ACCEPTED
03-14-00704-CV
5258405
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/12/2015 9:29:22 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00704-CV
FILED IN
IN THE 3rd COURT OF APPEALS
AUSTIN, TEXAS
COURT OF APPEALS 5/12/2015 9:29:22 PM
OF THE THIRD SUPREME JUDICIAL CIRCUIT
JEFFREY D. KYLE
Clerk
2004 Dodge Ram 1500 TX LP#CPL1988
and 2000 Buick TX LP CV1N8187
v.
The State of Texas
APPELLANT’S REPLY BRIEF
Appeal from the 20th Judicial District Court
Milam County, Texas
Trial Court Cause No. CV36,279
LAW OFFICE OF BENTON ROSS WATSON
120 E. 1st Street
P.O. Box 1000
Cameron, Texas 76520
(254) 307-8181
(254) 231-0212—Facsimile
ross@texastopdefense.com
State Bar No. 24077591
ORAL ARGUMENT REQUESTED
NAMES OF THE PARTIES TO THE FINAL JUDGMENT
STATE OF TEXAS
The Honorable W.W. “Bill” Torrey
Milam County District Attorney
204 N. Central.
Cameron, Texas 76520
APPELLANT’S COUNSEL
Benton Ross Watson
120 E. 1st Street
P.O. Box 1000
Cameron, Texas 76520
TRIAL COURT JUDGE
The Honorable John Youngblood
20th District Court Judge
102 S. Fannin Ave., 2nd Floor
Cameron, Texas 76520
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
I
TABLE OF CONTENTS
NAMES OF THE PARTIES TO THE FINAL JUDGMENT .... I
TABLE OF CONTENTS ...........................................................II
INDEX OF AUTHORITIES .................................................... IV
REQUEST FOR ORAL ARGUMENT ................................... IX
STATEMENT OF THE CASE ................................................ IX
ISSUES PRESENTED .............................................................. X
STATEMENT OF FACTS ........................................................ 1
SUMMARY OF REPLY POINTS ............................................ 6
I. REPLY POINTS ..................................................................... 7
A. THE STATE CONTINUES TO IGNORE RULES
REGARDING SERVICE. .................................................... 7
1. FILING AN ANSWER DOES NOT WAIVE SERVICE OF PROCESS FOR
PURPOSES OF THE STATUTE OF LIMITATIONS DEFENSE. ............ 8
2. THE STATE WAS NOT DILIGENT BECAUSE IT WAS
UNQUESTIONABLY AWARE THAT MRS. ALCORN REQUIRED
SERVICE BY CITATION, ITS ACTIONS SPEAK LOUDER THAN
WORDS, AND, EVEN THEN, ITS WORDS ARE TOO LATE. ............ 10
a. The State knew Mrs. Alcorn was entitled to service by
citation.................................................................................. 11
b. The State failed to show diligence because it offered no
explanation. .......................................................................... 13
B. THE STATE’S EVIDENCE IS NOT COMPETENT FOR
SUMMARY JUDGMENT. ................................................ 17
1. THE STATE DID NOT CONCLUSIVELY PROVE PROBABLE CAUSE
BECAUSE ONLY UNIDENTIFIED DECLARANTS, LACKING
QUALIFICATIONS AND SUPPORT BY INDEPENDENT
CORROBORATION, KNEW THE DETERMINATIVE FACTS. ........... 18
2. EXISTENCE OF PROBABLE CAUSE TO BELIEVE PROPERTY IS
CONTRABAND DOES NOT EQUALLY PROVE THAT THE PROPERTY
IS, IN FACT, CONTRABAND. .................................................... 20
C. AMRANI-KHALDI IS NOT ‘WELL-SETTLED’, IS
CONTRARY TO LAW, AND OVERRULING IT
WOULD ONLY LEVEL THE PLAYING FIELD. ........... 22
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
II
1. TEXAS LAW DOES NOT SUPPORT AMRANI-KHALDI’S RULE
BECAUSE NO PERSON INCURRED LIABILITY, THERE IS NO
LIABILITY, AND MRS. ALCORN'S COMMUNITY PROPERTY
CANNOT BE FORFEITED MERELY DUE TO THE ACT OF A
SPOUSE….. ............................................................................ 24
2. SPOUSES SHOULD BE ABLE TO USE AVAILABLE STATUTORY
PROTECTIONS BECAUSE DOING SO IS CONSISTENT WITH LAW,
PREVENTS INEQUITABLE RESULTS, AND ONLY LEVELS THE
PLAYING FIELD. ..................................................................... 27
a. Spouses cannot be barred from using available statutory
remedies. .............................................................................. 27
b. Spouses should be able to use innocent owner defenses in
order to prevent inequitable results; and using such
defenses would, at most, only give spouses the same
advantages as other claimants. ............................................ 28
D. THE STATE STARTS AND ENDS WITH FACTS
ENTIRELY ABSENT FROM THE RECORD, AND
COMPLETELY IGNORES PROBLEMS WITH ITS
MOTION AND THE TRIAL COURT’S JUDGMENT..... 30
1. NO EVIDENCE OF DRUG CONVICTION, PROBATION, OR AMOUNT
OF DRUGS EXISTS TO ANALYZE PROBABLE CAUSE, CONTRABAND,
OR EIGHTH AMENDMENT LAW. .............................................. 30
2. MRS. ALCORN DID NOT PLEAD AFFIRMATIVE DEFENSES IN BAD
FAITH..................................................................................... 31
3. THE STATE AVOIDS WHY WE ARE HERE. ................................ 31
III. PRAYER ............................................................................ 32
CERTIFICATE OF SERVICE ................................................ 32
CERTIFICATE OF COMPLIANCE........................................33
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
III
INDEX OF AUTHORITIES
UNITED STATES SUPREME COURT CASES
Austin v. United States,
509 U.S. 602 (1993) .......................................................... passim
Bennis v. Michigan,
516 U.S. 442 (1996) ................................................................. 27
United States v. Ward,
448 U.S. 242 (1980) ................................................................. 25
TEXAS SUPREME COURT CASES
Baker v. Monsanto Co.,
111 S.W.3d 158 (Tex. 2003) ...................................................... 9
Caldwell v. Barnes,
154 S.W.3d 93 (Tex. 2004) ...................................................... 10
Fairfield Ins. Co. v. Stephens Martin Paving, LP,
246 S.W.3d 653 (Tex. 2008) .................................................... 23
Kerlin v. Arias,
274 S.W.3d 666 (Tex. 2008) .................................................... 17
Kulubis v. Tex. Farm Bureau,
706 S.W.2d 953 (Tex. 1986) .............................................. 22, 23
Proulx v. Wells,
235 S.W.3d 213 (Tex. 2007) .................................................... 14
Ross v. Nat'l Ctr. for the Empl. of the Disabled,
197 S.W.3d 795 (Tex. 2006) .................................................... 10
State v. $90,235.00, 390,
S.W.3d 289 (Tex. 2013) ..................................................... 17, 20
Tedder v. Gardner Aldrich, LLP,
421 S.W.3d 651 (Tex. 2013) .............................................. 24, 25
Texas Farmers Ins. Co. v. Murphy,
996 S.W.2d 873 (Tex. 1999) .................................................... 23
TEXAS COURT OF CRIMINAL APPEALS CASES
Davis v. State,
202 S.W.3d 149 (Tex. Crim. App. 2006) ................................. 20
Flores v. State,
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
IV
319 S.W.3d 697 (Tex. Crim. App. 2010) ................................. 20
TEXAS APPELLATE COURT CASES
$24,156.00 v. State,
247 S.W.3d 739 (Tex. App.—Texarkana 2008, no pet.) ........... 9
$27,920.00 v. State,
37 S.W.3d 533 (Tex. App.—Texarkana 2001) .......................... 8
$6453.00 v. State,
63 S.W.3d 533 (Tex. App.—Waco 2001, no pet.) ..................... 9
Amrani-Khaldi v. State,
575 S.W.2d 667 (Tex. Civ. App.—Corpus Christi 1978, no
writ) .................................................................................... III, 22
