.39 Acres, .748 Acres, and .5 Acres (With Improvements) in the J. Johnson Survey, Marion County, Texas, and a .22 Caliber Ruger Semi-Automatic Pistol v. State

Citation: Not availableDocket: 06-07-00101-CV

Court: Court of Appeals of Texas; January 15, 2008; Texas; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Henry Doke appeals a judgment from a bench trial concerning the forfeiture of three tracts of land (0.39 acres, 748 acres, and 0.5 acres) and a .22 caliber Ruger semi-automatic pistol under Chapter 59 of the Texas Code of Criminal Procedure. The trial revealed that the property, known as the "Dew Drop Inn," appeared to attract individuals with criminal records, although the exact nature of its business operations was unclear. Doke raises five issues on appeal regarding evidence sufficiency for the State's forfeiture claims and his defense:

1. The acquittal of Lamarcus Morton creates a presumption of nonforfeiture under Article 59.05, which the State failed to rebut.
2. There is insufficient evidence to prove that Doke is not an "innocent owner" of the Dew Drop Inn as per Article 59.02(h)(1)(C).
3. The evidence does not factually support that the realty is subject to forfeiture.
4. Forfeiture should pertain only to the tract containing the domed building where drugs were found, not the other two parcels.
5. There is no evidence that the described realty is the same property used in the commission of a felony warranting forfeiture.

During the trial, Ricky Blackburn from the Ark-La-Tex Narcotics Task Force testified about prior discussions with Doke regarding drug activity at the Dew Drop Inn, including observations of drug paraphernalia. Doke insisted on videotaping the second interview with law enforcement, during which Terrance "Toot" Banks, an individual with a criminal history, was present and claimed to manage the Dew Drop Inn.

On June 17, 2005, a confidential informant for the Ark-La-Tex Narcotics Task Force purchased cocaine from Banks at the Dew Drop Inn. Following this, a search warrant was obtained, leading to a drug raid on June 30, 2005, where cocaine was discovered dissolved in a liquid inside a microwave in a geodesic dome structure. Rathel Doddy was found in possession of rock cocaine in a nearby building, and drug paraphernalia was scattered throughout the property, including in a "smoke house" structure, which had items typical of drug use. Four individuals—Lamarcus Morton, Frederick Hopkins, Jeremy Byrd, and Doddy—were arrested for possession, with Morton later acquitted and charges against the others dismissed.

Prior to the raid, property owner Doke used month-to-month oral rental agreements, having no written leases, but instituted a written lease policy afterward to prohibit unlawful activities. Doke had rented to Gloria Robbins and Charles Melvin Douglas, both with prior drug convictions, and at the time of the raid, the property was rented to Arthur C. Gregory, Morton's father. Doke claimed he was unaware of any drug activities on the premises and would not have tolerated them. 

The State called several law enforcement witnesses to testify about the Dew Drop Inn's reputation as a drug hangout, past communications with Doke regarding drug use rumors, and the character of its tenants. Allegations were made by Doke about damages to property during the raid. Additionally, evidence was presented of a videotaped drug transaction at The Arcade, where Doke was seen present. Testimony also described the "smoke house," which had features indicative of drug use, and the pervasive debris associated with drug consumption around the Dew Drop Inn.

Findings of fact and conclusions of law by the trial court have the same authority as jury responses. The trial court's findings can be reviewed for legal and factual sufficiency using the same standards applied to jury findings. As the sole trier of fact, the trial court can resolve conflicts in evidence, and its determinations regarding witness credibility are afforded great deference.

Two closely related issues must be resolved: the forfeitability of assets and the applicability of the innocent owner defense. In civil forfeiture actions, the State bears the burden of proving by a preponderance of evidence that property is subject to forfeiture. A final conviction is not required for forfeiture; however, an acquittal creates a presumption that the property is nonforfeitable, which can be rebutted by demonstrating that the owner knew or should have known the property was contraband. "Contraband" includes various types of property used in the commission of certain felonies.

In this case, there was an acquittal and dismissal of charges, which raises a presumption of nonforfeitability under the relevant statute. The State must prove that the owner either knew or should have known the property was contraband, although the statute does not specify the level of proof required to rebut the presumption.

