Arnold v. State

JONES, Justice.

A 1988 Ford Bronco, registered in the name of Albert Arnold, was forfeited to the State as having been used in the illegal delivery of a controlled substance by Arnold’s brother-in-law, Jody Curry. See 1985 Tex.Gen.Laws, ch. 227, § 11, at 1123-24 [Tex.Rev.Civ.Stat. art. 4476-15, § 5.03(a), since repealed and codified in Tex.Code Cr.P.Ann. arts. 59.01-59.02 (Supp.1990) ]. The State sought forfeiture on the theory that Curry was the car’s true owner. The trial court agreed and ordered forfeiture. In an earlier unpublished opinion, we held there was no evidence to support the trial court’s finding. Our decision was based, at least in part, on our conclusion that certain statements by Curry claiming ownership of the car were merely self-serving claims and therefore not probative of actual ownership. On further appeal, the Supreme Court held that any self-serving content of such statements was outweighed by their potential damage to Curry’s own pecuniary and proprietary interest. State v. Arnold, 778 S.W.2d 68, 70 (Tex.1989). Holding the statements to be more than a scintilla of evidence of ownership in Curry, the Supreme Court remanded the cause to this Court “for consideration of the factual insufficiency points of error left unaddressed” by our earlier opinion. 778 S.W.2d at 70. In those points of error, Arnold challenges the sufficiency of the evidence to show (1) that Curry was the true owner of the Bronco, and (2) that the Bronco was used in the transportation, sale, receipt, possession, concealment, or delivery of a controlled substance. We will affirm the trial court’s judgment.

In early 1988 Arnold, Curry, and Curry’s sister, Leah, shared a house owned by Curry. Arnold and Curry had been acquainted since about 1979. Arnold knew that Curry was “heavy into drugs.” In May 1987 Curry had been arrested for possession of cocaine. As a result of the prosecution growing out of that arrest, Curry’s 1985 Ford Bronco was forfeited to the State in *307October 1987. On January 9, 1988, Curry was again arrested for drug possession.

Arnold and Leah had begun dating in March 1987 and decided to marry in the spring of 1988. Curry needed cash and had been trying to sell his house. Arnold and Leah agreed to buy it. Arnold borrowed $60,000 from a local bank and closed the house purchase on the morning of March 16, 1988. With a portion of the proceeds from the sale, Curry immediately obtained a cashier’s check, payable to himself, in the amount of $21,602.80. Arnold and Curry then went directly to a Ford dealership, where Arnold had already paid $500 to hold a 1988 Ford Bronco. Curry indorsed the check to the dealership as the balance on the purchase of the 1988 Bronco. Title to the Bronco was taken in Arnold’s name. At the time of the purchase, four vehicles belonging to Arnold and Leah were kept at the house; Curry owned no car. That same evening, March 16, 1988, Arnold and Leah were married.

Twenty-seven days later, on April 12, while driving the Bronco, Curry was arrested by Officer Dorsey of the Temple Police Department for driving while his license was suspended. With Curry was a friend, Dede Remington. An inventory search of the Bronco revealed small amounts of methamphetamine and marihuana, along with two syringes, a spoon, and a plastic bag containing the odor of methamphetamine. No criminal charges were brought against Curry or Remington for drug possession, but the State instituted this forfeiture action.

In point of error three, Arnold asserts that the evidence was factually insufficient to support the trial court’s finding that Curry was the true owner of the Bronco. With the Supreme Court’s holding herein that the evidence of Curry’s ownership is not legally insufficient, any presumption of Arnold’s sole ownership created by the certificate of title vanished. Minter v. Joplin, 535 S.W.2d 737 (Tex.Civ.App.1976, no writ). Thus, we are left merely to weigh and consider all the evidence and determine whether the trial court’s conclusion that Curry was the true owner is “so against the great weight and preponderance of the evidence as to be manifestly unjust.” In re King’s Estate, 244 S.W.2d 660, 661 (Tex.1951); see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (“so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust”).

Only Arnold testified for the defense. He testified that Curry gave the Bronco to him as a wedding present: “[H]e wanted to do something for me because I had helped him and he thought it would be a nice wedding gift.” On the other side is the following evidence:

(1) Arnold contributed only $500 toward the purchase price of the car; the rest, more than $21,600, came from Curry at a time when Curry “needed cash”; Curry and Arnold went to the car dealership together, cashier’s check in hand, and Curry gave the check to the dealer;

(2) At the time of the alleged gift, Curry did not own any car, while Arnold and his new wife owned four cars;

(3) Curry had previously had a 1985 Bronco seized and forfeited under the Controlled Substances Act; Arnold was aware of that seizure;

(4) Curry, Arnold, and Leah all lived together, both before and after the purchase; Arnold knew Curry was “heavy into drugs”;

(5) One of Curry’s friends, Wes Tyson, testified that Curry told him the Bronco was his, but was registered in Arnold’s name “because he didn’t want the police to get it like his other Bronco”;

(6) Another friend of Curry’s, Irene Dehol-loz, testified that Curry told her the Bronco was his;

(7) A third friend of Curry’s, Dede Remington, testified that before the purchase Curry had taken her to see the Bronco while it was still at the dealership, stating that “he was going to buy it” as soon as he got the money;

(8) The arresting officer testified that after the Bronco was seized, Curry stated that he owned it;

*308(9) Curry had a set of keys to the Bronco; in the twenty-seven days between its purchase and seizure, Curry drove it 90% of the time and kept some of his personal documents in it.