Belleza-Gonzalez v. Villa,
57 S.W.3d 8 (Tex. App.—Houston 2001, no pet.) .................. 15
Bochas v. State,
951 S.W.2d 64 (Tex. App.—Corpus Christi 1997, no writ) .... 22
Davis v. State,
989 S.W.2d 859 (Tex. App.—Austin [3rd Dist.] 1999, pet.
ref'd). ........................................................................................ 20
Elardo v. State,
163 S.W.3d 760 (Tex. App.—Texarkana 2005, pet. ref'd) ...... 19
Garcia v. John Hancock Variable Life Inse. Co.,
859 S.W.2d 427, 435 (Tex. App.—San Antonio 1993, writ
denied) ................................................................................ 17, 21
Gaston v. State,
641 S.W.2d 261 (Tex. App.—Houston 1982, no pet.) ............ 22
Gray v. State,
1999 Tex. App. LEXIS 8213 (Tex. App.—Austin [3rd Dist.]
Nov. 4, 1999, no pet.) (mem. op., not designated for
publication) .............................................................................. 22
Griffin v. Hale,
2010 Tex. App. LEXIS 6094 (Tex. App.—Eastland July 29,
2010, no pet.) (mem. op.) ........................................................... 9
Hopkins v. State,
2003 Tex. App. LEXIS 1448 (Tex. App.—Fort Worth Feb. 13,
2003, not pet.) (mem. op.) ........................................................ 29
Hull v. Vidaurri,
2010 Tex. App. LEXIS 424 (Tex. App.—Austin [3rd Dist.] Jan.
22, 2010, pet. denied) (mem. op.) ............................................ 13
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
V
Knox v. Donovan Lowery Ins. Agency,
405 S.W.2d 160 (Tex. Civ. App.—Eastland 1966, no writ) .... 14
Laidley v. City of San Marcos,
2011 Tex. App. LEXIS 7712 (Tex. App.—Austin [3rd Dist.]
Sept. 21, 2011, no pet.) (mem. op.) .......................................... 14
Lot 39 v. State,
85 S.W.3d 429 (Tex. App.—Eastland 2002, pet. denied)........ 25
Mauricio v. Castro,
287 S.W.3d 476 (Tex. App. —Dallas 2009, no pet.) ............... 14
Mitchell v. Timmerman,
2008 Tex. App. LEXIS 9710 (Tex. App.—Austin [3rd Dist.]
Dec. 31, 2008, no pet.) (mem. op.) .......................................... 13
One 1991 Chevrolet Blazer v. State,
905 S.W.2d 443 (Tex. App.—Amarillo 1995, no pet.)............ 13
Parish v. State,
939 S.W.2d 201 (Tex. App.—Austin [3rd Dist.] 1997, no
pet.)….. .................................................................................... 20
Parmer v. DeJulian,
2008 Tex. App. LEXIS 6875 (Tex. App.—Tyler Sept. 17, 2008,
no pet.) (mem. op.) ..................................................................... 9
Perkins v. Groff,
936 S.W.2d 661 (Tex. App.—Dallas 1996, writ denied)......... 13
Plantation Prod. Props., L.L.C. v. Meeks,
2004 Tex. App. LEXIS 8206 (Tex. App.—Waco Sept. 8, 2004,
no pet.) (mem. op.) ................................................................... 13
Rodriguez v. Tinsman & Houser, Inc.,
13 S.W.3d 47 (Tex. App.—San Antonio 1999, pet. denied) ... 14
Seagraves v. City of McKinney,
45 S.W.3d 779 (Tex. App.—Dallas 2001, no pet.) .................... 9
Simmons v. Elmow Holdings, Inc.,
2008 Tex. App. LEXIS 5199 (Tex. App.—Fort Worth July 10,
2008, pet. denied) (mem. op.) .............................................. 9, 16
Slagle v. Prickett,
345 S.W.3d 693 (Tex. App.—El Paso 2011, no pet.) .............. 14
State v. 2004 Lincoln Navigator,
2014 Tex. App. LEXIS 9557 (Tex. App.—Corpus Christi Aug.
28, 2014, pet. filed) (mem. Op.)............................................... 20
State v. Delagarza,
158 S.W.3d 25, 28 (Tex. App.—Austin [3rd Dist.] 2005, no
pet.)…. ..................................................................................... 20
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
VI
State v. One Red 1988 Chevrolet Silverado,
2001 Tex. App. LEXIS 4018, at *5 (Tex. App.—Corpus Christi
June 14, 2001) .......................................................................... 22
Taylor v. Thompson,
4 S.W.3d 63 (Tex. App.—Houston 1999, pet. denied) ............ 13
Weaver v. E-Z Mart Stores, Inc.,
942 S.W.2d 167 (Tex. App.—Texarkana 1997, no writ)......... 16
Windle v. Mary Kay, Inc.,
2003 Tex. App. LEXIS 5594 (Tex. App.—Dallas July 1, 2003,
pet. denied) (mem. op.) ............................................................ 14
FIFTH CIRCUIT CASES
States v. Aguirre,
476 F. App'x 333 (5th Cir. 2012) ............................................. 25
United States v. $92,203.00,
537 F.3d 504 (5th Cir. 2008).................................................... 17
United States v. Loftis,
607 F.3d 173 (5th Cir. 2010).................................................... 25
OTHER CASES
People v. One 1939 La Salle 8 Touring Sedan,
45 Cal. App. 2d 709 (1941)...................................................... 22
People v. One 1941 Buick Club Coupe,
72 Cal. App. 2d 593 (1946)...................................................... 22
State v. One 1968 Buick Electra, Del. Reg. 43003,
301 A.2d 297 (Del. Super. 1973) ............................................. 22
State v. One 1984 Toyota Truck,
311 Md. 171, 533 A.2d 659 (1987).......................................... 28
United States v. Ferro,
681 F.3d 1105 (9th Cir. 2012)............................................ 30, 31
von Hofe v. United States,
492 F.3d 175 (2nd Cir. 2007) ................................................... 30
UNITED STATES CONSTITUTION
U.S. CONST. amend. VIII ................................................. III, 30, 31
U.S. CONST. amend. XIV....................................................... 27, 30
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
VII
TEXAS CONSTITUTION
TEX. CONST. art. I, §§ 3, 13, 19 ................................................... 27
TEX. CONST. art. I, §13 ................................................................ 30
TEXAS CODE OF CRIMINAL PROCEDURE
TEX. CODE CRIM. PROC. ANN. arts. 59.01 ................................. VIII
TEX. CODE CRIM. PROC. ANN. art. 59.02 ................................... 2, 3
TEX. CODE CRIM. PROC. ANN. art. 59.04 ............................ VIII, 10
TEX. CODE CRIM. PROC. ANN. art. 18.06(b)....................... 7, 11, 16
TEXAS FAMILY CODE
TEX. FAM. CODE § 3.201(b) ................................................... 24, 26
TEX. FAM. CODE §3.201(c) .......................................................... 25
TEX. FAM. CODE §3.202(c) .............................................. 24, 25, 26
TEXAS RULES OF CIVIL PROCEDURE
TEX. R. CIV. P. 166a .................................................................... 17
TEX. R. CIV. P. 166a(f) ................................................................ 17
OTHER AUTHORITIES
Don Clemer and Ann B. White, Texas District & County
Attorney Association, Guide to Asset Seizure and Forfeiture
(2010) ................................................................................. 10, 15
Joseph W. McKnight, Family Law: Husband and Wife, 37 SW.
