Preview
s ¥ t e4 ACCEPTED
14-14 00385-cv
FOURTEENTH COURT OF APPEAL
HOUSTON TEXAS
No 14-14-00385-CV 4/13/2015 4 58 44 PM
CHRISTOPHER PRINI
CLERK
In the
FL UED Court of Appeals
For the
nels Dantel
District Clerk Fourteenth District of Texas
APR 24 2015 At Houston
Time
i rarris County Texas +
Bye
No 2012-13933
In the 157th Crvil District Court
Of Harris County, Texas
APPROXIMATELY $31,421 00
Appellant
Vv
STATE OF TEXAS
Appellee
+
STATE’S APPELLATE BRIEF
+
DEVON ANDERSON
District Attorney
Harris County, Texas
Chris Dane} MELISSA P HERVEY
District Clerk
Assistant District Attorney
APR 24 anis Harris County, Texas
Te¢.
Taegu ses
o
4 ae State Bar Number 24053741
Bp ANGELA BEAVERS
Dai uty
Assistant District Attorney
1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone (713) 755-5826
Fax Number (713) 755-5809
Hervey_Melissa@dao hctx net
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED
ee
BY APPELLANT
RECORDER S MEMORANDUM
This instrument is of poor quality
\ atthe time of maging
.
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 9 4(g) and Texas Rule of
Appellate Procedure 391, the State requests oral argument only if appellant
requests oral argument
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rules of Appellate Procedure 38 1(a) and 38 2(a)(1)(A), a
complete list of the names of all interested parties, and the names and addresses of
all trial and appellate counsel, is provided below
Counsel for Appellee, the State of Texas, Plaintiff at Trial
Devon Anderson—District Attorney of Harris County
Melissa P Hervey—Assistant District Attorney on appeal
Angela Beavers, Robyn A Brown—Assistant District Attorneys at
trial
Harris County District Attorney’s Office
1201 Franklin Street, Suite 600
Houston, Texas 77002
Appellant, Respondent at Trial
Fredi Azuara-Enriquez
Counsel for Appellant
Sean M Reagan—Defense Counsel on appeal and at trial
Leyh, Payne & Mallia, PLLC
9545 Katy Freeway, Suite 200
7
Houston, Texas 77024
Stephen E McCleery—Defense Counsel at trial
The McCleery Law Firm
5200 Montrose, Sixth Floor
Houston, Texas 77006
Mark R Thiessen—Defense Counsel in criminal case
The Thiessen Law Firm
1221 Studewood Street
Houston, Texas 77008
Trial Judge
Honorable Randy Wilson—Presiding Judge of the 157th Civil
District Court
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT
IDENTIFICATION OF THE PARTIES
TABLE OF CONTENTS 11
INDEX OF AUTHORITIES Iv
STATEMENT OF THE CASE
STATEMENT OF FACTS
SUMMARY OF THE ARGUMENT
REPLY TO APPELLANT’S FIRST AND SECOND POINTS OF ERROR
I FORFEITURE OF CONTRABAND
i
s
II STANDARDS OF REVIEW AND APPLICABLE LAW REGARDING LEGAL
AND FACTUAL SUFFICIENCY IN AN ASSET FORFEITURE CASE 10
JIT LEGAL SUFFICIENCY OF THE EVIDENCE 12
IV FACTUAL SUFFICIENCY OF THE EVIDENCE 33
REPLY TO APPELLANT’S THIRD POINT OF ERROR 36
I STANDARD OF REVIEW AND APPLICABLE LAW REGARDING THE
SUBMISSION OF JURY QUESTIONS AND INSTRUCTIONS 36
I BROAD-FORM SUBMISSION OF JURY QUESTIONS AND CASTEEL 36
IT THE JURY CHARGE WAS CORRECT BECAUSE CASTEEL IS
INAPPLICABLE TO THIS CASE, GIVEN THAT THE CASE FEATURED
ONLY ONE LIABILITY THEORY 42
Iv EVEN IF THIS CASE DID FEATURE MULTIPLE LIABILITY THEORIES,
CASTEEL WAS NoT VIOLATED BECAUSE ALL OF SUCH THEORIES
WERE VALID 46
V ANY ERROR IN THE JURY CHARGE WAS HARMLESS 49
REPLY TO APPELLANT’S FOURTH POINT OF ERROR 52
I STANDARD OF REVIEW AND APPLICABLE LAW FOR ASSESSING THE
CONSTITUTIONALITY OF A STATUTE 52
II APPELLANT FAILED TO PRESERVE ERROR REGARDING HIS
CONSTITUTIONALITY CHALLENGE 53
HIT ERROR-PRESERVATION ISSUES ASIDE, APPELLANT FAILED TO
ESTABLISH THAT ARTICLE 59 05(D) IS FACIALLY UNCONSTITUTIONAL 56
CONCLUSION AND PRAYER 58
CERTIFICATE OF COMPLIANCE 59
CERTIFICATE OF SERVICE 60
ul
INDEX OF AUTHORITIES
CASES
$132,265 00,
409 S W 3d 17 (Tex App —
Houston [1st Dist] 2013, no pet ) 10, 35
$136,205 00 v State,
848 S W 2d 888 (Tex App—
Houston [14th Dist ] 1993, no writ) 21
$162,950 00 v State,
911 S W 2d 528 (Tex App —
Eastland 1995, writ denied) 14, 33, 45
$165,524 78v State,
47S W 3d 632 (Tex App —
Houston [14th Dist] 2001, pet refd) 10, 11
$217,590 00 v State,
54S W 3d 918 (Tex App —
Corpus Christi 2001, no pet) 35
$22,922 00 v State,
853 S W 2d 99 (Tex App —
Houston [14th Dist ] 1993, writ denied) 10, 11, 14, 33, 35, 44
$43,774 00 v State,
266 S W 3d 178 (Tex App —
Texarkana 2008, pet denied) 15, 17, 19, 21, 22, 28, 31, 32, 35
$8,300 00 v State,
No 05-11-00901-CV, 2012 WL 5359229 (Tex App —
Dallas Nov 1, 2012, no pet) 32
$8,500 00 v State,
774 S W 2d 788 (Tex App —
Houston [14th Dist ] 1989, no writ) 10
Acosta v State,
429 S W 3d 621 (Tex Crim App 2014) 15, 17, 25, 28
Iv
4
Antrim v State,
868 S W 2d 809 (Tex App —
Austin 1993, no writ) 15, 32, 35
Bed, Bath & Beyond, Inc v Urista,
211 S W 3d 753 (Tex 2006) 38, 39, 42
Cantu v State,
Nos 13-04-146-CR, 13-04-148-CR, 2005 WL 1706507 (Tex App —
Corpus Christi-Edinburg July 14, 2005, no pet) 19
City of Keller v Wilson,
168 S W 3d 802 (Tex 2005) 10, 11
Columbia Med Ctr of Las Colinas v Bush,
122 $ W 3d 835 (Tex App —
Fort Worth 2003, pet denied) 39, 40, 42, 44, 48
Columbia Rio Grande Healthcare, L P v Hawley,
284 S W 3d 851 (Tex 2009) 49
Crown Life Ins Co v Casteel,
22 S W 3d 378 (Tex 2000) 37, 38, 49
Dreyer v Green,
871 S W 2d 697 (Tex 1993) 54, 56
Formosa Plastics Corp, US A v Kajima Int'l, Inc ,
216 S W 3d 436 (Tex App —
Corpus Christi 2006, pet denied) 40, 41, 42, 44, 46, 50, 52
Fry v Comm’n for Lawyer Discipline,
979 S W 2d 331 (Tex App —
Houston [14th Dist] 1998, pet denied) 54, 56
In re Jane Doe 2,
19 S W 3d 278 (Tex 2000) 53, 54
Lee v State,
143 S W 3d 565 (Tex App —
Dallas 2004, pet ref?d) 21
Lemos v Montez,
680 S W 2d 798 (Tex 1984) 37
Lundy v Masson,
260 S W 3d 482 (Tex App —
Houston [14th Dist ] 2008, pet denied) 43
Methodist Healthcare Sys of San Antonio, Ltd, LL P v Rankin,
307 S W 3d 283 (Tex 2010) 53
Pool vy Ford Motor Co ,
715 S W 2d 629 (Tex 1986) 11
Powell Elec Systems, Inc v Hewlett Packard Co ,
