$238,980.00 U.S. Currency and 2008 Chevrolet Malibu VIN 1G1ZJ57728F201386 (Armin Martinez) v. State

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00509-CV
____________________

$238,980.00 U.S. CURRENCY AND 2008 CHEVROLET MALIBU VIN
#1G1ZJ57728F201386 (ARMIN MARTINEZ), Appellant

V.

THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________

On Appeal from the 75th District Court
Liberty County, Texas
Trial Cause No. CV1408178
________________________________________________________ _____________

MEMORANDUM OPINION

In a single issue, Armin Martinez contends the trial court erred by granting

the State’s partial motion for summary judgment and ordering the forfeiture of

seized property, $238,980.00 in U.S. Currency and a 2008 Chevrolet Malibu VIN

#1G1ZJ57728F201386. Martinez argues: (1) there was no reasonable suspicion or

probable cause for the stop that resulted in the seizure of the currency and the

vehicle; (2) there was no reasonable suspicion to justify the prolonged detention;

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(3) Martinez did not voluntarily or knowingly consent to a search of the vehicle;

(4) the State failed to show that there was a reasonable belief at the time of seizure

that a substantial connection existed between the property seized and an

enumerated offense under Chapter 59 of the Texas Code of Criminal Procedure;

(5) the section of the Transportation Code that allegedly formed the basis for the

stop is unconstitutionally vague on its face and as applied to Martinez; and (6)

genuine issues of material fact preclude summary judgment. We find Martinez’s

issue and its component arguments are without merit, and we affirm the trial

court’s summary judgment.

Summary Judgment Standard of Review

A party moving for traditional summary judgment has the burden to prove

that there is no genuine issue of material fact and it is entitled to judgment as a

matter of law. See Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors,

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A party moving for summary

judgment must also conclusively prove all elements of its cause of action as a

matter of law. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566

(Tex. 2001); see Tex. R. Civ. P. 166a(c). When reviewing a motion for summary

judgment, the court takes the non-movant’s evidence as true, indulges every

reasonable inference in favor of the non-movant, and resolves all doubts in favor of

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the non-movant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49

(Tex. 1985).

The non-movant has no burden to respond to or present evidence regarding

the motion until the movant has carried its burden to conclusively establish the

cause of action on which its motion is based. M.D. Anderson Hosp. & Tumor Inst.

v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). Once the party moving for summary

judgment has established its right to summary judgment as a matter of law,

however, the party opposing the motion must present evidence that raises a

genuine issue of material fact to avoid the motion being granted. See City of

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).

We review a grant of summary judgment de novo. Exxon Corp. v. Emerald

Oil & Gas Co., 331 S.W.3d 419, 422 (Tex. 2010). “Issues not expressly presented

to the trial court by written motion, answer or other response shall not be

considered on appeal as grounds for reversal.” Tex. R. Civ. P. 166a(c).

Civil Forfeiture Issues

Contraband is subject to seizure and forfeiture by the State. See Tex. Code

Crim. Proc. Ann. arts. 59.02(a), 59.03 (West Supp. 2015). The civil forfeiture

statute defines “contraband” as property of any nature used or intended to be used

in the commission of various enumerated crimes, including any felony under

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Chapter 34 of the Penal Code (Money Laundering). Id. art. 59.01(2)(B)(iv). The

civil rules of pleading apply in forfeiture proceedings. Tex. Code Crim. Proc. Ann.

art. 59.05(a) (West 2006). Forfeiture proceedings are tried in the same manner as

other civil cases, and the State has the burden to prove by a preponderance of the

evidence that the property in question is subject to forfeiture. Id. art. 59.05(b).

The issue in an in rem civil forfeiture proceeding is whether there 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. One (1) 2004

Lincoln Navigator, VIN # 5LMFU27RX4LJ28242, No. 14-0692, 2016 WL

3212490, at *6 & n.9, 8 (Tex. June 10, 2016). The State has the burden to show

probable cause existed for seizure of the property. Fifty-Six Thousand Seven

Hundred Dollars in U.S. Currency v. State, 730 S.W.2d 659, 661 (Tex. 1987). In

the civil-forfeiture context, 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. Ninety Thousand Two Hundred Thirty–Five Dollars

and No Cents in U.S. Currency ($90,235), 390 S.W.3d 289, 293 (Tex. 2013)

(quoting United States v. $364,960.00 in U.S. Currency, 661 F.2d 319, 323 (5th

Cir. 1981)) (internal quotations omitted).