Regarding the innocent owner defense, the statute stipulates that property cannot be forfeited if the owner was not involved in the offense and the contraband was used without their effective consent. The burden of proof rests on the owner to establish this defense by a preponderance of the evidence.

Forfeitures under Chapter 59 of the Texas Code of Criminal Procedure typically involve criminal charges against the property owner; however, in the case of Doke and the Dew Drop Inn, Doke was not charged with any crime and was not present during the drug raid. Doke, as the owner/landlord, argued that there was insufficient evidence to prove he was not an innocent owner, claiming he provided evidence supporting his innocent status. The forfeitability of the contraband and the innocent owner defense hinge on Doke's knowledge of illegal activities on the property. Evidence revealed that law enforcement had warned Doke about ongoing drug activity, which he ignored, despite having the ability to terminate month-to-month leases with tenants involved in such activities. His inaction led to a comparison with a hotel owner who would not escape liability for obvious prostitution occurring on their property. The court found that Doke either knew or should have known about the illegal activities. His past whistle-blowing on unrelated drug activities did not demonstrate a genuine effort to curb the issues at the Dew Drop Inn, suggesting self-interest rather than civic duty. The legal standards for reviewing the sufficiency of evidence in nonjury trials apply, indicating that a judgment supported by sufficient evidence cannot be overturned on appeal.

A court of appeals evaluates whether disputed evidence is such that a reasonable fact-finder could have arrived at a different conclusion. If the evidence is so significant that a reasonable fact-finder could not have formed a firm belief or conviction in support of a finding, it is deemed factually insufficient. When contesting the factual sufficiency of an adverse finding, the appealing party must show that the evidence does not support that finding. Doke failed to demonstrate this, as sufficient evidence indicated that the Dew Drop Inn had become contraband due to its involvement in criminal activities, and that Doke was aware of such activities.

Doke contended that only the parcel of land where drugs were found should be forfeited, arguing that the other two parcels should not be included. However, evidence presented during the trial treated the three parcels as one entity, the Dew Drop Inn. Doke himself testified that the parcels constituted a single property, and no differentiation was made in the trial pleadings or evidence regarding their separability. Since Doke did not identify which tract contained the dome building or prove that the parcels were severable, he waived this claim. Therefore, the court overruled Doke's point of error regarding the forfeiture of only part of the premises. Additionally, the resolution of Doke's challenges may have limited impact for the State.

The forfeiture is valid concerning the property specified in the order; however, there are concerns about the adequacy of the property descriptions provided. The forfeiture references the Dew Drop Inn and several parcels of land, each described by acreage and legal references to documents in Marion County, Texas. Despite these references, the descriptions fail to specify the actual documents, raising questions about their sufficiency. According to Texas law, particularly as outlined in Morrow v. Shotwell, a property description must enable identification of the land with reasonable certainty, either on its own or by referencing existing documents. While there is no Texas case law directly addressing property description sufficiency in forfeiture actions under Chapter 59 of the Texas Code of Criminal Procedure, precedents from eminent domain and tax lien foreclosure cases emphasize the necessity for clear and definite land descriptions. The descriptions must be precise enough for a surveyor to identify the land. In this case, the descriptions seem inadequate, prompting the question of what exactly was forfeited. However, the individual challenging the forfeiture, Doke, did not raise issues regarding descriptive adequacy in his pleadings or during the trial, aside from a minor detail about tax record formatting, which was deemed inconsequential. Consequently, he failed to preserve this argument for appeal, and any potential error regarding the description is unassigned.

Unassigned error is generally not considered, except in rare instances involving fundamental errors, such as lack of jurisdiction by the reviewing court. Cited cases illustrate this principle, including McCauley v. Consol. Underwriters and In re B.L.D. While the descriptions in a forfeiture may inadequately describe the property, any potential errors related to this defect cannot be addressed due to the limitations on reviewing unassigned error. The court emphasizes that addressing such matters would exceed its authority and delve into unassigned error, which it declines to do. Consequently, the court affirms the order of forfeiture, having resolved the issues raised by the appellant, Doke.