Fifty-Six Thousand, Seven Hundred Dollars in United States Currency v. State

OPINION

SCHULTE, Justice.

This is an appeal from a judgment of forfeiture, the court below finding the sum of $56,700.00 in United States currency to *67be subject to forfeiture under Article 4476-15 Tex.Rev.Civ.Stat.Ann. (Controlled Substances Act) (Vernon Supp.1986). We affirm.

Pursuant to a search warrant, on June 29, 1984, the following items were seized in the apartment of Harry Farah at the places therein indicated and were received in evidence:

In the office portion of the apartment: in a desk drawer:
White envelope containing marihuana.
Vial with cocaine residue.
Brown wood box containing gold plated scale kit.
In the kitchen of the apartment:
Two syringes.
In the vault-like walk-in closet-bathroom combination with a dead-bolted steel door:
In the bathroom portion in the safe inside a cabinet next to the sink:
Vial with over three grams of cocaine.
Money totalling $56,700.00.
In the bathroom portion in a locked drawer:
Student I.D. card from Texas A & M bearing name of Harry Farah.
Two statements to Harry M. Farah from Merrill-Lynch.
Jar with cocaine.
Bags containing vials.
Grinder used for blending, with cocaine residue.
Powder similar to Anositol powder.
Vial with custom top and cocaine spoon with cocaine residue.
Two amber vials with residue.
Seven vials with cocaine residue.
Snorting tubes with cocaine residue.
Pill bottle with cocaine residue.
Paraphernalia — mirror.
Amber pill bottles.
Paper fold with cocaine residue.
Two zip-lock baggies with cocaine residue.
In the bathroom portion either in a locked drawer or in an adjacent cabinet:
Jar with cocaine
Another jar with cocaine.
Cutting agent, Anositol powder.
Plastic vial with cocaine residue.
In the closet portion of the vault inside a suitcase on a shelf:
A name tag from Dallas Market Center bearing name of Harry Farah.
Kit with box, scales, etc., as used by distributors or dealers of cocaine.
Grinder with quantity of cocaine on it.
Box containing thirteen Dilaudid pills — pharmaceutical type of heroin.
Zip-lock baggie with quantity of cocaine.
White bottle containing marihuana.
Paper folds as used for sniffing or sale of cocaine with residue.
Glass vial with cocaine residue.
A magazine article from Esquire entitled “Cocaine, You Can Bank On It.”
Two baggies containing marihuana.
Sixteen amber glass vials and plastic, some with residue.
300-400 one gram vials without residue — not used.
Glass bottle with four Dilaudid pills.
Bottle with contents marked “Black
Bombers, Black Mollys, Heavy Driving Speed.”
Amber bottle with pills.
In apartment — specific place not clear: Two funnels with cocaine residue.
Two containers of Anositol cutting powder.

Mike Tibuni, a lieutenant in the Narcotics Division who participated in the search, testified without objection that he located approximately a thousand photographs in Farah’s apartment. The photographs were not offered or received in evidence. He said he inspected about twenty percent of the photographs. A number of them appeared to have been taken in the apartment, mainly in the bedroom. Some depicted marihuana and cocaine usage involving young men, “young boys involved with narcotics. ...”

Mr. Rudd, a supervising chemist with the Texas Department of Public Safety, testi*68fied. He stated that the substance in the glass jar, which was found in the safe with the money, was determined to be cocaine with a net weight of 3.187 grams. The substance in the jar, located in the bathroom, contained cocaine with a net weight of 17.065 grams. Another jar, found in the bathroom, contained cocaine in the amount of 20.129 grams. The vials in the bag, found in the bathroom, in two separate samplings, contained .82 grams and 1.881 grams of cocaine, respectively. He testified that the 20.129 gram sample was ninety-seven percent pure as was the .82 gram sample. The purity of the 1.881 gram sample was thirty-six percent. A vial found in the bathroom proved cocaine content in the amount of .1555 grams. Other exhibits testified to contained only traces of cocaine. In regard to the amber pill bottles located in the bathroom, the content was determined to be pharmaceutical pills and tablets including Oxycodone, Methaqual-one, 'methylphenidate, amphetamine, Mep-rodine, phenmetrazine Diazepam and methamphetamine. The white envelope found in the desk drawer in the office was determined to contain 10.59 grams of marihuana. The grinder, found in the suitcase, contained cocaine powder weighing .29 grams, thirty-one percent pure. The pills in the box, found in the suitcase, were analyzed as Dilaudid. The zip-lock baggie, located in the suitcase, contained .404 grams cocaine, ninety-six percent pure. The white bottle, located in the suitcase, contained 12.56 grams of marihuana. A glass bottle, located in the suitcase, contained Dilaudid. The amber pill bottle, located in the suitcase, contained phenmetra-zine.