356 S W 3d 113 (Tex App—
Houston [1st Dist ] 2011, no pet ) Al, 42, 44, 48
Quantum Chem Corp v Toennies,
47S W 3d 473 (Tex 2001) 49
Romero v KPH Consol, Inc ,
166 S W 3d 212 (Tex 2005) 50
Spurs v State,
850 S W 2d 611 (Tex App—
Tyler 1993, writ denied) 14, 33, 45
State v $11,014 00,
820 S W 2d 783 (Tex 1991) 9, 10, 13, 27, 31
State v $90,235 00,
390 S W 3d 289 (Tex 2013)
State v Scott,
460 S W 2d 103 (Tex 1970) 54, 56
SunBridge Healthcare Corp v Penny,
160 S W 3d 230 (Tex App —
Texarkana 2005, no pet ) 42, 44
Tenet Hospitals Ltd v Rivera,
445 S W 3d 698 (Tex 2014) 53
Tex Dep’t of Assistive and Rehabilitative Servs v Abraham,
No 03-05-00003-CV, 2006 WL 191940 (Tex App —
Austin Jan 27, 2006, no pet ) 50, 52
Tex Dep’t of Human Servs v EB,
802 S W 2d 647 (Tex 1990) 37, 43
Texas Mut Ins Co v Ruttiger,
381 S W 3d 430 (Tex 2012) 35
Thota v Young,
366 S W 3d 678 (Tex 2012) 36, 37
Vi
Tillman v Mem’! Hermann Hosp Sys ,
440 S W 3d 203 (Tex App —
Houston [14th Dist] 2013, pet denied) 52
Transcont’l Ins Co v Crump,
330 S W 3d 211 (Tex 2010) 49
United States v $129,727 00,
129 F 3d 486 (9th Cur 1997) 18
United States v $242,484 00,
389 F 3d 1149 (11th Cir 2004) 17, 25, 28, 29
United States v $369,980 00,
214 Fed Appx 432 (Sth Cir 2007) 17, 25
United States v $42,500 00,
283 F 3d 977 (9th Cir 2002) 17
United States v Delgado,
653 F 3d 729 (8th Cir 2011) 19
Walker v Gutierrez,
111 S W 3d 56 (Tex 2003) 36
Wojcik vy Wesolick,
97 S W 3d 335 (Tex App —
Houston [14th Dist ] 2003, no pet ) 53
STATUTES
21USCA § 841 48
21USCA § 848 48
21USCA § 856 48
21USCA §952(a) 48
21USCA § 960 48
TEX CODE CRIM PROC ANN art 59 01(2)
TEX CODE CRIM Proc ANN art 59 01(2)(B)(1) 9, 13, 46
Tex Cope CRIM Proc ANN art 59 01(2)(B)(1v) 13, 46
TEX CODE CRIM Proc ANN art 59 01(2)(D) 9, 46
Vu
Tex CODE CRIM PROC ANN art 59 02 8
Tex Cope CRIM Proc ANN art 59 02(a) 46
TEX CODECRIM Proc ANN art 59 04 1
TEX CODE CRIM PROC ANN art 59 05(b) 10, 46
TEX CODE CRIM PRoc ANN art 59 05(d) 14, 34, 52
TEX CODE CRIM PROC ANN art 59 05(e) 57
Tex HEALTH & SAFETY CODE ANN § 481 112 46
TEx HEALTH & SAFETY CODE ANN § 481 120 46
Tex PENAL CODE ANN § 34 01(1)(A) 46
TEX PENAL CODE ANN § 34 01(1) 12
TEX PENAL CODE ANN § 34 01(4) 12, 46
TEX PENAL CODE ANN § 34 02(a)(1) 12, 46
RULES
Tex R App P 9 4(g)
Tex R App P 9 4() 59
Tex R App P 33 1(a) 54
Tex R App P 38 2(a)(1)(A)
Tex R App
P 391
Tex R App P 44 1(a) 49
Tex R Civ P 45 53
Tex R Civ P 85 54
Tex R Civ P 94 54
Tex R Civ P 98 54
Tex R Civ P 277 37, 42
Vill
TO THE HONORABLE COURT OF APPEALS
STATEMENT OF THE CASE
On March 7, 2012, in cause number 2012-13933, the State of Texas (State),
filed a Notice of Seizure and Intended Forfeiture of approximately $31,421 00,
which the State seized from Fredi Azuara-Enriquez (appellant) on February 8,
2012 (CR — 5-8), see TEX CODE CRIM Proc ANN art 5904! Appellant
answered the State’s petition for forferture and the case proceeded to a jury trial on
October 29, 2013 On October 30, 2013, the jury answered the two questions
submitted to it by the trial court affirmatively in the State’s favor, concluding that
there was probable cause for seizing the $31,421 00 and that the money is
contraband (CR — 68-72)
Appellant filed a Motion for Judgment Notwithstanding the Verdict on
November 7, 2013 (CR — 103-39) In response to said motion, the trial court
entered a judgment 1n appellant’s favor on January 14, 2014 (CR -— 184-85) On
February 17, 2014, the trial court vacated its previous judgment from January 17,
2014 (CR-— 186-87) Then, on February 18, 2014, the trial court entered a final
' The Clerk’s Record consists of one volume, heremafter referenced as (CR — [page number])
The Court Reporter’s Record consists of four volumes, which will be referenced as (RR [I-IV] —
{page number]) Exhibits admitted at trial are contained within Volume IV of the Reporter’s
Record Accordingly, State’s Exhibits will be referenced as (RR IV — SX [exhibit number]) and
Defendant’s Exhibits will be referenced as (RR IV — DX [exhibit number]) References to
appellant’s brief will be designated, (AB — [page number])
Judgment in the State’s favor, ordering that the $31,421 00 1s forfeited to the State
(CR — 188-89)
On March 20, 2014, appellant filed a Motion for New Trial, and a Motion
for Reconsideration of the Respondent’s Motion for Judgment Notwithstanding the
Verdict (CR — 190-96, 205-11) On May 13, 2014, the trial court dented
appellant’s Motions for New Trial and for Reconsideration of the Respondent’s
Motion for Judgment Notwithstanding the Verdict (CR — 317, 326) On May 18,
2014, appellant timely filed written notice of appeal to challenge the trial court’s
final judgment, entered February 18, 2014 (CR - 326)
+
STATEMENT OF FACTS
On February 7, 2012, appellant and Elmer Chacon boarded a bus in
Doraville, Georgia—near Atlanta—that was headed to Houston, Texas (RR II —
89, 167), see (RRIV—SX 12) Ina zippered compartment at the bottom of a new
bag, hidden beneath his clothing and other personal items and stashed among the
metal rods and hardware components of the bag, appellant carried $31,421 00 in
cash (RR II — 94, 97-100, 136-37), see (RR IV — SX 13-16) The money was
largely comprised of small-denomination bills—including 1,222 $20 bills—and
was divided into several bundles, all of which were double-wrapped with an under
layer of cellophane and an outer layer of duct tape (RR II — 94, 99, 109), (RR II
— 17, 31-32), see (RR IV — SX 15-16, 25) Like appellant, Chacon carried
$39,222 00 in cash with him in a new bag (RR II — 103-04, 107-08), (RR III — 14-
16) Like the money that appellant was carrying, Chacon’s money was also
concealed in a zippered compartment at the bottom of Chacon’s bag, under
Chacon’s clothing and personal items, was comprised of mostly small-
denomination bills, and was double-wrapped in cellophane and duct tape (RR III
— 14-19, 31-32), see (RR IV — SX 21-22, 28)
