$808.00 U.S. CURRENCY, Appellant v. STATE OF TEXAS, Appellee.

No. 11-04-00184-CVCourt of Appeals of Texas, Eleventh District, Eastland.
April 28, 2005.

Case Number: 11-04-00184-CV 09/20/2005 Case stored in record room 09/20/2005 Notice sent to Court of Appeals 08/05/2005 Petition for Review disposed proceeding denied 07/05/2005 Case forwarded to Court 06/20/2005 Document received (See Remarks) 05/31/2005 Petition for Review filed 05/31/2005 Appendix Filed 05/31/2005 Document received (See Remarks) 05/18/2005 Description of document returned to Supreme Court 05/12/2005 M/E/T to file petition for review disposed Granted 05/09/2005 Affidavit of inability to pay Court costs 05/09/2005 M/E/T to file petition for review filed

Appeal from Coleman County.

Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.

Memorandum Opinion
JIM R. WRIGHT, Justice.

This is an appeal from a civil forfeiture proceeding under TEX. CODE CRIM. PRO. ANN. ch. 59 (Vernon Pamph. Supp. 2004-2005). The trial court ordered that $808.00 in U.S. currency belonging to Benito Vasquez Diaz be forfeited to the State. We affirm.

Diaz was under investigation by the West Central Texas Interlocal Crime Task Force for dealing drugs in Coleman County. On December 3, 2003, Marty Baker, a Taylor County peace officer assigned to the task force, observed an apparent drug deal between Diaz and Tamela Rosales taking place in Diaz’s vehicle. Upon approaching them, Officer Baker discovered 4.4 grams of methamphetamine and $808.00 in U.S. currency inside Diaz’s vehicle and on Diaz’s person. Officer Baker seized the currency and arrested Diaz. On December 12, 2003, the State filed an Original Notice of Seizure and Intended Forfeiture with the district court of Coleman County. On December 29, 2003, Diaz was served with a citation and a copy of this notice. On April 27, 2004, the trial court ordered that the property be forfeited. Diaz appeals from the judgment of forfeiture.

Forfeiture proceedings of seized property are civil in nature. Article 59.05(b). Where, as in this case, findings of fact and conclusions of law are neither filed nor requested, the appellate court must presume that the trial court made all the necessary findings to support the judgment. $162,950 in Currency of the United States v. State, 911 S.W.2d 528, 529 (Tex.App.-Eastland 1995, writ den’d). We must affirm the judgment if it can be upheld on any legal theory that finds support in the evidence $162,950 in Currency of the United States v. State, supra.

In a forfeiture proceeding, the State must prove by a preponderance of the evidence that the property seized is contraband and, therefore, that the property is subject to forfeiture. Articles 59.02(a) 59.05(b); $162,950 in Currency of the United States v. State, supra. The State does not have to prove that a specific crime was committed. $162,950 in Currency of the United States v. State, supra.

Contraband is defined as “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, Health and Safety Code (Texas Controlled Substances Act).” Article 59.01(2)(B)(i). Possession and delivery of methamphetamine is a felony under the Texas Controlled Substances Act. See TEX. HEALTH SAFETY CODE ANN. §§ 481.102 481.112(a) (d) (Vernon Supp. 2004-2005). We find that the preponderance of evidence supports the State’s position that the seized currency was contraband. Attached to its Original Notice of Seizure and Intended Forfeiture, the State submitted the affidavit of Officer Baker, the arresting officer who seized the currency. Officer Baker stated in his affidavit that there was an ongoing investigation into the drug dealings of Diaz. He further stated that, when he arrested Diaz, he observed what appeared to be a drug deal between Diaz and Rosales taking place in Diaz’s car. Officer Baker also stated that he found meth-amphetamine in Diaz’s car, along with $808.00 in U.S. currency. Officer Baker concluded in his affidavit that he believed the money was proceeds gained in the commission of a felony. Diaz never disputed or contested any of the statements in Officer Baker’s affidavit.

Diaz argues that, because the case against him was dismissed, there is a presumption that the property seized is nonforfeitable under Article 59.05(d). We disagree. Only an acquittal entitles appellant to such a presumption. See Article 59.05(d) ; State v. $31,400, 828 S.W.2d 112, 114 (Tex.App.-Houston [1st Dist.]), writ den’d, 842 S.W.2d 645 (Tex. 1992). Although there was a dismissal in Diaz’s case, there was no acquittal. Furthermore, we note that a final conviction for an underlying offense is not a requirement for forfeiture under Chapter 59. Article 59.05(d).

Diaz also argues that the State failed to notify him of the forfeiture. We disagree. The State’s Original Notice of Seizure and Intended Forfeiture was filed with the district clerk on December 12, 2003. On December 29, 2003, Diaz was served with a citation and copy of this notice; and the citation specified that, if Diaz or his attorney did not file a written answer by 10:00 a.m. on the Monday next following the expiration of 20 days after he was served, a default judgment may be taken against him. There is no evidence in the record that Diaz did not receive the citation or the notice.

We hold that the seizure and forfeiture of the property in this case was lawful. The judgment of the trial court is affirmed.