Ahmad v. State

615 S.W.3d 496

Aetezaz AHMAD, Appellant

v.The STATE of Texas, Appellee

NO. 01-19-00569-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued November 19, 2020

Sara Richey, 3801 Kirby Drive, Ste. 344, Houston, Texas 77098, Justin Keiter, 405 Main St., Ste. 1120, Houston, Texas 77002, for Appellant.

Jeri Yenne, Brazoria County, Criminal District Attorney, Trey D. Picard, 111 East Locust St., Ste. 408A, Angleton, Texas 77515, for Appellee.

Panel consists of Justices Keyes, Kelly, and Landau.

Sarah Beth Landau, Justice

Background

In this civil forfeiture case, Brazoria County Narcotics Task Force officers seized $41,239 in cash, 103 complete gambling machines, and other items during the execution of a search warrant on Winner One Eleven Game Room in Alvin, Texas. The State first charged Aetezaz Ahmad with gambling promotion, keeping a gambling place, and possession of a gambling device, equipment, or paraphernalia. See TEX. PENAL CODE §§ 47.03, 47.04, 47.06. These offenses are Class A misdemeanors. See id. The State began a civil forfeiture action under article 59.01(2)(B)(xi) of the Texas Code of Criminal Procedure and filed an amended notice of seizure and intended forfeiture. TEX. CODE CRIM. PROC. art. 59.01(2)(B)(xi) ; see TEX. PENAL CODE § 71.02(a)(2). In its pleadings, the State alleged that the seized property was contraband "used in the commission of organized criminal activity" as defined in "Chapter 71 of the Texas Penal Code" because Ahmad was charged with offenses "punishable as ... Class A misdemeanor[s]." Later, the State reduced the gambling-promotion and keeping-a-gambling-place charges to two counts of gambling—a Class C misdemeanor. See TEX. PENAL CODE §§ 12.23, 47.02(a), (d). Ahmad pleaded guilty.

After Ahmad's conviction, the State moved for summary judgment in the 149th District Court of Brazoria County and attached an investigating officer's affidavit and documents filed in Ahmad's criminal proceeding at the time of his plea. Ahmad objected and moved to strike the State's summary-judgment evidence—Officer J. Edwards's affidavit—as hearsay. Ahmad's objections and motion were overruled by operation of law. The trial court granted the State's summary-judgment motion and ordered the seized money and property forfeited to the "Brazoria County Narcotics Task Force ... in accordance with article 59.06 of the Texas Code of Criminal Procedure."

On appeal, Ahmad raises four issues. First, Ahmad contends that the trial court lacked jurisdiction over the civil forfeiture action while the criminal prosecution was pending. Second, he contends that the trial court erroneously overruled his objections to the State's summary-judgment evidence. Third, he asserts that there was insufficient evidence to support summary judgment. Fourth, he asserts that the forfeiture order violated his constitutional rights against excessive fines and fees under Texas law and the Eighth Amendment of the United States Constitution.

Subject Matter Jurisdiction

In his first issue, Ahmad argues that the trial court lacked subject matter jurisdiction to order the forfeiture under article 18.18 of the Texas Code of Criminal Procedure. Ahmad contends that the State failed to show, as required under article 18.18, that there was no prosecution or conviction following the seizure. We note, however, that Ahmad does not argue that the trial court lacked subject matter jurisdiction under Chapter 59, which was the basis of the forfeiture action here.

A. Standard of review

"Subject-matter jurisdiction is essential to a court's power to decide a case." City of Hous. v. Rhule , 417 S.W.3d 440, 442 (Tex. 2013). Subject matter jurisdiction can be raised at any time. Alfonso v. Skadden , 251 S.W.3d 52, 55 (Tex. 2008) (per curiam). Subject matter jurisdiction is a question of law, which we review de novo. Meyers v. JDC/Firethorne, Ltd. , 548 S.W.3d 477, 486 (Tex. 2018).

B. Applicable law

The State must follow specific statutory procedures to legally seize property from someone. First, the State must "obtain a search warrant based on a sworn affidavit averring ‘sufficient facts ... to satisfy the issuing magistrate that probable cause does in fact exist for its issuance.’ " Hardy v. State , 102 S.W.3d 123, 127 (Tex. 2003) (quoting TEX. CODE CRIM. PROC. art. 18.01(b) ). After the magistrate issues a search warrant, the State executes the warrant by conducting a search and seizure of the property. Id. (citing TEX. CODE CRIM. PROC. arts. 18.06, 18.09 ). The magistrate must issue a written notice ordering the "person found in possession of the alleged gambling device or equipment, ... gambling paraphernalia, [or] gambling proceeds," to personally appear and "show cause why the property seized should not be destroyed or the proceeds forfeited." TEX. CODE CRIM. PROC. art 18.18(b). After the show cause hearing, the magistrate must determine the nature of gambling property or proceeds and the person's interest in that property. Id. art. 18.18(f). Unless the person proves by a preponderance of the evidence that the evidence is not gambling property or proceeds and that he or she is entitled to possession, the magistrate must "dispose of the property or proceeds." Id.