On the morning of February 8, 2012, Officers Arnold Alvarez and Lloyd
Hicks—members of a high-intensity drug-traffickmg task force within the
Narcotics Division of the Houston Police Department (HPD)—went to an
Omnibus bus terminal in southeast Houston to monitor incoming buses and keep
watch for bus passengers who might be drug or drug-money couriers (RR
72) Aware that drugs routinely flow into Texas from Mexico on evening buses,
and thereafter travel out of Houston to other cities to the north and east, and that
the money from the sales of those drugs flows back south and west from those
cities to Houston, and eventually back to Mexico, on buses that arrive in Houston
in the morning, the HPD drug-interdiction officers were particularly watchful that
morning for possible drug-money couriers arriving on the inbound bus from
Atlanta (RR II — 73, 163-64, 166), (RR III — 34)
When the bus from Atlanta arrived at the Omnibus terminal, the officers
observed that appellant and Chacon disembarked the bus together, one right behind
the other, and that both men appeared to be “kind of looking around, scanning the
area” for the police (RR II — 84-85, 118, 166-67), (RR II - 6) Alvarez also
observed that appellant “stuck out” from the typical long-distance bus traveler
because he was unusually well-dressed, with new shoes and a new bag (RR II —
82-83, 145), see (RR IV —SX 10) Alvarez then observed that appellant clutched
hus bag in an oddly possessive manner, holding it tight to his chest “like he wasn’t
going to let the bag go” (RR II — 84-85, 120, 154) Recognizing appellant’s and
Chacon’s appearances and behaviors as common indicators of drug or drug-money
trafficking and, thus, growing suspicious that appellant and Chacon might be drug-
money couriers, Alvarez began to follow and watch appellant while Hicks
monitored Chacon (RR II — 83-84, 166-68), (RR III — 6-7)
Alvarez watched appellant proceed directly to the bathroom inside the bus
terminal, still oddly holding his bag tight to his chest, and then “finally” exit the
bathroom and sit right next to another person in the seating area of the station,
acting “like he knew the guy or something” (RR II — 85-87, 113-15) Alvarez
then observed appellant begin conversing with the other person while appellant
simultaneously “watch[ed] [the officers] to see what [they] were gomg to do”
(RR I-86) Alvarez noticed that appellant appeared to be “[e]xtremely nervous”
and that he was “shaking huis leg up and down” and exhibiting other physical
indicators of unease as he continued scanning the station for the police (RR II —
87-88, 115) Alvarez also saw that appellant did not appear to be taking steps to
either leave the bus terminal, if Houston was appellant’s final destination, or to
prepare to board another bus, otherwise (RR II — 87)
Becoming ever-more suspicious of appellant, given Alvarez’s trainmg and
experience with interdiction investigations, Alvarez decided to approach appellant
and talk to him—a common step the officers employ when trying to detect drug-
money couriers (RR II — 88) Alvarez walked up to appellant and, speaking to
appellant in Spanish, identified himself as a police officer (RR II — 88-89)
Alvarez asked appellant whether appellant would be willing to speak to him and
appellant assented (RR II — 89) In response to Alvarez’s questions, appellant
stated that he had arrived in Houston from Atlanta and that Houston was his final
destination (RR II — 89) Appellant also reported to Alvarez that appellant
intended to stay in Houston for only two days “to meet a friend[,]” which Alvarez
considered another indicator of suspicious activity, given the length of the Atlanta-
Houston bus trip (RR II — 90-91) Appellant then handed Alvarez appellant’s
identification and bus ticket, at Alvarez’s request (RR I[-—90) Alvarez observed
that appellant’s bus ticket was for one-way travel, and that 1t had been issued in the
name of “Mauricio Lopez[,]” not appellant’s name—also factors consistent with
drug- and drug-money couriermg (RR II — 91-92, 115), see (RRIV — SX 12)
Alvarez asked appellant if he had any luggage with him, appellant said yes
and pointed to his bag (RR II — 89, 93, 154), see (RRIV-—SX 10) Alvarez asked
appellant if appellant had packed his bag and 1f he knew everything that was in it,
again, appellant said yes (RR II — 93-94, 125-26) Alvarez then asked for
appellant’s consent to search appellant’s bag, appellant agreed (RR II — 93-94,
125-26) At the very bottom of appellant’s bag, beneath all of appellant’s clothmng
and personal items, Alvarez opened the zippered compartment that housed the
bag’s metal rods and hardware and discovered the $31,421 00 of suspiciously
double-wrapped bundles of money that was hidden there (RR II — 98-99, 136-37),
see (RR IV — SX 13-16) The police also discovered the $39,222 00 that was
similarly packaged and conealed in the bottom of Chacon’s bag (RR II — 103-05,
108, 117), (RR III — 14-17, 30-32), compare (RR IV — SX 15-16) with (RR IV —
21-22) Neither appellant nor Chacon claimed the money as their own property,
knew how much money they were carrying, or offered the officers any legitimate
source or explanation for the money (RR II— 101, 116), (RR II — 23-26)
The officers called an HPD canine unit to the scene to have the drug dog
conduct a sniff-search of appellant’s and Chacon’s bags (RR II-— 107) The dog
gave a positive alert to the odor of drugs emanating from the bags, signifying to the
a
police that the money inside the bags had recently been in close proximity to a
large quantity of drugs (RR III — 55-82) Then, while counting the money from
appellant’s and Chacon’s bags, the officers observed that both sets of currency
were comprised largely of small-denommation bills—mostly $20 bills—which
further indicated to them that the money was derived from drug trafficking (RR II
— 109-11, 117), (RR III — 18-22), see (RR IV — SX 25, 28)