In summary, Rudd calculated that the cocaine found could have been cut or diluted to “respectable street cocaine” to produce between 80 and 85 grams, assuming twenty-five percent purity. Detective Bog-dan testified to a gram being a popular sale amount with a gram bringing $150.00 and a half-gram $80.00 to $90.00.

That the paraphernalia seized was commonly used to prepare and package drugs for sale was established by the State’s evidence. A notice of seizure and intention to forfeit was filed July 13, 1984. Hearings were held on August 15 and 22, 1984. At the hearings, in defense, several people testified that Mr. Farah had contracted with them for goods and services to be used in remodeling a hotel and bar in Juarez, Mexico. Mr. Carranza Martinez testified that he was employed by the owner of the hotel/bar to act as an interpreter for him in dealing with Mr. Farah. He testified that from time to time the owner gave him cash to take to Mr. Farah to pay for the goods and services. He stated that the cash ultimately added up to about $58,000.00. One receipt for forty-eight $100 bills was introduced into evidence. The police testified that the money was seized in the same place as the drugs, but no actual purchase was observed. Mr. Farah did not testify.

Mr. Farah’s counsel objected to the introduction of all evidence seized in the search and all testimony that referred to the search. The court reserved ruling on the objection. A suppression hearing was being held on the warrant in another trial court. No ruling was ever made by this trial court. The trial court ordered the forfeiture of all funds seized. No requests for findings of fact or conclusions of law were filed.

The Appellant asserts that there was insufficient evidence or no evidence to support the forfeiture, that the court erred in receiving the evidence without ruling on the objection and that the search warrant is invalid under both state and federal law. We first consider the no evidence point and then the insufficiency point. Henderson v. State, 669 S.W.2d 385 (Tex.App.—San Antonio 1984, no writ). Since no findings of fact or conclusions of law were filed, we assume that all findings necessary to support the judgment were found. Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 276 (Tex.1979); Steward v. Jones, 633 S.W.2d 544, 545 (Tex.App.—Texarkana 1982, no writ). In determining a no evidence point, the court is to look at all supporting evidence and disregard all evi*69dence contrary to the judgment. Glover v. Texas General & Indemnity Company, 619 S.W.2d 400, 401 (Tex.1981); Behring International, Inc. v. Greater Houston Bank, 662 S.W.2d 642, 648 (Tex.App.—Houston [1st Dist.] 1983, no writ). In reviewing an insufficiency point, the court is to look at all the evidence. Carter, supra; Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

In his no evidence point, the Appellant asserts that this case contains even less circumstantial evidence than that utilized in Henderson v. State, supra. In Henderson, the court held that circumstantial evidence may be used to show a link between narcotics and money to demonstrate trafficking for forfeiture, but it also held that an inadequate link was shown in that case. Id. at 387. See also: Freeman v. Texas Compensation Insurance Co., 586 S.W.2d 172 (Tex.Civ.App.—Fort Worth 1979), affirmed as modified, 603 S.W.2d 186 (1980); Valles v. State, 646 S.W.2d 636 (Tex.App.—Houston [1st Dist.] 1983, no writ). In Henderson, the defendant was searched upon arrest and $903.00 was found in his pocket. The next day, drug paraphernalia was found in his apartment and several months later, his car was found with illegal drugs inside. The court held that the State failed to show any links between the money and the narcotics. In the present case, the money was found with the drugs and with equipment like that used in preparation of drugs for sale. The money was banded by a bank, thus contradicting the Appellant’s assertion that he had accumulated the money over a period of time. In a forfeiture proceeding, after a verified denial, a link must be established by a preponderance of the evidence. Tex.Rev.Civ.Stat.Ann. art. 4476-15 5.07(b) (Vernon Supp.1986). The State need only show that the funds were more probably than not derived from the sale of narcotics. Valles v. State, supra at 638. Due to the location of the drugs, manufacturing equipment, articles and money, there is some evidence of a link. Appellant’s Point of Error No. Two is overruled.