L.J. 65 (1983) ........................................................................... 24
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
VIII
REQUEST FOR ORAL ARGUMENT
TO THE HONORABLE COURT:
Appellant requests that oral argument be granted. Argument would
benefit the Court because issues of first impression are involved, statutory
and constitutional provisions that lack judicial interpretation are implicated,
and the underlying circumstances may be easier understood verbally.
STATEMENT OF THE CASE
This case primarily challenges a trial court’s grant of summary
judgment in favor of the State within a forfeiture suit under Chapter 59,
Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. arts.
59.01-59.04. (For orders granting summary judgment, and denying motion
for new trial, see Appendices A-1 and A-2 in Appellant’s Original Brief.)
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
IX
ISSUES PRESENTED
I. The trial court erred by granting summary judgment for Plaintiff
because Defendant’s evidence conclusively proved, or raised a fact
issue on, every element of the statute of limitations defense.
II. The trial court erred by granting full and final summary judgment
because all issues, claims, and defenses were not decided.
III. The trial court erred by granting summary judgment for Plaintiff
because evidence supporting Plaintiff’s summary judgment was
incompetent and insufficient.
IV. Summary judgment was premature because the case was still
developing, the state did not comply with discovery, evidence
discovered after the trial court’s order of summary judgment shows
this, and Defendant was not provided a fair opportunity to investigate
and develop the case—due to the fault of Plaintiff.
V. Summary judgment could not have been granted based on authorities
analyzing a spouse’s right to utilize an innocent owner defense because
those authorities are wrong, and should be overruled.
VI. Summary judgment should not have been granted for Plaintiff for any
other reason.
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
X
STATEMENT OF FACTS
On March 5, 2014, a warrant issued for seizure of a 2004 Dodge truck
and 2000 Buick sedan located at Mrs. Alcorn’s residence, 624 N. Wilcox,
Rockdale, Texas 76567. (I C.R. 302) Deputy Chris White’s affidavit
supporting the warrant alleged two instances (almost 14 and 8 months)
before seizure when Mrs. Alcorn’s husband used each vehicle to sell cocaine
to a confidential informant. (Id. at 304) Deputy White said the events were
documented on video. (Id. at 303-04)
Deputy White’s search for registered owners of the vehicles found
that James Rackley and Gill Shamsher were named on certificate of title. (I
C.R. 303) Deputy White also claimed Mrs. Alcorn’s husband was the owner
of the vehicles, which were kept at the known residence of 624 N. Wilcox,
and said neither Rackley nor Shamsher appeared to have “any claim to the
vehicles in the previous year to present.” (Id. at 304)
The next day, March 6, 2014, law enforcement seized the vehicles at
Mrs. Alcorn’s residence, 624 N. Wilcox, Rockdale, Texas 76567. (I C.R.
306) Before seizing the vehicles, law enforcement provided Mrs. Alcorn
with a warrant, and return and inventory. (Id. at 228-29) Law enforcement
also observed Mrs. Alcorn remove her personal items from each vehicle, and
had her sign an inventory sheet describing those items, such as her W.S.L.
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
1
perfume, cell-phone plugs, house key, kids’ medical papers, and other items.
(I C.R. 225-31) Mr. Alcorn was not present because he was in the Milam
County jail, where he had been for about a month. (Id. at 226, 308)
On March 18, 2014, the Milam County District Attorney filed a notice
of seizure and intended forfeiture (i.e., the petition). (Id. at 5) Another
affidavit by Deputy White was attached, which basically gave the same facts
as the one sworn to before seizure. (Id. at 10-11) A Schedule A was also
attached, and valued the the truck at $6,000, and the car at $3,000. (Id. at 53)
The State personally served James Rackley and Gill Shamsher at their
residences, personally served Mr. Alcorn in jail, and later obtained
judgments against each. (I C.R. 20, 22, 24; 28; 116; 351-353)
On May 28, 2014, eighty-two days after seizure, Mrs. Alcorn filed an
answer even though she had not been served by any method. (I C.R. 26)
The State then moved for traditional and no-evidence summary
judgment against Mrs. Alcorn. (I C.R. 38-43) First, the State argued that
Mrs. Alcorn lacked standing to raise the innocent owner defense of Article
59.02(c), Texas Code of Criminal Procedure, because she was a spouse. (Id.
at 38, 39) Next, it argued that (1) no evidence supported Mrs. Alcorn’s
ownership interest because those listed on certificate of title were presumed
owners, and or (2) no evidence supported that Mrs. Alcorn had a reasonable
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
2
lack of knowledge that the vehicles would be used to commit actionable
offenses. (I C.R. 39-43)
Mrs. Alcorn filed a verified amended answer, denied all allegations,
denied that all conditions precedent were met, and asserted affirmative
defenses (limitations, disproportional forfeiture, and innocent owner
defenses under §§ 59.02(c) and (h)(1)(C)). (I C.R. 127) She also responded
and objected to the State’s motions, evidence, pleadings, discovery, and
timing, and argued she was entitled to summary judgment. (Id. at 130-329)
Mrs. Alcorn submitted evidence along with her summary judgment
motion and response, including an affidavit from James Rackley.
Rackley said he sold the truck to Mrs. Alcorn’s husband in 2013,
delivered title and transfer papers to Mrs. Alcorn at Meadowbrook Baptist
Church, and had already informed the State about the transfer. (Id. at 223)
Mrs. Alcorn’s affidavit said she drove both vehicles, paid for the
Buick, and that, within a month before seizure, Officer Assaker saw her with
the truck at a carwash after it was used to help friends move. (Id. at 226)
Mrs. Alcorn informed that the rims seized with the Buick were worth
more than the values given on Schedule A, and that they had disappeared in
police custody. (Id.) Mrs. Alcorn worked extra hours; her husband worked in
his family’s lawn business and various temp agency jobs, traded property,
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
3
sold property he fixed up, and financed vehicles, and had reasonable
explanations about where he got money; her mother-in-law baby-sat her kids
because she and her husband both worked; and she had no knowledge or
belief that her husband used or sold drugs, or did so using any of their
property, and, even if he did, she did not consent to it. (I C.R. at 226-27)
One hundred fifty two days after seizure (on August 6), the State
amended its petition, added Mrs. Alcorn as a party, gave her address for
service of process as 624 N. Wilcox, prayed she be cited to appear, and
faxed a copy to her attorney. (I C.R. 331-33, 335, 336)
On August 27, the trial court sent a letter recognizing Mrs. Alcorn’s
standing, and her rights as an interest holder under the law, but said her
affidavit did “not ring true,” and that the State’s motion would be granted. (I
C.R. 347) Before judgment was granted, Mrs. Alcorn sent written requests to
the court for clarification of the court’s proposed decision, and, again, for
rulings on responses and objections. (Id. at 349) Without responding, the
trial court granted final summary judgment. (Id. at 351)
Mrs. Alcorn moved for new trial, renewed objections and requests,
objected to the court’s action and grant of final judgment, and presented new
evidence she would have presented had there been sufficient time for
discovery. (I C.R. Supp. 4-137)
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
4
Within Mrs. Alcorn’s motion for new trial, Gill Shamsher’s affidavit
showed Mrs. Alcorn actually did pay $2,000 for the Buick. (I C.R. Supp. 88)
An Eagle Automotive receipt showed improvements of $3,000 made to the
Buick on August 5, 2013—roughly seven months after the alleged act. (Id.
at 90) John Krause of Rockdale Auto Specialties gave an affidavit stating he
“did paint and body work on the Alcorns’ Buick” for a “total value of …
$4,000.” (I C.R. 357) A receipt from The Rim Shop in Austin showed rims
seized with the truck were purchased for $1,800 on February 4, 2014—six
months after the act alleged by the State. (Id. at 360)
More pictures and evidence of the missing rims seized with the Buick
showed their value, and later disappearance from a highly secure impound
area at the sheriff’s office. (I C.R. 226, 230-31) (I C.R. Supp. 106-09)
Finally, the court was again informed of hardships and severe family
sicknesses surrounding Mrs. Alcorn and her attorney; and the State’s
untimely service, unreasonably burdensome discovery tactics, failure to
disclose evidence (like witnesses, parties, method of valuation, and
disappearance of property), and unreasonable timing in moving for no-
evidence summary judgment. (I C.R. Supp. 126-33) (I C.R. 173-80; 238-43).