In its opinion reversing our earlier judgment, the Supreme Court made it clear that Curry’s statements to others regarding his ownership of the Bronco carried substantial weight:

If Curry was the true owner, his assertions to that effect were contrary to his pecuniary interest. They tended to expose him to the possibility of losing a new, expensive vehicle. The same statements subjected him to civil liability under the forfeiture provisions of the Controlled Substances Act, Tex.Rev.Civ.Stat. Ann. art. 4476-15 (Vernon Supp.1989). Curry would not make statements so contrary to his interest unless they were true.

778 S.W.2d at 69-70 (emphasis added). Arnold's testimony that the Bronco belonged to him was not conclusive on the issue, and the trial court, as fact-finder, was entitled to disbelieve all or any part of it. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986); Garcia v. Dependable Shell Core Machines, Inc., 783 S.W.2d 246, 248 (Tex.App.1989, no writ).

From the evidence in this record, it is entirely reasonable to infer that the parties intended and agreed that Curry would be the sole “equitable” or “beneficial” owner of the Bronco. Accordingly, we hold that the foregoing evidence and the reasonable inferences that may be drawn therefrom are more than enough to uphold the trial court’s finding of Curry’s ownership against a factual sufficiency challenge.

However, we conclude that it is not necessary even to go that far. It is at least equally reasonable to infer that both Arnold and Curry were to have an ownership interest in the car. After all, the evidence indicates that Arnold did contribute $500 to the purchase price. In order for forfeiture to be upheld, it is not necessary that Curry be shown to be the sole owner; it is sufficient that he be an owner. Indeed, the current version of the forfeiture statute expressly defines “owner” to mean “a person who claims an equitable or legal ownership interest in property.” Tex.Code Cr. P.Ann. art. 59.01(5) (Supp.1990) (emphasis added). Although not expressly defined in the now-repealed version under which this suit was tried, logic compels the conclusion that the term “owner” cannot be construed to require sole ownership. A contrary interpretation would undercut the statute’s purpose and create a loophole big enough to drive a Ford Bronco through.

In this connection, we note that the trial court’s forfeiture order expressly found that Arnold owned no interest whatsoever in the Bronco and that Curry was “the owner.” As pointed out by the dissent, the general rule is that “if the case is tried before the court without a jury, and the court makes express findings of fact on which he bases his judgment, a reviewing court will not consider other controverted fact issues not considered by the trial court to uphold such judgment.” Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, 84 (1939). In the unique circumstances of the present case, however, where the trial court expressly found Curry to be the owner of the Bronco, we would, if such were necessary to our decision, have no difficulty indulging the presumption that the trial court also impliedly found Curry to be an owner. Point of error three is overruled.

In point of error two, Arnold asserts that the evidence was factually insufficient to satisfy the requirements of the now-repealed version of article 4476-15, § 5.03(a):

The following are subject to forfeiture as authorized by this subchapter:
* * * * * *
(5) any conveyance, including ... vehicles, ... that is used or intended for use to transport or in any manner facilitate the transportation, sale, receipt, possession, concealment, or delivery of [a controlled substance], provided that no conveyance used by any other person shall be forfeited under this subchapter *309unless the owner or other person in charge of the conveyance is a consenting party or privy to an offense under this

Act that is punishable as a felony.... 1985 Tex.Gen.Laws, ch. 227, § 11, at 1123-24. The Texas Supreme Court has interpreted the predecessor of this statute to permit forfeiture only when “the offense is one involving some aspect of a drug transaction,” rather than mere possession by an occupant. See One 1980 Pontiac v. State, 707 S.W.2d 881, 883 (Tex.1986).

In the present case, Dede Remington testified that she had known Curry for a “long time,” and that they had “done drugs” together over a period of about six months. On April 12,1988, she drove from the Austin area to Temple, carrying with her a plastic bag containing methamphetamine. At some point in the day, she contacted Curry, and they agreed to meet at a local bar, known as Gregory’s, to visit. During the course of their conversation at the bar, they decided to go to Wes Tyson’s house so Tyson and Curry could use some of her methamphetamine. Remington testified as follows:

Q: Dede, Jody Curry knew why you left Gregory’s and went to Wes Tyson’s, didn’t he?
A: Yes, sir.
Q: Y’all had agreed to go do some dope?
A: Yes, sir.
Q: And he knew that you had the dope?
A: Yes, sir.
Q: And when you got to Wes Tyson’s you gave him the dope?
A: Yes, sir.

She later testified that when she and Curry left Tyson’s house she had no remaining methamphetamine because “Wes bought the last of it.” From the foregoing a reasonable inference may be drawn that the purpose of the trip from the bar to Tyson’s house was, at least in part, to deliver to Tyson some or all of the methamphetamine in Remington’s possession. We conclude that a finding that the Bronco was used to facilitate a “drug transaction” is not so against the great weight and preponderance of the evidence as to be manifestly unjust. Point of error two is overruled.

The judgment of the trial court is affirmed.