Concluding, based on the totality of the circumstances, that the $31,421 00
and $39,222 00 that appellant and Chacon carried, respectively, was drug money
and, thus, that appellant and Chacon were drug-money couriers, the police seized
the money as contraband and arrested both men for the criminal offense of money
laundermg (CR -—5-8), (RR II- 117, 138, 154), (RR Il — 21-26)
+
SUMMARY OF THE ARGUMENT
The evidence is legally and factually sufficient to support the jury’s
conclusions that there was probable cause to seize the $31,421 00, and that the
money 1s contraband
The trial court did not err by submitting a single broad-form jury question
regarding whether the $31,421 00 1s contraband because this forfeiture action
involved only one legal lability theory—that the money 1s contraband, thus,
Casteel 1s applicable Even if Casteel applies, the trial court did not violate
Casteel because all legal theories submitted through the single broad-form question
were valid Further, even if the complained-of allegation was mvalid, the error
was harmless
Appellant failed to preserve error regarding his complaint that Article
59 05(d) 1s facially unconstitutional But even if appellant did preserve error,
appellant failed to meet his burden to rebut the presumption that the statute 1s valid
by demonstrating that the statute, by its terms, always operates unconstitutionally
+
REPLY TO APPELLANT’S FIRST AND SECOND POINTS OF ERROR
Appellant contends in his first and second points of error that the evidence 1s
legally and factually insufficient to support the jury’s findings that probable cause
existed to seize the money from him, and that the seized money 1s contraband
Because these points of error nvolve the same evidence, the State will address
them together m its response to appellant’s argument to avoid unnecessary
repetition of facts and law
I Forfeiture of Contraband
Chapter 59 of the Texas Code of Criminal Procedure authorizes the State to
seize and forfeit any property, ncludmg money, which 1s subject to forferture
under the specific terms of that Chapter See generally TEX CODE CRIM PRoc
ANN art 5902 Property 1s subject to forfeiture if 1t 1s “contraband” as that term 1s
8
defined in Article 59 01(2)—that 1s, when the property 1s used or intended to be
used in the commission of certain enumerated crimes, including any felony under
Chapter 481 of the Texas Health and Safety Code (related to controlled substances)
or under Chapter 34 of the Texas Penal Code (money laundering), or when the
property constitutes proceeds derived from such felonies See TEX CODE CRIM
Proc ANN art 5901(2)(A)-(D), 822,922 00 v State, 853 S W2d 99, 101 (Tex
App —Houston [14th Dist] 1993, writ denied) Specifically, money that 1s
derived from or used or intended to be used in manufacturing, delivering, selling,
or possessing a controlled substance 1s subject to forfeiture See TEX CODE CRIM
Proc ANN art 5901(2)(B)(), TEX CODE CRIM Proc ANN art 5901(2)(D),
State v $11,014 00, 820 S W 2d 783, 784 (Tex 1991) (“Money 1s subject to
forfeiture 1f it 1s dertved form or intended for use in manufacturing, delivering,
selling, or possessing a controlled substance ”)
To prevail in a forfeiture proceeding, which 1s a civil im rem proceeding
against the property to be forfeited, the State must satisfy a two-part test First, the
State must show probable cause to seize the property by establishing a reasonable
belief that a substantial connection or nexus exists between the property and the
criminal activity enumerated in the forfeiture statute State v $90,235 00, 390
S W 3d 289, 293 (Tex 2013) Second, the State must prove by a preponderance of
the evidence that the seized evidence 1s contraband and, thus, subject to forfeiture
TEX CODE CRIM PROC ANN art 59 05(b), $165,524 78 v State, 47 S W 3d 632,
634 (Tex App —Houston [14th Dist] 2001, pet ref'd) The State may meet its
burden in this regard with either direct or circumstantial evidence $11,014 00,
820 S W 2d at 785, $132,265 00 v State, 409 S W 3d 17, 23 (Tex App —Houston
[Ist Dist ] 2013, no pet), $165,524 78, 47 S W3d at 634 Further, while the
State’s evidence must amount to more than a mere surmise or suspicion regarding
the illicit source or nature of the seized property, the State 1s not required to
exclude every possible innocent means by which the property may have been
acquired $132,265 00, 409 S W 3d 17, 23 (Tex App —Houston [Ist Dist] 2013,
no pet ), $22,922 00 v State, 853 S W2d 99, 101 (Tex App —Houston [14th
Dist] 1993, writ denied), $8,500 00 v State, 774 S W 2d 788, 792 (Tex App —
Houston [14th Dist ] 1989, no writ)
II Standards of Review and Applicable Law Regarding Legal and Factual
Sufficiency in an Asset Forfeiture Case
Evidence 1s legally msufficient to support a jury’s verdict when (1) there 1s
a complete absence of evidence of a vital fact, (2) the reviewing court 1s barred
from giving weight to the only evidence offered to prove a vital fact, (3) the
evidence offered amounts to no more than a scintilla, or (4) the evidence
conclusively establishes the opposite of a vital fact City of Keller v Wilson, 168
S W 3d 802, 810 (Tex 2005) Ultimately, the question 1s whether the evidence
adduced would permit any reasonable factfinder to reach the verdict under review
10
Keller, 168 S W 3d at 827 In making this determination, a reviewing court credits
evidence which 1s favorable to the yury’s verdict if a reasonable factfinder would
credit it, and disregards evidence contrary to the verdict unless a reasonable
factfinder could not disregard 1t Jd Additionally, an appellate court may not
substitute its yudgment for that of the factfinder so long as the evidence falls within
the zone of reasonable disagreement Keller, 168 S W 3d at 822
By contrast, evidence 1s factually insufficient to support a jury’s verdict only