Even so, the trial court denied her motion for new trial, and refused to
rule on her objections for the third time. (I C.R. Supp. 138)
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
5
SUMMARY OF REPLY POINTS
Mrs. Alcorn did not waive service under the limitations defense
because she appeared more than 50 days after the limitation period expired.
The State served Mrs. Alcorn with copies of the warrant and inventory
because she was an owner or person in possession of property that it seized;
therefore, the State cannot fairly argue for the first time on appeal that it did
not know Mrs. Alcorn was an owner or possessor. The State was required to
explain its diligence in the trial court, but failed to do that, and cannot try to
create a fact issue by explaining on appeal how its actions were diligent.
The State incorrectly assumes both that underlying facts support its
affidavit, and that probable cause to believe property is contraband also
means the property is, in fact, contraband.
The rule prohibiting spouses from using innocent owner defenses is
not “well-settled.” In fact, it is inconsistent with law. Spouses need those
defenses to prevent inequitable results, and to level the playing field.
Finally, the State starts and ends with facts entirely absent from the
record, and ignores problems with its motion and the trial court’s judgment.
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
6
I. REPLY POINTS
A. THE STATE CONTINUES TO IGNORE RULES REGARDING SERVICE.
Upon seizing Mrs. Alcorn’s vehicles, the State served her with copies
of a warrant, return and inventory, and had her sign an inventory log for
personal items she removed from the vehicles. (I C.R. 228-231)
State agents must give a copy of the warrant to the owner or person in
possession of the place where property is seized. TEX. CODE CRIM. PROC. art.
18.06(b). State agents must also sign and “present a copy of the inventory to
the owner or other person in possession of the property.” Id.
Although the State served Mrs. Alcorn with a warrant and inventory,
she was not served with suit.
Mrs. Alcorn first appeared on May 28, 2014. (I C.R. at 26) This was
over 50 days after the Thirty-day limitations period ran on April 5, and 82
days from when seizure occurred on March 6. (Id. at 306)
Because Mrs. Alcorn appeared outside the limitations period, service
was not waived. Because the State acknowledged Mrs. Alcorn’s status by
serving her a warrant and inventory, it cannot claim her status was unknown.
Thus, even using the State’s interpretation, diligence was not shown
because the State did not explain an 82-day-delay.
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
7
1. Filing an answer does not waive service of process for purposes of
the statute of limitations defense.
Seizure occurred on March 6, 2014. (I C.R. 306) Appellant answered
on May 28; over 50 days after the Thirty-day limitations period ran on April
5. (Id. at 26)
The State erroneously uses $27,920.00 v. State to advance a theory
that a defendant waives service under the statute of limitations defense by
appearing in suit. 37 S.W.3d 533 (Tex. App.—Texarkana 2001). First,
$27,920.00 mentions no statute of limitations defense or 30-day service
requirement. Second, Yingling, the claimant in $27,920.00, did not lose
because he generally appeared, but because he failed to show he had any
interest in the property being forfeited. 37 S.W.3d at 537-38.
In fact, the Texarkana Court said that once Yingling showed himself
to have an interest in the property, “he was a necessary party on whom
service was required to be made, and without service there could be no
binding judgment against him.” Id. at 537. Thus, $27,920.00 actually
supports that the State would be responsible for properly serving Yingling if
he proved his interest—even if it initially overlooked that interest.
Next, the State’s theory confuses two concepts. Attacking service
made outside the 30-day window differs from complaining over the “form,
substance, or manner of service…” $6453.00 v. State, 63 S.W.3d 533, 535-
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
8
36 (Tex. App.—Waco 2001, no pet.) (distinguishing limitations defense
from defective service). The 30-day service requirement goes to “timeliness
of service. It relates to the affirmative defense of limitations.” Id. at 536.
Here, Appellant attacks service under the 30-day limitations defense.
For this purpose, appearing after the 30-day period does not waive service.
Griffin v. Hale, 2010 Tex. App. LEXIS 6094, at *3 (Tex. App.—Eastland
July 29, 2010, no pet.) (mem. op.) (finding no waiver when appearance
occurred after limitations period); $24,156.00 v. State, 247 S.W.3d 739, 747
(Tex. App.—Texarkana 2008, no pet.) (same); Simmons v. Elmow Holdings,
Inc., 2008 Tex. App. LEXIS 5199, at *13 (Tex. App.—Fort Worth July 10,
2008, pet. denied) (mem. op.) (same); Parmer v. DeJulian, 2008 Tex. App.
LEXIS 6875, at *9 (Tex. App.—Tyler Sept. 17, 2008, no pet.) (mem. op.)
(same); James v. Gruma Corp., 129 S.W.3d 755, 760-61 (Tex. App.—Fort
Worth 2004, pet. denied) (same); Seagraves v. City of McKinney, 45 S.W.3d
779, 783 (Tex. App.—Dallas 2001, no pet.) (same); cf. Baker v. Monsanto
Co., 111 S.W.3d 158, 160-61 (Tex. 2003) (complaint about service barred
when appearance made within limitations period).
Thus, giving full devotion to the State’s interpretation, the State must
prove that it used due diligence to effectuate service on Mrs. Alcorn because
her first appearance was more than 50 days after the limitations period ran.
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
9
2. The State was not diligent because it was unquestionably aware
that Mrs. Alcorn required service by citation, its actions speak
louder than words, and, even then, its words are too late.
As master of its suit, Plaintiff had to ascertain claims, discover those
requiring service, and ensure proper execution of service. Mrs. Alcorn did
not owe these duties, nor was she required to thrust herself into litigation for
plaintiff’s advantage, because, absent proper service, she did not need to
participate at all. Ross v. Nat'l Ctr. for the Empl. of the Disabled, 197
S.W.3d 795, 797-98 (Tex. 2006) (“A party who becomes aware of the
proceedings without proper service of process has no duty to participate in
them.” (quoting Caldwell v. Barnes, 154 S.W.3d 93, 97 n.1 (Tex. 2004)).
As such, the State had the duty to make diligent efforts to serve
owners, interest holders, and possessors. Both the law and state publications
place this responsibility on the State.1 Thus, the State was not diligent in its
attempts to serve Mrs. Alcorn because her possession of the vehicles was
clearly observed through the eyes of multiple State agents. And, Mrs.
Alcorn’s other interests were known or constructively known, but even if
some interest were unknown, due to lack of action or explanation or both, no
evidence supports that the State diligently strived to make it known.
1
TEX. CODE CRIM. PROC. art. 59.04(b), (c), and (j); Don Clemer and Ann B. White,
Texas District & County Attorney Association, Guide to Asset Seizure and Forfeiture, at
7 (2010) (hereafter “TDCAA Guide”).
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
10
a. The State knew Mrs. Alcorn was entitled to service by citation.
The State’s agents came to Mrs. Alcorn’s house; took cars from her
driveway; presented her with a warrant and inventory for those vehicles;
observed her remove her personal items from each vehicle; had her sign an
inventory for those items; and described those items on the inventory, such
as her W.S.L. women’s perfume, cell-phone plugs, house key, and kids’
medical papers. (I C.R. 225-31)
Mrs. Alcorn’s spousal status was undisputed, she signed the inventory
with the name Alcorn, and easily available public records show the State had
reason to know this status. (Id. at 311, 300, 298) (I C.R. Supp. 123) The
State knew Appellant’s husband was not in possession since it knew that he
was in jail and that he had been there for almost a month. (I C.R. 308)
Mrs. Alcorn drove both vehicles, was seen by Officer Assaker in
possession of the truck at a carwash in the month before seizure, paid money
for the Buick, and none of this was challenged. (Id. at 226) (I C.R. Supp. 88)
At the very least, Plaintiff knew Mrs. Alcorn was in possession, and
had inquiry notice that her interest may be more significant.