The State may file a civil forfeiture action under Chapter 59 or article 18.18(a) or (b) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art. 59.10 ; see Burnom v. State , 55 S.W.3d 752, 754 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Chapter 59 allows the forfeiture of property used in organized criminal activity and its proceeds. Id. art. 59.01(2)(B)(xi). Under Chapter 59, the State must initiate a civil forfeiture action within 30 days of the seizure and file a notice of the seizure and intended forfeiture "with the clerk of the district court in the county in which the seizure is made." TEX. CODE CRIM. PROC. art. 59.04(a) – (b).

Alternatively, property is also subject to forfeiture under article 18.18 when the seized property consists of gambling devices, gambling equipment, gambling paraphernalia, or gambling proceeds. See TEX. CODE CRIM. PROC. art. 18.18. Subsection (a) requires a "final conviction of a person for possession of a gambling device or equipment, altered gambling equipment, or gambling paraphernalia." Id. art. 18.18(a). Subsection (b), on the other hand, authorizes forfeiture when the person found in possession of the property has not been convicted or prosecuted following a seizure. Id. art. 18.18(b).

C. Analysis

To show that the trial court lacked subject matter justification over the civil forfeiture action, Ahmad relies on Craig v. State , 707 S.W.2d 164 (Tex. App.—Houston [1st Dist.] 1986, no writ). In Craig , officers discovered gambling equipment, money and checks during an inventory search of the appellant's vehicle during a traffic stop. Id. at 164. The police seized some of the items, and the State filed a civil forfeiture action under article 18.18. Id. The appellant was also indicted in Galveston County. Id. The trial court entered a judgment of forfeiture against the appellant. Id. On appeal, the appellant argued that the trial court lacked authority to order forfeiture under article 18.18. Id. at 164-65. A panel of this Court held that trial court lacked authority to enter a judgment of forfeiture under article 18.18 because the State failed to prove that there was no prosecution or conviction following seizure. Id. at 165–66. The undisputed evidence showed that there was a criminal proceeding pending at the time the trial court ordered forfeiture. Id.

Here, the State brought forfeiture proceedings against Ahmad under Chapter 59, not under article 18.18. See TEX. CODE CRIM. PROC. art. 59.10. Chapter 59 does not require the State to prove no prosecution or conviction following seizure. See TEX. CODE CRIM. PROC. art. 59.04. Thus, Craig is inapplicable to the civil forfeiture action in this case.

Rule 38.1(f) of the Texas Rules of Appellate Procedure requires an appellant's brief to "state concisely all issues or points presented for review." TEX. R. APP. 38.1(f). Ahmad acknowledges that the State may bring a civil forfeiture action under either Chapter 59 or article 18.18. See TEX. CODE PROC. art. 59.10. Yet, his summary-judgment briefing in the trial court and on appeal addresses only his jurisdictional challenge under article 18.18, not under Chapter 59. See TEX. R. CIV. P. 166a(c) ; see also TEX. R. APP. 38.1(i) (appellate briefs "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"). References in an appellate brief to legal authority that have nothing to do with the issue to be decided do not meet the requirements of the Rules of Appellate Procedure. See Republic Underwriters Ins. Co. v. Mex-Tex, Inc. , 150 S.W.3d 423, 427 (Tex. 2004) ; see also Amrhein v. Bollinger , 593 S.W.3d 398, 402 (Tex. App.—Dallas 2019, pet. denied). Ahmad has therefore waived his challenge to the trial court's authority over the forfeiture proceedings by failing to brief it on appeal. Kouba v. Northland Indus., Inc. , 583 S.W.3d 857, 869 (Tex. App.—Houston [1st Dist.] 2019, pet. granted).

We overrule Ahmad's first issue.

Evidentiary Challenge

In his second issue, Ahmad contends that the trial court erred by overruling his objections to the State's summary-judgment evidence based on "inadmissible hearsay and hearsay within hearsay." He argues that the affidavit of Officer Edwards "presents facts that are not based on Edwards's own personal knowledge." In response, the State asserts that Ahmad failed to preserve error for appeal. We agree.

A. Standard of review

We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. See Whirlpool Corp. v. Camacho , 298 S.W.3d 631, 638 (Tex. 2009). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. In re Nat'l Lloyds Ins. , 507 S.W.3d 219, 226 (Tex. 2016) (orig....