L. LóPEZ, Chief Justice.

Brandon Lee Thompson appeals the judgment of the trial court ordering forfeiture of his car. In his sole issue, Thompson contends that forfeiture of his car as a result of his possession of two grams of cocaine violates the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. We affirm the trial court’s judgment.

Background
On January 20, 2006, police initiated a traffic stop of Thompson’s car. When officers made contact with Thompson, he admitted that he had cocaine in his car. Officers searched the car and discovered two bags of cocaine. Each of the bags contained approximately one gram of cocaine, and each bag was valued at $50. Officers arrested Thompson and seized his car, which was valued at approximately $3,000. Thompson pleaded guilty and was convicted of possession of a controlled substance in an amount between one and four grams, a third-degree felony. Thompson was sentenced to three years in prison. The State also sought forfeiture of Thompson’s car. After a hearing, the trial court ordered forfeiture of Thompson’s car pursuant to Chapter 59 of the Texas Code of Criminal Procedure. This appeal followed.

Analysis
Thompson contends that forfeiture of his car violates the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. The Eighth Amendment, which is applicable to the states under the Due Process Clause of the Fourteenth Amendment, states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” See U.S. Const. amend. VIII Robinson v. California, 370 U.S. 660, 675 (1962). A forfeiture is a “fine” under the Eighth Amendment if it constitutes punishment for an offense. See United States v. Bajakajian, 524 U.S. 321, 327-28 (1998).

Assuming, without deciding, that the forfeiture of Thompson’s car constitutes punishment for his offense and is thus a “fine” under the Eighth Amendment, we consider whether the forfeiture of the car violated the Eighth Amendment’s prohibition on excessive fines. Thompson argues that a test set forth by the United States Supreme Court and applied by a Texas appeals court demonstrates that the forfeiture of his car violated the Excessive Fines Clause. See Bajakajian, 524 U.S. at 337-39 One Car, 1996 Dodge X-Cab Truck White in Color 5YC-T17 VIN 3B7HC13Z5TG163723 v. State, 122 S.W.3d 422, 427-28 (Tex.App.-Beaumont 2003, no pet.). In Bajakajian, the defendant pleaded guilty to violating a federal statute that prohibited people from carrying more than $10,000 out of the country without reporting it. 524 U.S. at 325. The government sought forfeiture of the entire amount of cash, $357,144, carried by the defendant. Id. The U.S. Supreme Court held that forfeiture of the entire amount of cash violated the Excessive Fines Clause. Id. at 337. In doing so, the Court adopted a “gross disproportionality” standard, which held unconstitutional any forfeitures that were “grossly disproportional” to the gravity of the defendant’s offense. Id. In determining whether a forfeiture was “grossly disproportional,” the Court considered: (1) the nature of the offense; (2) the relationship of the offense to other illegal activities; (3) whether a defendant was one of the class of persons addressed by the forfeiture statute; (4) the maximum sentence and fine recommended or permitted for the offense; and (5) the harm caused by the offense. Id. at 337-39. We review a proportionality determination de novo. Id. at 336.

Thompson cites One Car in arguing that the forfeiture of his car was grossly disproportional to the gravity of his offense. In One Car, the appeals court held that forfeiture of the defendant’s $11,000 truck for possession of a trace amount of methamphetamine violated the Excessive Fines Clause. 122 S.W.3d at 428. However, One Car is distinguishable from this case for two reasons: (1) the offense in this case is more serious than that in One Car; and (2) the value of the forfeited car in this case is substantially lower than that in One Car. First, the defendant in One Car was arrested for possession of “an extremely small amount” of methamphetamine that could not be weighed or valued Id. at 423. The defendant pleaded guilty to possession of a controlled substance, a state-jail felony carrying a maximum prison sentence of two years and a maximum fine of $10,000. See Id.; Tex. Health Safety Code Ann. § 481.115(b) (Vernon 2003); Tex. Penal Code Ann. § 12.35 (Vernon 2003). In contrast, Thompson pleaded guilty to possession of two grams of cocaine, a third-degree felony carrying a prison sentence of between two and ten years and a maximum fine of $10,000. See Tex. Health Safety Code Ann. § 481.115(c) (Vernon 2003); Tex. Penal Code Ann. §12.34 (Vernon 2003). Second, the defendant’s truck in One Car was valued at $11,000, which is more than the amount authorized as a fine for her offense, whereas Thompson’s car is valued at $3,000, far less than the maximum fine authorized for his offense.

We now turn to the remaining Bajakajian factors as they apply to this case. With respect to the relationship of the offense to other illegal activities, there is nothing in the record to show that Thompson’s possession of cocaine was related to any other illegal activity. Regarding the class of persons addressed by Chapter 59, Thompson is within the class because he was convicted of possessing a controlled substance. See Tex. Health Safety Code Ann. § 481.115(c) (Vernon 2003); Tex. Code Crim. Proc. Ann. art. 59.01(2)(B)(i); 59.02(a) (Vernon 2006). Finally, regarding the harm caused by the offense, we have stated that “[i]t is common knowledge that possession, use, and distribution of illegal drugs represents one of the greatest problems affecting the health and welfare of our population. Studies clearly demonstrate the direct nexus between illegal drugs and crimes of violence.” Thomas v. State, 916 S.W.2d 578, 583 (Tex.App.-San Antonio 1996, no writ) see also Robinson v. State, 906 S.W.2d 534, 537 (Tex.App.-Tyler 1995, no writ) (“Frequently, drug activity is also the contributing factor of the `necessary’ commission of other crimes by the individual to support a habit. Our entire society is negatively affected by criminal drug activities.”); Jackson v. State, 807 S.W.2d 387, 390 (Tex.App.-Houston [14th Dist.] 1991, writ ref’d) (“The prohibition of possession of even unusable quantities of cocaine reflects the concern of the legislature with drug abuse in our society.”). Thus, Texas courts view the possession of cocaine as inherently harmful to society.

Considering all of the factors set forth in Bajakajian, we hold that the forfeiture of Thompson’s $3,000 car is not grossly disproportional to the third-degree felony offense of possession of two grams of cocaine and that the forfeiture therefore does not violate the Excessive Fines Clause of the Eighth Amendment. Bajakajian, 524 U.S. at 337-40.

Conclusion
We affirm the trial court’s judgment.