And, the State cannot claim Mrs. Alcorn was not in possession after it
served her with a warrant and inventory as an owner or person in possession
of the property. TEX. CODE CRIM. PROC. art. 18.06(b). (I C.R. 228-29)
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
11
Assuming the State did not know of Appellant’s ownership interest,
there is no valid excuse for failing to serve her because it served two people
it knew before seizure claimed no interest in the vehicles. (I C.R. 217-18)
The State also irrefutably admitted before seizure and before filing
suit that Mrs. Alcorn’s husband owned both vehicles, which were kept at
624 N. Wilcox. (Id. at 217, 220) James Rackley (a neutral party, and one
listed on certificate of title) also stated that he possessed no interest in the
truck, delivered it to Mr. Alcorn, passed its title and transfer papers to Mrs.
Alcorn, and relayed this to the State. (Id. at 223) Because the State served
two people it knew had no interest before seizure, ignoring Mrs. Alcorn’s
interest—even if it did not think she had any interest—was not diligent.
But, the State did know, or is deemed to have known, of her interests.
The State’s amended petition “added Mrs. Alcorn as a statutory claimant”
(State’s Br. at 3, ¶ 1, ll. 2-3), and confirmed its awareness that she was
entitled to service by citation at 624 N. Wilcox. (I. C.R. 332-33, 335)
For what it’s worth, the trial court also found “Ms. Alcorn was
entitled to the requisite rights provided any holder of interest under Chapter
59.” (I C.R. 347-48)
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
12
b. The State failed to show diligence because it offered no explanation.
Appellant answered on May 28, 2014 (I C.R. 26), which was 82 days
from the day of seizure on March 6. (Id. at 306)
The State did not respond with any explanation of diligence it used to
obtain service on Mrs. Alcorn; thus, the State was not diligent as a matter of
law. One 1991 Chevrolet Blazer v. State, 905 S.W.2d 443, 445 (Tex. App.—
Amarillo 1995, no writ) (holding diligence lacking as a matter of law when
“no excuse is offered…”). See also Hull v. Vidaurri, 2010 Tex. App. LEXIS
424, at *17 (Tex. App.—Austin [3rd Dist.] Jan. 22, 2010, pet. denied) (mem.
op.) (requiring plaintiff to “explain all gaps,” show “diligent efforts”, and
explain efforts taken during the “allegedly improper gap.”); Mitchell v.
Timmerman, 2008 Tex. App. LEXIS 9710, at *20 (Tex. App.—Austin [3rd
Dist.] Dec. 31, 2008, no pet.) (mem. op.) (discussing responsibility “to
explain the delay.”); Plantation Prod. Props., L.L.C. v. Meeks, 2004 Tex.
App. LEXIS 8206, at *18-19 (Tex. App.—Waco Sept. 8, 2004, no pet.)
(mem. op.) (plaintiff did not show diligence by failing to “explain the prior
57-day delay”); Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex. App.—Houston
1999, pet. denied) (finding no diligence because party did not explain efforts
taken in the 26 days after limitations period ran); Perkins v. Groff, 936
S.W.2d 661, 668 (Tex. App.—Dallas 1996, writ denied) (diligence lacking
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
13
where party did not explain 18-day delay); Knox v. Donovan Lowery Ins.
Agency, 405 S.W.2d 160, 161 (Tex. Civ. App.—Eastland 1966, no writ) (no
diligence for unexplained 8-day delay).
Further, the State’s untimely attempt to explain its diligence on appeal
still fails. The State only presents excuses about why it did not seek service
instead of showing efforts taken to obtain service on Mrs. Alcorn. Slagle v.
Prickett, 345 S.W.3d 693, 698 (Tex. App.—El Paso 2011, no pet.) (“plaintiff
must explain what steps he took to obtain service, not explain why he did
nothing.”); Laidley v. City of San Marcos, 2011 Tex. App. LEXIS 7712, at
*13 (Tex. App.—Austin [3rd Dist.] Sept. 21, 2011, no pet.) (mem. op.)
(quoting Slagle); Mauricio v. Castro, 287 S.W.3d 476, 479 (Tex. App. —
Dallas 2009, no pet.) (finding that plaintiff must “present evidence regarding
the efforts that were made to serve the defendant.” (citing Proulx v. Wells,
235 S.W.3d 213, 216 (Tex. 2007)); Rodriguez v. Tinsman & Houser, Inc., 13
S.W.3d 47, 51 (Tex. App.—San Antonio 1999, pet. denied) (no diligence for
25 day delay after limitations date where “inactivity or complete failure to
attempt service … was due to miscommunication.”); Windle v. Mary Kay,
Inc., 2003 Tex. App. LEXIS 5594, at*6-7 (Tex. App.—Dallas July 1, 2003,
pet. denied) (mem. op.) (attorney’s affidavit negated diligence “[b]y failing
to state what efforts counsel made to effectuate service”).
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
14
The State searched for those named on certificate of title before
seizing the vehicles, but never did any other search after this point. (I C.R.
304-05). There is no explanation for efforts taken during the 82-day gap
from the seizure date to Mrs. Alcorn’s appearance.
Both the law and the State’s very own playbook contemplate that
people who are not listed on certificate of title might still require service of
process. The Texas District & County Attorneys Association guide on asset
forfeiture says that one “could establish ownership of a vehicle, not titled in
her name, by presenting evidence of a purchase contract and a disclaimer by
the owner of record… Equitable owners could conceivably include
unrecorded lienholders or contingent beneficiaries of gifts or trusts.” 2
The guide, like the statute, also says, “The owner of the property, any
interest holder in the property, and persons in possession of the property at
the time of seizure must be served by citation as per Article 59.04(b), (c),
and (j).” 3 And, “when the possessor of the vehicle is not the recorded
registered owner… the possessor must be separately served with citation.” 4
The State cannot claim it did not know the law. Belleza-Gonzalez v.
Villa, 57 S.W.3d 8, 12 (Tex. App.—Houston 2001, no pet.) (agreement to
2
TDCAA Guide, at 7.
3
TDCAA Guide, at 31.
4
Id. at 33.
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
15
delay service that was unenforceable under Rule 11 failed to explain
“diligence to seek service of process”); Weaver v. E-Z Mart Stores, Inc., 942
S.W.2d 167, 169-70 (Tex. App.—Texarkana 1997, no writ) (explanation of
delay based on ignorance of law raises no fact issue as to diligence).
The State had 14 months to discover claimants for one vehicle, and 7
for the other; had another 30 days after seizure to ensure service; and had
manpower and resources available from at least three law enforcement
entities. (I C.R. 10-11) And, the State already knew that those listed on
certificate of title claimed no interest. (Id. at 217-18) Thus, with all these
resources, the State did not act prudently by performing one fruitless search.
The State also did not act diligently by ignoring Appellant’s interest,
especially after it served her with warrant and inventory as an owner or
person in possession of the property. Tex. Code Crim. Proc. art. 18.06(b).
