affirming forfeiture judgment where appellant was seen selling marihuana, and trunk of appellant’s car contained drug paraphernalia used for distributing and retailing marihuana
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- affirming forfeiture judgment where appellant was seen selling marihuana, and trunk of appellant’s car contained drug paraphernalia used for distributing and retailing marihuana
Written by the judges who cited it.
The opinion
BOWERS, Justice,
dissenting.
I respectfully dissent. I would grant appellant’s motion for rehearing.
The majority’s opinion is contrary to One 1985 Chevrolet v. The State of Texas, 852 S.W.2d 932 (Tex.1993). The State did not allege any felony; therefore, the guidelines enunciated in One 1985 Chevrolet are impossible to follow. If the State can not allege “which” felony was committed, how can the State assert that “a” felony was committed? This court is unable to make a determination as to whether or not “a” felony was completed.
Property that is contraband is subject to seizure and forfeiture. Tex.Code CRiM. PROC.Ann. art. 59.02 (Vernon Supp.1993). “Contraband” means property that is used or intended to be used in the commission of a felony. Id. art. 59.01(2)(A), (B).
Richardson was arrested for a misdemeanor offense, delivery of marihuana. He was charged with delivery, without remuneration, of less than one-fourth ounce of marihuana, also a misdemeanor. Richardson was not charged with any felony offense. The statute does not require a final conviction of an underlying felony. Id. art. 59.05(d) (emphasis added). I believe, however, that the State, at a minimum, should be required to present an indictment or some notice as to what the underlying felony is that justifies seizure of a person’s property.
The State must establish a link or nexus between the property to be forfeited and the statutorily defined criminal activity. Money of the U.S. $8,5000.00 v. State, 774 S.W.2d 788 (Tex.App.—Houston [14th Dist.] 1989, no writ). The State could not even establish a nexus between the proper *104 ty seized and the misdemeanor offense. The State has clearly failed to establish a nexus between the $22,922.00 seized and any felony.
Richardson had no drugs on his person or in his vehicle when he was arrested. The seizure of the currency occurred at Richardson’s place of business, a scrap metal business. There was no evidence as to whom the automobile or the narcotics paraphernalia found in the automobile belonged to and no charges were ever filed in connection with these items.
There is no evidence that the currency transferred in the observed misdemeanor marihuana delivery was among the currency seized. Although the dog alerted on the paper sack, there was no evidence as to whether the dog was alerting to the sack, all or part of the money, or both the sack and money.
The officers testified that they did not observe any scrap metal transactions during their limited periods of surveillance. They did testify, however, that they observed cars entering and leaving the business and did not know what kind of business was being transacted. Upon entering the building, the officers saw evidence associated with the scrap metal business.
The ziploc bags were never connected to Richardson or the currency seized. The residue of marihuana found in the bags was milligram amounts. Whether the bags were ever full, half full, or barely used for marihuana is unknown. One officer testified he did not have any facts that the money seized from Richardson came from illegal trafficking and narcotics.
The State’s attempted connection between the seized property and some unnamed felony is so weak as to be manifestly erroneous and unjust. The State showed, at the most, that Richardson delivered a small misdemeanor amount of marihuana and then later attempted to remove a sack of money from his premises. There is no nexus between this money and a felony.
I would reverse the trial court’s judgment.