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 Chapter 59 of the Texas Code of Criminal Procedure does not require that

the State show lawful seizure as a procedural prerequisite to commencing a

Chapter 59 proceeding for civil forfeiture of the property seized. 2004 Lincoln

Navigator, 2016 WL 3212490, at *8-9; see Tex. Code Crim. Proc. Ann. arts.

59.01-.04 (West Supp. 2015), art. 59.05 (West 2006), art. 59.06 (West Supp.

2015), arts. 59.07-.10 (West 2006), art. 59.11 (West Supp. 2015), arts. 59.12-.14

(West 2006). In addition to complying with the procedural requirements regarding

notification of a forfeiture proceeding, the State’s only burden is proving by a

preponderance of the evidence that the property is subject to forfeiture. 2004

Lincoln Navigator, 2016 WL 3212490, at *8; see Tex. Code Crim. Proc. Ann. arts.

59.04, 59.05(b).

Our written opinion must address every issue raised and necessary to the

disposition of the appeal. See Tex. R. App. P. 47.1. But, we may reverse a

judgment only for an error that probably caused the rendition of an improper

judgment or that probably prevented appellate review of an issue. See Tex. R. App.

P. 44.1(a). Because the legality of the seizure is not an issue in a civil forfeiture

proceeding, Martinez would not be entitled to have the forfeiture judgment

reversed because (1) the officer lacked reasonable suspicion or probable cause to

stop the vehicle, (2) the officer unreasonably prolonged the detention, (3) the

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officer lacked effective consent to search the vehicle, or (4) the statute that formed

the basis for the initial detention is unconstitutionally vague. See generally 2004

Lincoln Navigator, 2016 WL 3212490, at *8-9. Accordingly, we decline to address

those arguments in this opinion.1 See Tex. R. App. P. 47.1.

Next, Martinez argues the State failed to show that there was a reasonable

belief at the time of seizure that a substantial connection existed between the

property seized and an enumerated offense under Chapter 59 of the Texas Code of

Criminal Procedure. Also, he argues there is a genuine issue of material fact as to

whether there was a substantial connection between the seized property and drug

trafficking or money laundering at the time of the seizure. He argues that his

statements to the officer are irrelevant because the vehicle and the currency had

already been seized when the officer interrogated him. Martinez suggests we may

consider only the evidence known to the police when the vehicle was initially

detained, but the cases he cites do not concern what evidence is relevant to a

determination of whether property is contraband. In Fifty-Six Thousand and Seven

Hundred Dollars in U.S. Currency v. State, the Court held that mere proximity to

small amounts of cocaine and drug paraphernalia was insufficient to establish that
1
This Court addressed the merits of similar arguments and affirmed the trial
court’s judgment in Martinez’s appeal from his conviction for money laundering.
See Martinez v. State, No. 09-14-00377-CR, 2016 WL 4040118, at *6-11 (Tex.
App.—Beaumont, July 27, 2016, no pet. h.).
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the currency had been derived from illegal drug sales. See 730 S.W.2d at 661-62.

Another case, State v. Thirty Thousand Six Hundred Sixty Dollars and no/100

($30,660.00) in U.S. Currency, considered the applicability of a motion to return

illegally seized property in a civil forfeiture proceeding. 136 S.W.3d 392, 407-08

(Tex. App.—Corpus Christi 2004, pet. denied). Martinez has not cited a case that

holds that evidence acquired in the course of the criminal investigation cannot be

considered in determining whether property is contraband, and we decline to do so

here.