Therefore, by the State’s theory, the State has no valid explanation
because it made no efforts to procure issuance of citation or effect service on
Mrs. Alcorn for at least 81 days. Under Appellant’s view, service was never
effected. Simmons, 2008 Tex. App. LEXIS 5199, at *14 (finding that
plaintiff “never effected service” on defendant, and defendant did not waive
right to service when it appeared after limitations period) (emphasis original)
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
16
B. THE STATE’S EVIDENCE IS NOT COMPETENT FOR SUMMARY JUDGMENT.
The State’s failure to submit evidence in accordance with rules of
summary judgment cannot be excused.5 Deputy White’s affidavit could not
support summary judgment because it was impermissibly based on facts that
were known and provided by out of court declarants.6 Even then, Deputy
White only said they were documented on unattached, unproduced videos. 7
Also, the State must conclusively prove both (1) that probable cause
exists to seize property believed to be contraband, and (2) that property is
actually contraband. State v. $90,235.00, 390 S.W.3d 289, 293 (Tex. 2013).
Thus, the State did not prove probable cause to believe the vehicles
were contraband, and it could not assume the same evidence also established
that the vehicles were, in fact, contraband.
5
Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 435 (Tex. App.—San
Antonio 1993, writ denied) (“The law in Texas is well settled that summary judgment is a
harsh remedy which must be strictly construed.”).
6
TEX. R. CIV. P. 166a(f); Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (finding
summary judgment affidavit incompetent because “testimony about … out-of-court
sources was hearsay” and not within affiant’s knowledge). See also United States v.
$92,203.00, 537 F.3d 504, 507-510 (5th Cir. 2008) (reversing summary judgment
because investigator’s affidavit was hearsay—based on what other officers told
investigator—and, thus, not based on personal knowledge either).
7
Natural Gas Clearinghouse v. Midgard Energy Co., 23 S.W.3d 372, 380 (Tex. App.—
Amarillo 2000, pet. denied) (finding that hearsay statements in affidavits may not be
made the basis of a summary judgment, and that supporting information found on
unattached computer disk does not support summary judgment as a matter of law).
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
17
1. The State did not conclusively prove probable cause because only
unidentified declarants, lacking qualifications and support by
independent corroboration, knew the determinative facts.
The affidavit dealt with one (or two) confidential informant(s). (I.
C.R. 10) Because the informant was confidential, and no facts demonstrated
its veracity, the State’s affidavit started off with two strikes against it.
Although no facts prove up past reliability, the State says probable
cause was proven because the information was detailed. (State’s Br. at 16.) It
first boasts of the informant(s) having detailed knowledge about the alleged
substances being cocaine. But that begs the question: how did the informant
know? Was it a pro drug dealer, ex-cop, DPS, lab tech, or another known to
knowledgeable officers? We don’t know. The affiant never said.
The affiant never said any officer actually saw illegal drugs; only that
an officer could identify Mr. Alcorn and his vehicle. (I. C.R. 10) The affiant
never described any substance or packaging; never said if the informant(s)
showed “cocaine” to an officer after the “sale”; never said if lab or chemical
tests were done; and never gave an amount of money involved in any “sale”.
The affiant never said that he saw any video showing illegal drugs;
never referenced the location of any video(s); never attached any video(s);
and never said whether any video(s) showing illegal drugs currently exist.8
8
Nat. Gas Clearinghouse, supra, n.7 (finding affidavit insufficient for not attaching disk)
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
18
The State next claims the informant(s) arranged “multiple drug sales”
that showed an on-going enterprise, and Mr. Alcorn’s “modus operandi,”
which is (surprisingly argued to mean) that selling drugs from a vehicle at a
given location is somehow unique or original. (State Br. at 17.)
However, this was not a case where one saw activity 24 hours ago.
Only one act was alleged for each auto in a 14-month period. No other acts,
legal or illegal, were alleged. The affiant never said why time, day, location,
conduct, body language, and or circumstances made two interactions “drug
sales” as opposed to friendly exchanges. The two events were in different
locations, different vehicles, over six months apart, and at different times,
thus, there is no indication of on-going crime or a modus operandi.
The affiant also had no personal knowledge of either act. No other
acts, legal or illegal, inside or outside of the vehicles, were alleged. The
affiant did not see any other acts, illegal drugs, or depictions of illegal drugs.
The affiant never said who informed him of anything, whether he spoke to
Lieutenant Clore, the informant(s), or read somebody’s report or field notes.
Thus, the affiant provided no independent corroboration—and that’s strike
three.9
9
Elardo v. State, 163 S.W.3d 760, 766 (Tex. App.—Texarkana 2005, pet. ref'd)
(although unnamed informant saw suspect view illegal material stored on suspect’s
computer in suspect’s house in last 12 hours, described house, knew suspect very well,
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
19
2. Existence of probable cause to believe property is contraband
does not equally prove that the property is, in fact, contraband.
The State claimed (without any discussion) that the same facts used to
prove probable cause also prove contraband. (State’s Br. at 17.) The State
must conclusively prove each element because the analyses are different.
$90,235.00, 390 S.W.3d at 293.
Right now, there is no indication that anyone, or any evidence, will
positively identify illegal drugs. Because the affiant never said if any officer
actually saw illegal drugs, only the confidential informant(s) may testify to
this fact. What are the motives of the informant(s)? After 14 months, are
witnesses (informants) dead, lacking memory, or still within reach? And,
and heard on several occasions that suspect kept illegal material, warrant’s facts were
insufficient to find “the 'reliable source' … reliable” and did not “contain any
corroboration of the informant's information or other indicia of reliability.”); Parish v.
State, 939 S.W.2d 201, 204 (Tex. App.—Austin [3rd Dist.] 1997, no pet.) (“We do not
think these scant facts [corroborating that defendant’s motel room and car were properly
identified by the informant] supplied a basis for the tip's reliability. They were
ascertainable by anyone who Parish may have been in contact with; for example, he may
have related them to the motel clerk when he registered for the room.”). Compare above
cases with, Flores v. State, 319 S.W.3d 697, 703 (Tex. Crim. App. 2010) (stating
informer's tip that illegal drugs were at certain residence may have been insufficient by
itself, but affiant independently corroborated tip with two garbage-can searches outside
residence); Davis v. State, 202 S.W.3d 149, 156 (Tex. Crim. App. 2006) (informant tips
were corroborated by crimestopper's tip, and affiant’s smell of drugs emitting from house
within last 24hrs); State v. Delagarza, 158 S.W.3d 25, 28 (Tex. App.—Austin [3rd Dist.]
2005, no pet.) (tip from anonymous informer of unknown reliability corroborated by
officers’ collection of paraphernalia from trash cans outside residence that field tested
positive for cocaine). See also State v. 2004 Lincoln Navigator, 2014 Tex. App. LEXIS
9557, at *17-20 (Tex. App.—Corpus Christi Aug. 28, 2014, pet. filed) (mem. Op.)
(finding no reasonable suspicion to support informant’s tip, examining need for police to
corroborate informant’s information, and discussing Davis v. State, 989 S.W.2d 859, 865
(Tex. App.—Austin [3rd Dist.] 1999, pet. ref'd), where police provided insufficient
corroboration of tip by merely confirming the description of the car and the occupants)).
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
20
what if no video exists? Even if it does exist, does it show illegal drugs?
Right now, we do not know because the affiant never said that he watched it.
In other words, regardless of probable cause, the State still might not
prove its case at trial.10 If proof of probable cause also established
contraband, the state could move for summary judgment whenever a judge
granted a warrant because the officer’s belief would be conclusive. This
would violate the right to jury trial, and there would be no way to test the
government’s reasonable belief. This is not how our system is/was set up.
Appellant stands by all objections already made to the State’s
summary judgment evidence.
10
Garcia, 859 S.W.2d at 435 (“summary judgment should not amount to a trial by
deposition or affidavit, or be resolved by weighing the relative strength of the conflicting
facts and inferences.” (citing Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557,
562-63 (Tex. 1962)).
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
21
C. AMRANI-KHALDI IS NOT ‘WELL-SETTLED’, IS CONTRARY TO LAW, AND
OVERRULING IT WOULD ONLY LEVEL THE PLAYING FIELD.