when the evidence 1s so weak, or the finding 1s so contrary to the overwhelming
weight and preponderance of the evidence, that the verdict 1s clearly wrong and
unjust Pool v Ford Motor Co , 715 S W 2d 629, 635 (Tex 1986), $165,524 78,
47 S W3d at 637 When conducting a factual-sufficiency analysis, a reviewing
court must consider and weigh all of the evidence, not just the evidence that
supports the verdict Pool, 715 S W 2d at 635, $165,524 78, 47 S W 3d at 637
Further, as with a legal-sufficiency assessment, the court may draw any and all
inferences reasonably capable of being drawn from the circumstances shown in
evidence, but must not assess the witnesses’ credibility or substitute its yudgment
for that of the factfinder See $165,524 78, 47 S W3d at 637 (“[W]e may not
assess the witnesses’ credibility or substitute our yudgment for that of the jury,
even if the evidence would clearly support a different result”), $22,922 00, 853
S W 2d at 101-03
11
I Legal Sufficiency of the Evidence
To lawfully forfert the $31,421 00 at issue in this case, the State was
required to show that it had probable cause to seize the property by establishing a
reasonable belief that a substantial connection or nexus exists between the money
and the criminal activity enumerated in the forfeiture statute Further, the State
was also obligated to prove by a preponderance of the evidence that those funds
are contraband, that 1s, for purposes of this case, that the money was used in,
intended to be used in, or derived from the commission of any felony under
Sections 481 112 or 481 120 of the Health and Safety Code— e , manufacturing,
delivering, selling, or possessing a controlled substance—or that the money was
used 1n, intended to be used in, or derived from the commission of any felony
under Section 34 02 of the Penal Code—ie, money laundering, or the knowing
acquisition, concealment, possession, transfer, or transportation of the proceeds of
criminal actrvity which constitutes any felony under Texas or federal law” (CRI-
? Under Chapter 34 of the Penal Code, a person commuts the felony offense of money laundering
if he knowingly “acquires or maintains an interest in, conceals, possesses, transfers, or transports
the proceeds of criminal activity[ J” TEX PENAL CODE ANN § 34 02(a)(1) “Criminal activity”
for purposes of the money laundering statute consists of any offense or preparatory offense that
1s classified as a felony under Texas or federal law, or that 1s punishable by confinement for
more than one year under the laws of another state TEX PENAL CopE ANN § 3401(1)
“Proceeds” of such crimmal activity consists of the funds acquired or derived directly or
indirectly from, produced through, realized through, or used in the commission of that activity
TeX PENAL CODE ANN § 34 01(4)
12
69-70), see TEX CODE CRIM PRoc ANN art 59 01(2)(B)(G), TEx CODE CRIM
Proc ANN art 59 01(2)(B)(1v), $11,014 00, 820 S W 2d at 784
Stated another way, to prove that the $31,421 00 is contraband in this case,
the State was required to demonstrate either (1) that it 1s direct drug money that
was used in, intended to be used it, or derived from drug traffickmg committed in
violation of Sections 481 112 or 481 120 of the Texas Health and Safety Code, or
(2) that 1t laundered drug money because it was the proceeds of any felony drug-
trafficking offense under Texas or federal law, which were being transported,
concealed, possessed, or transferred through Texas Contrary to appellant’s
assertion, the State was not restricted to proving violations of only Sections
481 112 or 481 120 of the Health and Safety Code as the underlying felonious
“crimmal activity” for the evidence to be sufficient under the State’s money-
laundering factual theory, rather, any drug-trafficking offense that was a felony
under Texas or federal law could have supported the State’s money-laundering
allegation This 1s so because the State could prove that the money 1s contraband
because of its ties to drug trafficking entirely through circumstantial evidence, and
because the State was not required in the forfeiture suit to identify or prove the
specific drug offense or offenses that the currency was used in, intended to be used
in, or was derived from, prove how, when, or where any such drug offense or
offenses were committed, prove who may have employed or solicited appellant to
13
act as a drug-money courier, if appellant was not acting alone, or prove that
appellant had ever been charged or convicted of crime underlying the forfeiture
action See TEX CODE CRIM Proc ANN art 59 05(d) (“A final conviction for an
underlying offense is not a requirement for forfeiture under [Chapter 59 of the
Texas Code of Criminal Procedure] ”), $22,922 00, 853 S W 2d at 102 (stating that
“[t]he State need only prove by a preponderance of the evidence that the seized
money was derived from a felonious offense[,]” and “[t]herefore, the fact that [the
respondent] was not charged with a felony or that the amounts of marihuana found
were below felony amounts 1s not dispositive ”), $162,950 00 v State, 911 S W 2d
528, 529-30 (Tex App —Eastland 1995, writ denied) (explaining that when there
1s no direct evidence linking seized funds to illegal activity, the State must present
sufficient circumstantial evidence of that connection, but that “[t]he State does not
have to prove that a specific crime was committed”), Spurs v State, 850 S W 2d
611, 613-15 (Tex App —Tyler 1993, writ denied) (holding that the State was not
required to identify or prove actual sales or deliveries of marijuana to substantiate
forfeiture of seized money because “the issue before the [factfinder] was not
whether the State could prove the criminal offense of delivery of a controlled
substance beyond a reasonable doubt, but whether, by a preponderance of the
evidence, the record show[ed] that the money was derived from the sale,
14
