2009 GMC Pickup, VIN No.1GTJK83679F188085 v. State

Opinion filed June 18, 2015

In The

Eleventh Court of Appeals
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No. 11-13-00253-CV
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$18,325.00 IN U.S. CURRENCY, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CV1202050

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No. 11-13-00254-CV
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2009 GMC PICKUP, VIN NO. 1GTJK83679F188085, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CV1202051
 MEMORANDUM OPINION
These appeals arise from two civil forfeiture proceedings brought by the State
against items of personal property belonging to Marc Shawn Walden. The trial court
found that the items were contraband under Chapter 59 of the Texas Code of
Criminal Procedure and ordered that they be forfeited. See TEX. CODE CRIM. PROC.
ANN. ch. 59 (West 2006 & Supp. 2014). We affirm.
Appearing pro se, Walden asserts the same three issues in both appeals. In
his first issue, he challenges the trial court’s denial of his motion to suppress
evidence. Walden’s defense attorney filed the motion to suppress in his two criminal
cases that arose from the same events leading to the civil forfeiture proceedings. In
his second issue, Walden alleges ineffective assistance of counsel in the civil
forfeiture proceedings. In his third issue, Walden alleges various improprieties on
the part of the State and the trial court.
Walden’s first issue assumes that the exclusionary rule applies to civil
forfeiture proceedings. The Texas Supreme Court has yet to decide this question.
State v. Ninety Thousand Two Hundred Thirty-Five Dollars and No Cents in United
States Currency ($90,235.00), No. 08-09-00151-CV, 2014 WL 5798177, at *5 (Tex.
App.—El Paso Oct. 22, 2014, no pet.); see State v. $217,590.00 in United States
Currency, 18 S.W.3d 631, 632 (Tex. 2000) (where the court noted that it had not
decided the issue and assumed without deciding that the rule applied because the
parties had presumed the rule applied to the case). Solely for the purpose of our
analysis in this case, we will assume, but do not decide, that the exclusionary rule
applies to a forfeiture proceeding. See Ninety Thousand Two Hundred Thirty-Five
Dollars, 2014 WL 5798177, at *5.
The civil forfeiture proceedings arise out of an episode resulting in Walden
being charged and convicted of the offenses of unlawful possession of a firearm and
possession of a controlled substance with intent to deliver. The hearing in the
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forfeiture proceedings occurred immediately after the criminal proceedings
concluded. The hearing in the forfeiture proceedings began with the trial court
taking judicial notice of the evidence offered in the criminal proceedings. The
remainder of the hearing in the forfeiture proceedings consisted of the trial court
considering a brief presentation of additional testimony and receiving arguments of
counsel.
Appearing through counsel, Walden has appealed his convictions for unlawful
possession of a firearm and possession of a controlled substance with intent to
deliver. These appeals bear our Cause Nos. 11-13-00284-CR and 11-13-00285-CR.
In the appeal of each criminal conviction, Walden asserts a single issue alleging that
the trial court erred when it denied his motion to suppress evidence. We are issuing
an opinion today overruling Walden’s challenge to the denial of his motion to
suppress. Our disposition of this challenge in the criminal appeals is dispositive of
his first issue in the appeals from the civil forfeiture proceedings. We incorporate
our analysis and cited authority in the opinion in Cause Nos. 11-13-00284-CR and
11-13-00285-CR by reference. Walden’s first issue is overruled.
In his second issue, Walden argues that he received ineffective assistance of
counsel in the civil forfeiture proceedings. A claim of ineffective assistance of
counsel is not a basis for seeking affirmative relief from a civil forfeiture order. See
Approximately $42,850.00 v. State, 44 S.W.3d 700, 702 (Tex. App.—Houston [14th
Dist.] 2001, no pet.) (Complaints regarding the ineffectiveness of counsel clearly
have no relevance or application to a civil forfeiture proceeding.). Accordingly,
Walden’s second issue is overruled.
In his third issue, Walden alleges various improprieties on the part of the State
and the trial court. It appears that he is asserting that the State and trial court failed
to police the actions of his attorney to ensure that Walden received effective
assistance of counsel. We have previously noted that a claim of ineffective
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assistance of counsel has no application to a civil forfeiture proceeding as a remedy
for seeking relief from a forfeiture order. Walden has not cited any authority, and
we have found none, that supports a right to relief from a civil forfeiture order based
upon the conduct of the State or the trial court. Walden’s third issue is overruled.
We affirm the judgments of the trial court.

JOHN M. BAILEY
JUSTICE

June 18, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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