In his first point, the Appellant alleges the evidence is insufficient to support the forfeiture. Forfeiture statutes are to be strictly construed. Amrani-Khaldi v. State, 575 S.W.2d 667 (Tex.Civ.App.—Corpus Christi 1978, no writ). In Amrani-Khaldi, the court held that just showing a large amount of narcotics in one’s possession does not lead to an implication of transporting it for delivery. Id. at 670. The Appellant also asserts that the evidence in the present case is less than that shown in Henderson or Valles. In Valles, the defendant admitted he was a dealer and turned over the money to the police. Valles, supra at 637. No explanation other than drug sales was offered for che source of the funds. The court held that the State must show; more than mere sur mise or suspicion, but only need demonstrate that under the balance of probabilities the money was more probably than not derived from the sale of narcotics. Id. The State need not exclude all possibilities raised by the defendant. Mansell v. Hendrikson, 417 S.W.2d 908 (Tex.Civ.App.—Houston [1st Dist.] 1967, writ dism’d).

In the present case, the money, drugs, drug preparation equipment and an article on selling drugs were all found together in the Appellant’s apartment. The trial judge, as the trier of fact, is the sole judge of the credibility of the Appellant’s assertion that the money was obtained from other sources. Under the totality of the circumstances, there is sufficient evidence that more probably than not the funds were derived from the sale of narcotics. Point of Error No. One is overruled.

In his third point, which is asserted only as an alternative to an adverse ruling on points one and two, the Appellant asserts that the trial court erred in receiving evidence obtained from the search without ruling on the Appellant’s objection to the search and seizure. The Appellant pled an error in the search warrant and objected to the introduction of evidence of the search, but the trial court did not rule on the objection. Another court was holding a suppression hearing on the warrant, but we *70have no record of that court’s ruling. The exclusionary rule applies to forfeiture proceedings. Vance v. United States, 676 F.2d 183, 188 (5th Cir.1982); U.S. v. One 1979 Mercury Cougar XR7, 666 F.2d 228, 230 (5th Cir.1982); Jonas v. City of Atlanta, 647 F.2d 580, 588 (5th Cir.1981). However, the deterrent effect may be satisfied by other means, thereby leaving no reason to exclude the evidence in a civil action. Jonas, supra at 588.

The Appellant asserts error in the search warrant which would render the evidence inadmissible. He objected at the introduction of the evidence, but the trial court reserved ruling. The Appellant did not reurge his objection at the close of the evidence and the court never expressly ruled on the objection. The Appellant urges application of the Fifth Circuit ruling in U.S. v. Renteria, 625 F.2d 1279, 1282 (5th Cir.1980), that the court must rule on suppression matters. The Renteria court applied Federal Rules of Procedure, not Texas rules. There is no equivalent Texas rule to the Federal rule ordering decision; therefore, the Renteria holding is not applicable. To preserve error, Texas requires that a defendant obtain a precise ruling on an objection. De La Garza v. State, 650 S.W.2d 870 (Tex.App.—San Antonio 1983, PDRR); Mayfield v. State, 649 S.W.2d 361 (Tex.App.—Fort Worth 1983, PDRR); McMinn v. State, 640 S.W.2d 86 (Tex.App.—Fort Worth 1982, PDRR); Marek v. Baylor County, 430 S.W.2d 220 (Tex.Civ.App.—Eastland 1968, writ ref’d n.r.e.); Hicks v. Fredericks, 286 S.W.2d 315 (Tex.Civ.App.—Beaumont 1955, no writ). As for this hearing, the Appellant has waived any objection to the testimony by failing to request a suppression hearing, obtain a ruling, or request a continuance until after the suppression hearing in the other court. Point of Error No. Three is overruled.