manufacture, distribution, delivery, or other commercial undertaking violative of
[the Texas Controlled Substances Act] ”)
In this case, the jury’s verdicts that there was probable cause to seize the
$31,421 00 from appellant, and that that seized cash 1s contraband under either of
the alleged factual theortes—both of which ultimately required proof that the
forferted money was used in, was intended to be used in, or was derived from the
criminal activity of illegally trafficking felonious quantities of drugs in violation of
Texas or federal law—is supported by legally-sufficient evidence When assessing
the sufficiency of the evidence in a forfeiture case involving seized currency
which, as here, 1s contraband because of its ties to drug trafficking, appellate courts
have considered the followmg non-exhaustive factors (1) the proximity of the
money to drugs or to evidence of drug trafficking, (2) evidence that the money was
previously in contact with or in close proximity to drugs, e g , through a narcotics-
detecting canine alert, (3) suspicious activity consistent with drug trafficking, (4)
the amount of money at issue, and (5) the presence of expert testimony concerning,
the substantial connection or nexus between the money and criminal activity See
$43,774 00 v State, 266 SW 3d 178, 186 (Tex App —Texarkana 2008, pet
denied), Antrim v State, 868 S W 2d 809, 814 (Tex App —Austin 1993, no writ),
see also Acosta v State, 429 S W 3d 621, 625-32 (Tex Crim App 2014) All of
15
these factors support the jury’s conclusion that the $31,421 00 forfeited in this case
1s contraband
1 Proximity of the money to drugs or to evidence of drug trafficking
The $31,42100 was found in close proximity to evidence of drug
trafficking—namely, evidence of concealment—despite that there is no evidence
that appellant had drugs or drug paraphernalia on his person or in his bag First,
the record demonstrates that the money was wrapped in a highly suspicious
manner, with two different layers of materials, before 1t was concealed inside
appellant’s bag each bundle of cash was first wrapped in green, plastic
cellophane, and then was wrapped a second time in gray duct tape (RR II — 94),
see (RR IV — SX 15-16) Aside from the intrinsically-suspect nature of the
wrapping, itself, Alvarez and Hicks testified at trial that, given their substantial
training and experience in investigating drug-trafficking crimes, this method of
wrapping currency 1s significant evidence that the funds are drug money because
drug dealers, drug couriers, and drug-money couriers commonly package money in
that manner or in a substantially-similar manner in attempt to prevent police drug
dogs from smelling the odor of drugs emanating from the money (RR II ~ 100,
116, 162), (RR III ~ 14, 17, 31-32), see (RR II — 79-80)
Appellate courts in Texas and other states, as well as federal courts, have
widely agreed that packaging cash in such a way 1s potent circumstantial evidence
16
that the money was used in, was intended to be used in, or was derived from drug
trafficking even if the wrapping, alone, may not suffice to definitely establish that
illicit connection See Acosta, 429 S W3d at 630 (affirming that “packaging,
especially that designed to fool the nose of a drug dog, is potent evidence from
which it can be inferred that a nexus exists between money and drug activity[,]”
and noting that “[t]he packaging in [that] case—vacuum sealing—is widely
regarded as indicatmg a conscious desire to prevent detection by drug dogs »),
$43,774 00, 266 S W 3d at 186 (finding that money wrapped 1n plastic bags was
probative evidence connecting the money to drug trafficking), see also United
States v $369,980 00, 214 Fed Appx 432, 433-34 (Sth Cir 2007) (finding the
evidence sufficient to support forfeiture of money when, among other evidence, the
record showed that the money was double-wrapped in cellophane and duct tape),
United States v $242,484 00, 389 F 3d 1149, 1162 (11th Cir 2004) (agreeing that
forfeited money was highly suspicious and consistent with drug proceeds when it
was wrapped in cellophane-type material), United States v $42,500 00, 283 F 3d
977, 982 (9th Cir 2002) (finding it significant that forfeited money was wrapped in
cellophane, which, “[uJnlike a purse or money pouch, 1s not a normal repository
for carrying large amounts of money[,]” because cellophane “is largely
impermeable to gas, [and] 1s commonly used to conceal the smell of drugs and
avoid detection by drug dogs ”), United States v $129,727 00, 129 F 3d 486, 491
17
(9th Cir 1997) (acknowledging that a strong nexus between drug trafficking and
drug money “was provided by the distinctive manner in which the currency was
wrapped in fabric softener sheets and plastic wrap[,]” which “[t]he narcotics detail
recognized as an indication of drug-related activity”) So, given that it may be
rationally inferred that the numerous distinctrvely-wrapped bundles of money
found in appellant’s bag were packaged with the conscious intent to avoid
detection by a drug dog and, thus, were consistent with well-known drug- and
drug-money-trafficking practices, the evidence pertaining to the secretive
packaging of the forfeited money supports the yury’s conclusion that the funds are
contraband
Second, also evincing that appellant’s cash 1s contraband, 1s the fact that the
bundles of suspiciously-wrapped money were stashed mside a zippered
compartment in appellant’s bag, hidden underneath appellant’s clothing and other
items (RR II — 94, 98-99, 136-37), (RR Ill — 30), see (RR IV — SX 13-15)
Though the zippered section of appellant’s bag wasn’t a “false bottom” or other
compartment that was entirely concealed from view or wholly inaccessible, the
officers’ testimony and the admitted photographs of the bag show that 1t was not an
area where a person would typically store personal 1tems in the bag, given that the