Amrani-Khaldi v. State 11 is not “well-settled.” (State’s Br. at 18.) Of
the few appellate cases referencing Amrani-Khaldi’s rule, none analyze it, 12
and it is unessential to the holding in others.13 Amrani-Khaldi also does not
cite one Texas case or discuss any other case to support its rule.14
Amrani-Khaldi and Gaston are skeletal remains of once popular, but
now outdated public policy rationales. For instance, innocent owners could
not recover on insurance policies for property damage caused by a co-owner.
15
This rule prevented wrongdoers from benefitting via co-ownership, and
the harsh result deterred insurance fraud by co-owners acting in collusion. 16
11
575 S.W.2d 667 (Tex. Civ. App.—Corpus Christi 1978, no writ).
12
Gray v. State, 1999 Tex. App. LEXIS 8213, at *5-7 (Tex. App.—Austin [3rd Dist.]
Nov. 4, 1999, no pet.) (mem. op., not designated for publication); Bochas v. State, 951
S.W.2d 64 (Tex. App.—Corpus Christi 1997, no writ); Gaston v. State, 641 S.W.2d 261,
264 (Tex. App.—Houston 1982, no pet.).
13
The Gray claimant was a party to the offense, and was not innocent. 1999 Tex. App.
LEXIS 8213, at *5-6. In Bochas, a defendant-spouse’s claim was subordinate to the claim
of a non-spouse-buyer, who could not establish a right to relief; and the court merely
referenced Gaston, supra, in a footnote, but entertained the defendant-spouse’s appeal
anyway. 951 S.W.2d at 67 n.2. See also State v. One Red 1988 Chevrolet Silverado, 2001
Tex. App. LEXIS 4018, at *5 (Tex. App.—Corpus Christi June 14, 2001) (mem. op., not
designated for publication) (issue tried by consent).
14
Amrani-Khaldi, 575 S.W.2d at 669 (citing People v. One 1939 La Salle 8 Touring
Sedan, 45 Cal. App. 2d 709, 712 (1941); People v. One 1941 Buick Club Coupe, 72 Cal.
App. 2d 593, 597 (1946); State v. One 1968 Buick Electra, Del. Reg. 43003, 301 A.2d
297 (Del. Super. 1973)).
15
Kulubis v. Tex. Farm Bureau, 706 S.W.2d 953, 955 (Tex. 1986).
16
Id.
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
22
Yet, strict application of such rules create results just as repugnant to
public policy, like unjust enrichment to insurance companies; 17 divorce and
partition of property merely to avoid “the possibility that the wrongdoing
spouse might benefit”; 18 and “the injustice of imputing one person's
criminal acts to an innocent victim.” 19
Thus, “courts must also recognize that public policy may change over
time.” 20
Furthermore, public policy rules cannot be created or upheld unless
courts carefully construe “the constitution, laws, and judicial decisions.” 21
“Courts are to derive public policy from existing law, not create it.” 22
Accordingly, courts cannot decline to apply a statutory remedy, but do
just that by denying spouses the use of available statutory defenses to protect
well-recognized property rights. Therefore, Amrani-Khaldi’s rule cannot be
sustained because it is contrary to law, and creates inequitable results.
17
Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 674-75 (Tex. 2008)
(Hecht, J., concurring) (citing Kulubis, 706 S.W.2d at 955).
18
Texas Farmers Ins. Co. v. Murphy, 996 S.W.2d 873, 880-881 (Tex. 1999).
19
Fairfield Ins. Co., 246 S.W.3d at 674-75 (Hecht, J., concurring) (citing Kulubis, 706
S.W.2d at 955).
20
Id. at 673.
21
Id.
22
Id.
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
23
1. Amrani-Khaldi’s rule is unsupported by Texas law because no one
incurred liability, there is no liability, and Mrs. Alcorn's
community property cannot be forfeited merely due to the act of a
spouse.
The Amrani-Khaldi rule was formulated from § 5.61 (now §3.202(c)),
Texas Family Code, expressing that a spouse’s sole or joint management
community property is subject to the liabilities incurred by the spouse before
or during marriage. 575 S.W.2d at 668. Based on this provision, Amrani-
Khaldi reasoned that, “community property is not exempt from forfeiture
where such property is used by a spouse in such a manner as to contravene
[forfeiture laws], even though such property is so used by one spouse
without the knowledge or consent of the other spouse.” Id. at 668-69.
However, the family code does not support the above rule. “[A]
community debt means nothing more than that some community property is
liable for its satisfaction.” 23 Yet, “[e]xcept as provided by [§§ 3.201-03],
community property is not subject to a liability that arises from an act of a
spouse.” TEX. FAM. CODE § 3.201(b). “A spouse does not act as an agent for
the other spouse solely because of the marriage relationship.” Id. §(c). And,
these family code sections do not create liability.24
23
Tedder v. Gardner Aldrich, LLP, 421 S.W.3d 651, 655 & n.21 (Tex. 2013) (quoting
Joseph W. McKnight, Family Law: Husband and Wife, 37 SW. L.J. 65, 76-77 (1983)
(discussing Tex. Fam. Code §3.202).
24
Tedder, 421 S.W.3d at 655 n.21 (noting that “[§3.202] does not impose liability”).
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
24
In this case, there “is not a forfeiture for the payment of the owner's
debts.” Lot 39 v. State, 85 S.W.3d 429, 432 (Tex. App.—Eastland 2002, pet.
denied). There “is not a forfeiture for … the payment of the claims of
creditors.” Id. There is no tort liability, or needed compensation “to make
someone whole for injury caused by unlawful use of the property.” Austin v.
United States, 509 U.S. 602, 625 (1993) (Scalia, J., concurring). There is
nothing owed for “any damages sustained by society or … the cost of
enforcing the law.” United States v. Ward, 448 U.S. 242, 254 (1980).
And, there is not a forfeiture to pay criminal restitution or fines, or to
“satisfy a criminal debt.” United States v. Aguirre, 476 F. App'x 333, 335
(5th Cir. 2012) (explaining difference in foreclosure to pay criminal debt
versus forfeiture; wife’s interests in property could be foreclosed because
her husband owed restitution (debt) that obligated her interest; foreclosure
and forfeiture procedures are different; and no statutory excuse applied
(citing United States v. Loftis, 607 F.3d 173, 178 (5th Cir. 2010) (explaining
similar situation where statute made restitution a “debt”)).
Therefore, there is no liability, no one owes anything, and no one is
owed anything. Even so, Mr. Alcorn incurred no liability; therefore, none of
Mrs. Alcorn’s community property is subject to any liabilities incurred by
Mr. Alcorn. TEX. FAM. CODE § 3.202(c). And, Mrs. Alcorn’s community
ALCORN
V.
STATE—APPELLANT’S
REPLY
BRIEF
25
property is not subject to forfeiture merely because Mr. Alcorn’s act gave
rise to the forfeiture action because Mr. Alcorn is not her agent. TEX. FAM.
CODE § 3.201(b) (unless specified by §§ 3.201-03, community property is
“not subject to a liability that arises from an act of a spouse”); id. §(c) (“[a]
spouse does not act as an agent for the other spouse solely because of the
marriage relationship.”).
Regardless, spouses still cannot be denied the use of a statutory
remedy based on any of these family code provisions.
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2. Spouses should be able to use available statutory protections
because doing so is consistent with law, prevents inequitable
results, and only levels the playing field.
a. Spouses cannot be barred from using available statutory remedies.
Courts cannot prevent spouses from using the innocent owner defense
because the statute makes that right available. The early privateering cases
upholding forfeiture did not protect innocent owners, but they also did not
treat joint ownership differently depending on the owners’ marital status. 25
If a statute does not include an innocent owner defense—it is true—,
due process will not likely save an innocent’s property. Bennis v. Mich., 516
U.S. 442, 446 (1996) (discussing Michigan’s statute and relevant authority).