In his fourth point, the Appellant asserts that even though he did not obtain a ruling since he was unable to fully develop his suppression objection, the Court should consider the evidence shown and rule the warrant invalid. At trial, the Appellant attempted to go behind the warrant, but was somewhat limited in the development of this evidence. The Appellant asserts that the warrant was deficient in its description of the place to be searched, that it does not state probable cause and that it contains “falsehoods intentionally and/or recklessly made which are material to probable cause.”

The Appellee responds that any possible error on these grounds was not preserved because a Franks motion was not made and that the warrant meets the Gates test. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The Appellee also responds that the argument of Appellant is conclusory and presents nothing for review. Phillips v. State, 511 S.W.2d 22 (Tex.Crim.App.1974). The Appellant’s argument is understandable and, contrary to Appellee’s assertion, the record is referred to in Appellant’s argument. Appellee’s conclusory contention is not supportable.

In order to go behind the warrant, there must be a substantial preliminary showing of false statements made knowingly, intentionally or with reckless disregard for the truth which are material to probable cause. Franks v. Delaware, supra, 438 U.S. at 155, 98 S.Ct. at 2676, 57 L.Ed.2d at 672. A motion for suppression must be made and it must contain allegations of perjury with supporting proof of the deliberate falsehoods pointing out the portions claimed to be false. There must be a statement of reasons, an affidavit or a sworn or reliable statement of other witnesses, and if these are not available their absence must be fully explained. The only falsehoods asserted may be those of the attesting officer, not the informant. Mere negligence or innocent mistakes are not enough. Id. 438 U.S. at 171, 98 S.Ct. at 2684, 57 L.Ed.2d at 682. In the present case, the Appellant’s answer does not contain any of this information; therefore, the trial court correctly limited the scope of the attack on the warrant and Subpoint C of Point of Error No. Four is overruled.

*71In Subpoints A and B, the Appellant asserts that the warrant is invalid on its face. A warrant must contain enough information for a magistrate to make an independent evaluation of the warrant and affidavit. Aguilar v. Texas, 378 U.S. 108, 112, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723, 727 (1964). In Subpoint A, the Appellant contends that the description of the place to be searched is inadequate under Article 18.04, Tex.Code Crim.Pro.Ann., and Haynes v. State, 475 S.W.2d 739 (Tex.Crim.App.1971). In Haynes, the warrant gave an address and then described how to get to it: “[t]he room to be searched is reached by going in the left front screen door, then by going in the first door on the right....” Id. at 740. A description is adequate if it is enough to apprise the police of where they are to conduct the search. Id. If the search is to be conducted in a multi-unit dwelling, the warrant must contain guidelines to apprise the searching officer of which particular unit is to be searched. Id. at 741. Morales v. State, 640 S.W.2d 273, 275 (Tex.Crim.App.1982). Technical discrepancies in search warrants do not automatically vitiate their validity. Bridges v. State, 574 S.W.2d 560, 562 (Tex.Crim.App.1978). Even if the numerical address is wrong, the warrant may still be valid if the description is adequate to direct the officer to the correct place. Olivas v. State, 631 S.W.2d 553, 556-557 (Tex.App.—El Paso 1982, no pet.).

In the present case, the affidavit contains an address with a description of the building and the location of the apartment. The affidavit has a diagram attached which shows how to get to the apartment. The officer was questioned extensively about the accuracy of the diagram. He fully explained its meaning. The affidavit also contains a statement that the suspected party is being billed for utilities at the listed address. Even were the address of the individual apartment wrong, the description is enough for an officer to understand which individual apartment is to be searched. Subpoint A is overruled.