shallow area was plainly intended to house only the metal rods and other physical
hardware for the bag (RR II — 98-99, 136-37), see (RR IV — SX 14-15) Thus,
18
appellant or whoever packed appellant’s bag made a conscious effort to conceal
the bundles of money—a fact which 1s consistent with drug trafficking and, thus,
support’s the jury’s conclusions regarding the money-drug nexus and the nature of
the money as contraband See $43,774 00, 266 S W 3d at 186 (finding evidence of
a hidden compartment to be significant evidence supporting forferture, given that
“i]t 1s consistent with the secretion of drugs, money, or both”), Cantu v State,
Nos 13-04-146-CR, 13-04-148-CR, 2005 WL 1706507, at *1-2 (Tex App—
Corpus Christi-Edinburg July 14, 2005, no pet) (mem op, not designated for
publication) (finding the evidence legally and factually sufficient to support the
defendant’s conviction for money laundering when, among other factors, the cash
was found hidden in the engine compartment of the defendant’s car), see also
United States v Delgado, 653 F 3d 729, 732-33 (8th Cir 2011) (finding large
amounts of cash wrapped in cellophane and hidden im various locations to be
sufficient evidence in a money-laundering case)
2 Evidence that the money was previously in contact with or in clos
proximity to drugs, e g , through a drug-dog alert
The record establishes that Houston Police Officer Piel’s narcotics-detecting
canine partner, Diego, alerted to the odor of drugs emanating from appellant’s and
Chacon’s bags—which still contained the numerous bundles of cash seized from
the two men—and that Diego did not alert to anything else in the enclosed room
where the bags were laid for Diego to sniff (RR III — 60-82), see (RR II — 107-08)
19
(demonstrating that the money was not removed from appellant’s and Chacon’s
bags and counted until after the canme-sniff search was done) Piel testified that
Diego 1s trained and certified by the National Narcotic Detector Dog Association
(NNDDA) to detect and alert to the odors of cocain
Preview
s ¥ t e4 ACCEPTED 14-14 00385-cv FOURTEENTH COURT OF APPEAL HOUSTON TEXAS No 14-14-00385-CV 4/13/2015 4 58 44 PM CHRISTOPHER PRINI CLERK In the FL UED Court of Appeals For the nels Dantel District Clerk Fourteenth District of Texas APR 24 2015 At Houston Time i rarris County Texas + Bye No 2012-13933 In the 157th Crvil District Court Of Harris County, Texas APPROXIMATELY $31,421 00 Appellant Vv STATE OF TEXAS Appellee + STATE’S APPELLATE BRIEF + DEVON ANDERSON District Attorney Harris County, Texas Chris Dane} MELISSA P HERVEY District Clerk Assistant District Attorney APR 24 anis Harris County, Texas Te¢. Taegu ses o 4 ae State Bar Number 24053741 Bp ANGELA BEAVERS Dai uty Assistant District Attorney 1201 Franklin Street, Suite 600 Houston, Texas 77002 Telephone (713) 755-5826 Fax Number (713) 755-5809 Hervey_Melissa@dao hctx net ORAL ARGUMENT REQUESTED ONLY IF REQUESTED ee BY APPELLANT RECORDER S MEMORANDUM This instrument is of poor quality \ atthe time of maging . STATEMENT REGARDING ORAL ARGUMENT Pursuant to Texas Rule of Appellate Procedure 9 4(g) and Texas Rule of Appellate Procedure 391, the State requests oral argument only if appellant requests oral argument IDENTIFICATION OF THE PARTIES Pursuant to Texas Rules of Appellate Procedure 38 1(a) and 38 2(a)(1)(A), a complete list of the names of all interested parties, and the names and addresses of all trial and appellate counsel, is provided below Counsel for Appellee, the State of Texas, Plaintiff at Trial Devon Anderson—District Attorney of Harris County Melissa P Hervey—Assistant District Attorney on appeal Angela Beavers, Robyn A Brown—Assistant District Attorneys at trial Harris County District Attorney’s Office 1201 Franklin Street, Suite 600 Houston, Texas 77002 Appellant, Respondent at Trial Fredi Azuara-Enriquez Counsel for Appellant Sean M Reagan—Defense Counsel on appeal and at trial Leyh, Payne & Mallia, PLLC 9545 Katy Freeway, Suite 200 7 Houston, Texas 77024 Stephen E McCleery—Defense Counsel at trial The McCleery Law Firm 5200 Montrose, Sixth Floor Houston, Texas 77006 Mark R Thiessen—Defense Counsel in criminal case The Thiessen Law Firm 1221 Studewood Street Houston, Texas 77008 Trial Judge Honorable Randy Wilson—Presiding Judge of the 157th Civil District Court TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT IDENTIFICATION OF THE PARTIES TABLE OF CONTENTS 11 INDEX OF AUTHORITIES Iv STATEMENT OF THE CASE STATEMENT OF FACTS SUMMARY OF THE ARGUMENT REPLY TO APPELLANT’S FIRST AND SECOND POINTS OF ERROR I FORFEITURE OF CONTRABAND i s II STANDARDS OF REVIEW AND APPLICABLE LAW REGARDING LEGAL AND FACTUAL SUFFICIENCY IN AN ASSET FORFEITURE CASE 10 JIT LEGAL SUFFICIENCY OF THE EVIDENCE 12 IV FACTUAL SUFFICIENCY OF THE EVIDENCE 33 REPLY TO APPELLANT’S THIRD POINT OF ERROR 36 I STANDARD OF REVIEW AND APPLICABLE LAW REGARDING THE SUBMISSION OF JURY QUESTIONS AND INSTRUCTIONS 36 I BROAD-FORM SUBMISSION OF JURY QUESTIONS AND CASTEEL 36 IT THE JURY CHARGE WAS CORRECT BECAUSE CASTEEL IS INAPPLICABLE TO THIS CASE, GIVEN THAT THE CASE FEATURED ONLY ONE LIABILITY THEORY 42 Iv EVEN IF THIS CASE DID FEATURE MULTIPLE LIABILITY THEORIES, CASTEEL WAS NoT VIOLATED BECAUSE ALL OF SUCH THEORIES WERE VALID 46 V ANY ERROR IN THE JURY CHARGE WAS HARMLESS 49 REPLY TO APPELLANT’S FOURTH POINT OF ERROR 52 I STANDARD OF REVIEW AND APPLICABLE LAW FOR ASSESSING THE CONSTITUTIONALITY OF A STATUTE 52 II APPELLANT FAILED TO PRESERVE ERROR REGARDING HIS CONSTITUTIONALITY CHALLENGE 53 HIT ERROR-PRESERVATION ISSUES ASIDE, APPELLANT FAILED TO ESTABLISH THAT ARTICLE 59 05(D) IS FACIALLY UNCONSTITUTIONAL 56 CONCLUSION AND PRAYER 58 CERTIFICATE OF COMPLIANCE 59 CERTIFICATE OF SERVICE 60 ul INDEX OF AUTHORITIES CASES $132,265 00, 409 S W 3d 17 (Tex App — Houston [1st Dist] 2013, no pet ) 10, 35 $136,205 00 v State, 848 S W 2d 888 (Tex App— Houston [14th