But, the above cases, and the many like them, do not justify treating
joint ownership differently depending on the owners’ marital status.
When statutes make innocent owner defenses (or other protections)
available, courts should not invent ways to deny their use to a particular
class of individuals. Doing so violates the right to equal protection under
the law. U.S. CONST. amend. XIV; and TEX. CONST. art. I, §§ 3, 13, 19.
Even if policy supports denying that right, that policy must be derived
from the law at hand because the law “circumscribes judicial authority.” 26
25
Austin, 509 U.S. at 612 (discussing law in privateering cases allowed forfeiture of the
whole ship despite owners’ innocence).
26
Fairfield Ins. Co., 246 S.W.3d at 673.
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Besides, statutory defenses have been added since Amrani-Khaldi, and
even this Court’s opinion in Gray, and those statutory provisions do not
limit the type of ownership interests protected.
Thus, all these reasons are why other state courts have said that older
“Texas cases are probably no longer good law in view of statutory changes
favoring the innocent owner defense.” State v. One 1984 Toyota Truck, 311
Md. 171, 533 A.2d 659 (1987) (citing and discussing cases).
b. Spouses should be able to use innocent owner defenses in order to
prevent inequitable results; and using such defenses would, at most,
only give spouses the same advantages as other claimants.
The State completely avoids that these two forfeitures took place
roughly 14 and 8 months after the respective acts alleged. How much money
was put into the property during that time? Again, the State should not be
able to lie in wait for this long then swoop in to take a windfall after the
spouse made improvements, or, like this case, took over purchase payments.
(This argument is discussed at length in Appellant’s Brief at 49-51.)
Next, there is no justifiable reason to treat unmarried-joint-owners
differently. Why treat a wife differently than a fiancé, girlfriend, sister,
mother, aunt, grandmother, best friend, business partner, bank, or other
lienholder? Why draw a line at the spouse?
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Again, the family code does not justify treating spouses differently
because it—does not create liability. Courts had no reason to premise its rule
on a family code section that does not even create liability. Even if this so-
called “liability” exists, the family code does not justify denying spouses the
use of an available statutory defense to that “liability.”
When no defense exists, co-owned property is as forfeitable as a
community property. Why exclude spouses when a defense actually exists?
And, why does the family code support that exclusion?
Finally, allowing spouses to use innocent owner defenses would not
make obtaining forfeiture against spouses virtually impossible. (State’s Br.
18-19.) In fact, the defense would not be as strong for spouses as it is for
other claimants. Banks, business lien-holders, and third-party lenders could
mount stronger defenses than spouses because they are not as likely as
spouses to be closely affiliated with the wrongdoer. See Hopkins v. State,
2003 Tex. App. LEXIS 1448, at *1 (Tex. App.—Fort Worth Feb. 13, 2003,
not pet.) (mem. op.) (discussing situation where fiancé had no reasonable
lack of knowledge).
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D. THE STATE STARTS AND ENDS WITH FACTS ENTIRELY ABSENT FROM THE
RECORD, AND COMPLETELY IGNORES PROBLEMS WITH ITS MOTION AND
THE TRIAL COURT’S JUDGMENT.
1. No evidence of drug conviction, probation, or amount of drugs
exists to analyze probable cause, contraband, or Eighth
Amendment law.
The record does not show Mr. Alcorn was on probation for anything;
pleaded guilty to anything; pleaded true at any probation revocation; or any
conviction or plea bargain or revocation was because he possessed illegal
drugs. None of this was mentioned until on appeal. (State’s Br. at 1, 17, 21.)
Thus, the State’s analysis distinguishing Eighth Amendment27
disproportionality cases from this case also fails because it was based on the
existences of drug amounts and convictions and probation revocations that
do not exist. (State’s Br. at 19-21.) Furthermore, the State focused only on
what Mr. Alcorn did, when it also has to focus on Mrs. Alcorn’s interests,
payments, culpability, circumstances, and history. United States v. Ferro,
681 F.3d 1105, 1115 (9th Cir. 2012) (trial court should not “focus solely on
[husband] 's conduct and … fail to consider owner [wife]'s culpability”
(discussing von Hofe v. United States, 492 F.3d 175, 178-79 (2nd Cir. 2007)
(finding wife’s interest could not be forfeited because she had less
culpability than husband, whose interest in the property was forfeited);
27
U.S. CONST. amend. VIII, XIV; and Tex. CONST. art. I, §13.
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Ferro, 681 F.3d at 1117 (the Constitution requires consideration of the
culpability of the property's owner).
However, even a single conviction does not prove or justify forfeiture
of two vehicles.
2. Mrs. Alcorn did not plead affirmative defenses in bad faith.
The record fails to show where the trial court “found that Mrs. Alcorn
was not pleading affirmative defenses in good faith.” (State’s Br. at 4-5.)
3. The State avoids why we are here.
The State has avoided the fact that its motion for summary judgment
wholly revolved around Mrs. Alcorn’s inability to assert the innocent owner
defense of Article 59.02(c), and nothing else. Yet, the summary judgment
grants full and final relief on all issues, claims, defenses, and even on the
issue of no standing to contest anything.
Spouses may at least resist forfeitures by attacking seizure, proof of
contraband, forfeiture under Eighth Amendment law, and service under the
statute of limitations.
For that reason, if nothing else, the case should be reversed.
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III. PRAYER
Mrs. Alcorn is praying this Honorable Court reverse and render
judgment that the statute of limitations bars forfeiture. Alternatively, Mrs.
Alcorn prays this Honorable Court reverse and remand on all issues.
Respectfully submitted,
_________________________
Benton Ross Watson
120 E. 1st Street / Box 1000
Cameron, Texas 76520
Tel: 1 (254) 307-8181
Fax: 1 (254) 231-0212
ross@texastopdefense.com
State Bar No. 24077591
Attorney for Appellant, LaToya Alcorn
CERTIFICATE OF SERVICE
This is to certify that on May 12, 2015, a true and correct copy of the above
and foregoing document was served on the Milam County District
Attorney’s Office by electronic transmission at jjohnson@milamcounty.net,
and electronic transmission was reported as complete.
_______________________
Benton Ross Watson
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CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation of TEX. R. APP.
P. 9.4(i) because this brief contains 7,213 words, excluding the parts
of the brief exempted by TEX. R. APP. P. 9.4(i)(1).
2. This brief complies with the typeface requirements and the type style
requirements of TEX. R. APP. P. 9.4(e) because this brief has been
produced on a computer in conventional typeface using WordPerfect
X6 in Times New Roman 14 point font in the body of the brief and
Times New Roman 12 point font in the footnotes.
3. The electronic file is virus and malware free.
____________________________________________
(Signature of filing party)
____________________________________________
Benton Ross Watson
(Printed name)
____________________________________________
Solo Practitioner
(Firm)
____________________________________________
May 12, 2015
(Date)
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BENTON ROSS WATSON
ATTORNEY AT LAW
P.O. Box 1000 / 120 E. 1st Street
Cameron, TX. 76520
Tel: (254) 307-8181
Fax: (254) 231-0212
______________________________________________________________________________
May 12, 2015
Jeffrey D. Kyle
Clerk, Third Court of Appeals
P.O. Box 12547
Austin, Texas 78711-2547
RE: Court of Appeals Number: 03-14-00704-CV
Trial Court Case Number: CV36,279
Style: 2004 Dodge Ram 1500 TX LP #CPL1988 and 2000 Buick TX…
v.
The State of Texas
Dear Mr. Kyle:
I am filing my reply brief again. Apparently, some sort of technical problem
removed all internal links and bookmarks, and caused error messages within the brief.
If there are any problems or concerns, please let me know. Thank you for your
patience, assistance, and immediate notification.
Best wishes,
Benton Ross Watson