In Subpoint B, the Appellant asserts that the affidavit fails to state probable cause because it relies on an informant without further corroboration. The Appellant relies on Stoddard v. State, 475 S.W.2d 744 (Tex.Crim.App.1972) and Dion v. State, 456 S.W.2d 97 (Tex.Crim.App.1970). In Dion, the affidavit did not assert the underlying circumstances used by the informant in obtaining his information, nor was there any assertion of the reliability of the informant. No corroboration is needed when the underlying circumstances are shown in the affidavit. In this case, the affidavit states that the informant had seen narcotics in the Appellant’s possession in the apartment within seventy-two hours and that the officer and informant had prior dealings which had proven true and accurate. Aguilar, supra, 378 U.S. at 728, 84 S.Ct. at 1514, 12 L.Ed.2d at 729; Dion, supra at 98. In Stoddard, the old two-prong test was used. The court found one part of the affidavit sufficient, but found that the second part failed to assert that the informant was credible and reliable. Stoddard, supra at 747-748. In the present case, the informant had been in the apartment within seventy-two hours, had seen cocaine in the Appellant’s possession, was familiar with cocaine, had been used as an informant before and was found to be accurate and reliable by the police. Looking at the totality of the circumstances in the present case, there is a probability that narcotics would be found in that particular place and that the informant was reliable. That is all that is presently required to be shown. Illinois v. Gates, supra. The affidavit adequately alleged the underlying circumstances and gave a sufficient description of the place to be searched. Point of Error No. Four is overruled.

In summary, it was the State’s burden to show that the money was derived from the sale, distribution or delivery of a controlled substance, by preponderance of the evidence, i.e., the greater weight of credible evidence, or in the language of Valles, supra, under the balance of probabilities, that the money was more probably than *72not so derived. The Appellant does not complain that the trial court did not admit the evidence before it. And, in fact, Appellant’s points acknowledge receipt of the evidence. The essence of Appellant’s attack is an asserted illegality of the search warrant which produced the evidence. In that regard, we have minutely found in response to Point of Error No. Four that there was no invalidity in'the search warrant. Therefore, an absence of a specific ruling on a motion or running objection concerning search and seizure, if error, is harmless.

Furthermore, in order to raise a question in an appellate court, the general rule is that the record must not only disclose that certain relief was sought, but also that the trial court made an adverse ruling thereon. A motion not acted upon furnishes no basis for a point of error. Harris v. Thompson Buick, G.M.A.C., Inc., 601 S.W.2d 757, 758 (Tex.Civ.App.—Tyler 1980, no writ); State v. Dikes, 625 S.W.2d 18 (Tex.App.—San Antonio 1981, no writ).

The trial court here expressly received in evidence all of the State’s proffered exhibits, including the Esquire article, at pages 180-181 of the statement of facts, with the exception of the money made the basis of the suit. That was received at page 186. The only qualification to the receipt of all of the evidence was the running suppression objection which we have already shown to be irrelevant. That the court considered the evidence so admitted is manifested by the court’s letter to counsel of record in the transcript. Furthermore, in this regard, the judgment recites in part:

[T]he court proceeded to hear testimony and considered numerous exhibits offered by both sides _ Having considered all of the evidence, exhibits ... finds ... Currency which is the subject of this suit, is subject to forfeiture....

Finally, this was a bench-tried civil case and the court below was the sole judge of the credibility of the witnesses and the weight to be given their testimony. It is well established that if no findings of fact are requested, as here, every presumption in favor of the trial court’s judgment shall be indulged. Rules 298, 299, Tex.R.Civ.P; Carter, supra; Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962); Quinn v. Dupree, 157 Tex. 441, 303 S.W.2d 769 (1957). Questions of fact are presumed found in support of the judgment. Lassiter v. Bliss, 559 S.W.2d 353 (Tex.1977). The reviewing court must view all evidence in the light most favorable to the trial court’s findings, disregarding all evidence to the contrary. Quinn, supra, 303 S.W.2d at 773.

The judgment is affirmed.