The summary judgment record includes an affidavit by the deputy sheriff,

who stated that he has twelve years of law enforcement experience and he is

trained in narcotic interdiction, narcotic investigations, and money laundering. 2 In

his affidavit, the officer states that he stopped Martinez in the 2008 Malibu as he

travelled south on Highway 59. Martinez told the officer that he was driving from

Chicago to Humble to visit his children, that he last made the trip approximately

one month before, and he typically made the trip once a month. While the officer

was checking the vehicle’s plates, however, he confirmed that the vehicle had been

2
Martinez objected to the officer’s affidavit in his summary judgment
response, but the record does not reflect that the trial court ruled on his objections,
and he advances no argument in his appeal that the trial court erred by impliedly
overruling his objections. See Tex. R. Civ. P. 166a(f); Dolcefino v. Randolph, 19
S.W.3d 906, 926-27 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
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stopped by a Liberty County Interdiction Unit the previous week. Also, Martinez

was not truthful about his arrest history, stating that he had last been arrested on a

traffic stop years ago, but the officer determined that Martinez had an active Drug

Enforcement Agency case for drug trafficking and money laundering. The officer

detected molding compound dust and fresh paint overspray on the front driver’s

side wheel well and door jamb. The currency was concealed within the front wheel

well bumper area in approximately sixteen black electrical taped bundles

containing a total of 899 one-hundred-dollar bills, 368 fifty-dollar bills, 6,371

twenty-dollar bills, 220 ten-dollar bills, 211 five-dollar bills, and 5 one-dollar bills.

During a custodial interrogation conducted later that day, Martinez told the

officer that he had been approached about making a “money run” to Texas for

which he would be paid two thousand dollars payable upon his return to Chicago.

Martinez picked up the Malibu, with the keys inside, at a car wash near his

residence in Chicago. He knew currency would be in the car and was told to be

careful with the front of the vehicle. He was directed to park the Malibu in a

parking lot of a store in Humble, place the keys under the floor mat, and take a cab

to the airport to fly back to Chicago. Martinez told the officer he believed that he

might be delivering the proceeds of drug sales for a cartel.

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 In his response to the motion for summary judgment and in his appellate

brief, Martinez argues the summary judgment evidence fails to establish that the

Malibu and the money are contraband because money in and of itself is not illegal

and the officer found no drug paraphernalia in the vehicle to suggest that Martinez

was drug trafficking. The officer’s affidavit establishes that at the time the officer

arrested Martinez and took control of the vehicle and the currency, the officer

knew that Martinez made frequent trips from Chicago to Houston and on this

particular occasion a large amount of currency had been recently concealed in a

place on the vehicle that is not intended for storage. The clandestine nature of the

transportation of a large sum of money was evident from the manner in which it

was concealed in the vehicle. Martinez did not provide an innocent explanation for

transporting several hundred thousand dollars in cash in the vehicle’s wheel well,

and the officer confirmed the circumstantial evidence of money laundering through

custodial interrogation. In addition to the appearance of money laundering that is

presented by black-taped bundles of cash concealed in a wheel well, there is

evidence that Martinez admitted that he was engaged in money laundering when he

drove the Malibu to Texas. Because the vehicle and the currency are directly

employed in the act of money laundering, the evidence conclusively establishes the

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nexus between the property to be forfeited and the statutorily defined criminal

activity.

A fact issue exists if circumstantial evidence will support more than one

reasonable inference. One Thousand Six Hundred Four Dollars & Nine Cents

($1,604.09) in U.S. Currency v. State, 484 S.W.3d 475, 481 (Tex. App.—Houston

[14th Dist.] 2015, no pet.). Martinez does not suggest any other reasonable

inference that is supported by the circumstantial evidence present in this case. The

summary judgment evidence shows that Martinez drove the 2008 Chevrolet

Malibu from Illinois to Texas to deliver $238,980.00 in U.S. Currency—the

proceeds of drug sales—for a cartel. The summary judgment evidence conclusively

establishes that a substantial connection exists between the property at issue in this

case and criminal activity. See 2004 Lincoln Navigator, 2016 WL 3212490, at *6

& n.9, 8. The property is contraband subject to seizure and civil forfeiture. See

Tex. Code Crim. Proc. Ann. art. 59.02(a). We overrule issue one and affirm the

trial court’s judgment.

AFFIRMED.

________________________________
CHARLES KREGER
Justice

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Submitted on September 29, 2015
Opinion Delivered August 11, 2016

Before McKeithen, C.J., Kreger and Johnson, JJ.

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