Dist ] 1993, no writ) 21 $162,950 00 v State, 911 S W 2d 528 (Tex App — Eastland 1995, writ denied) 14, 33, 45 $165,524 78v State, 47S W 3d 632 (Tex App — Houston [14th Dist] 2001, pet refd) 10, 11 $217,590 00 v State, 54S W 3d 918 (Tex App — Corpus Christi 2001, no pet) 35 $22,922 00 v State, 853 S W 2d 99 (Tex App — Houston [14th Dist ] 1993, writ denied) 10, 11, 14, 33, 35, 44 $43,774 00 v State, 266 S W 3d 178 (Tex App — Texarkana 2008, pet denied) 15, 17, 19, 21, 22, 28, 31, 32, 35 $8,300 00 v State, No 05-11-00901-CV, 2012 WL 5359229 (Tex App — Dallas Nov 1, 2012, no pet) 32 $8,500 00 v State, 774 S W 2d 788 (Tex App — Houston [14th Dist ] 1989, no writ) 10 Acosta v State, 429 S W 3d 621 (Tex Crim App 2014) 15, 17, 25, 28 Iv 4 Antrim v State, 868 S W 2d 809 (Tex App — Austin 1993, no writ) 15, 32, 35 Bed, Bath & Beyond, Inc v Urista, 211 S W 3d 753 (Tex 2006) 38, 39, 42 Cantu v State, Nos 13-04-146-CR, 13-04-148-CR, 2005 WL 1706507 (Tex App — Corpus Christi-Edinburg July 14, 2005, no pet) 19 City of Keller v Wilson, 168 S W 3d 802 (Tex 2005) 10, 11 Columbia Med Ctr of Las Colinas v Bush, 122 $ W 3d 835 (Tex App — Fort Worth 2003, pet denied) 39, 40, 42, 44, 48 Columbia Rio Grande Healthcare, L P v Hawley, 284 S W 3d 851 (Tex 2009) 49 Crown Life Ins Co v Casteel, 22 S W 3d 378 (Tex 2000) 37, 38, 49 Dreyer v Green, 871 S W 2d 697 (Tex 1993) 54, 56 Formosa Plastics Corp, US A v Kajima Int'l, Inc , 216 S W 3d 436 (Tex App — Corpus Christi 2006, pet denied) 40, 41, 42, 44, 46, 50, 52 Fry v Comm’n for Lawyer Discipline, 979 S W 2d 331 (Tex App — Houston [14th Dist] 1998, pet denied) 54, 56 In re Jane Doe 2, 19 S W 3d 278 (Tex 2000) 53, 54 Lee v State, 143 S W 3d 565 (Tex App — Dallas 2004, pet ref?d) 21 Lemos v Montez, 680 S W 2d 798 (Tex 1984) 37 Lundy v Masson, 260 S W 3d 482 (Tex App — Houston [14th Dist ] 2008, pet denied) 43 Methodist Healthcare Sys of San Antonio, Ltd, LL P v Rankin, 307 S W 3d 283 (Tex 2010) 53 Pool vy Ford Motor Co , 715 S W 2d 629 (Tex 1986) 11 Powell Elec Systems, Inc v Hewlett Packard Co , 356 S W 3d 113 (Tex App— Houston [1st Dist ] 2011, no pet ) Al, 42, 44, 48 Quantum Chem Corp v Toennies, 47S W 3d 473 (Tex 2001) 49 Romero v KPH Consol, Inc , 166 S W 3d 212 (Tex 2005) 50 Spurs v State, 850 S W 2d 611 (Tex App— Tyler 1993, writ denied) 14, 33, 45 State v $11,014 00, 820 S W 2d 783 (Tex 1991) 9, 10, 13, 27, 31 State v $90,235 00, 390 S W 3d 289 (Tex 2013) State v Scott, 460 S W 2d 103 (Tex 1970) 54, 56 SunBridge Healthcare Corp v Penny, 160 S W 3d 230 (Tex App — Texarkana 2005, no pet ) 42, 44 Tenet Hospitals Ltd v Rivera, 445 S W 3d 698 (Tex 2014) 53 Tex Dep’t of Assistive and Rehabilitative Servs v Abraham, No 03-05-00003-CV, 2006 WL 191940 (Tex App — Austin Jan 27, 2006, no pet ) 50, 52 Tex Dep’t of Human Servs v EB, 802 S W 2d 647 (Tex 1990) 37, 43 Texas Mut Ins Co v Ruttiger, 381 S W 3d 430 (Tex 2012) 35 Thota v Young, 366 S W 3d 678 (Tex 2012) 36, 37 Vi Tillman v Mem’! Hermann Hosp Sys , 440 S W 3d 203 (Tex App — Houston [14th Dist] 2013, pet denied) 52 Transcont’l Ins Co v Crump, 330 S W 3d 211 (Tex 2010) 49 United States v $129,727 00, 129 F 3d 486 (9th Cur 1997) 18 United States v $242,484 00, 389 F 3d 1149 (11th Cir 2004) 17, 25, 28, 29 United States v $369,980 00, 214 Fed Appx 432 (Sth Cir 2007) 17, 25 United States v $42,500 00, 283 F 3d 977 (9th Cir 2002) 17 United States v Delgado, 653 F 3d 729 (8th Cir 2011) 19 Walker v Gutierrez, 111 S W 3d 56 (Tex 2003) 36 Wojcik vy Wesolick, 97 S W 3d 335 (Tex App — Houston [14th Dist ] 2003, no pet ) 53 STATUTES 21USCA § 841 48 21USCA § 848 48 21USCA § 856 48 21USCA §952(a) 48 21USCA § 960 48 TEX CODE CRIM PROC ANN art 59 01(2) TEX CODE CRIM Proc ANN art 59 01(2)(B)(1) 9, 13, 46 Tex Cope CRIM Proc ANN art 59 01(2)(B)(1v) 13, 46 TEX CODE CRIM Proc ANN art 59 01(2)(D) 9, 46 Vu Tex CODE CRIM PROC ANN art 59 02 8 Tex Cope CRIM Proc ANN art 59 02(a) 46 TEX CODECRIM Proc ANN art 59 04 1 TEX CODE CRIM PROC ANN art 59 05(b) 10, 46 TEX CODE CRIM PRoc ANN art 59 05(d) 14, 34, 52 TEX CODE CRIM PROC ANN art 59 05(e) 57 Tex HEALTH & SAFETY CODE ANN § 481 112 46 TEx HEALTH & SAFETY CODE ANN § 481 120 46 Tex PENAL CODE ANN § 34 01(1)(A) 46 TEX PENAL CODE ANN § 34 01(1) 12 TEX PENAL CODE ANN § 34 01(4) 12, 46 TEX PENAL CODE ANN § 34 02(a)(1) 12, 46 RULES Tex R App P 9 4(g) Tex R App P 9 4() 59 Tex R App P 33 1(a) 54 Tex R App P 38 2(a)(1)(A) Tex R App P 391 Tex R App P 44 1(a) 49 Tex R Civ P 45 53 Tex R Civ P 85 54 Tex R Civ P 94 54 Tex R Civ P 98 54 Tex R Civ P 277 37, 42 Vill TO THE HONORABLE COURT OF APPEALS STATEMENT OF THE CASE On March 7, 2012, in cause number 2012-13933, the State of Texas (State), filed a Notice of Seizure and Intended Forfeiture of approximately $31,421 00, which the State seized from Fredi Azuara-Enriquez (appellant) on February 8, 2012 (CR — 5-8), see TEX CODE CRIM Proc ANN art 5904! Appellant answered the State’s petition for forferture and the case proceeded to a jury trial on October 29, 2013 On October 30, 2013, the jury answered the two questions submitted to it by the trial court affirmatively in the State’s favor, concluding that there was probable cause for seizing the $31,421 00 and that the money is contraband (CR — 68-72) Appellant filed a Motion for Judgment Notwithstanding the Verdict on November 7, 2013 (CR — 103-39) In response to said motion, the trial court entered a judgment 1n appellant’s favor on January 14, 2014 (CR -— 184-85) On February 17, 2014, the trial court vacated its previous judgment from January 17, 2014 (CR-— 186-87) Then, on February 18, 2014, the trial court entered a final ' The Clerk’s Record consists of one volume, heremafter referenced as (CR — [page number]) The Court Reporter’s Record consists of four volumes, which will be referenced as (RR [I-IV] — {page number]) Exhibits admitted at trial are contained within Volume IV of the Reporter’s Record Accordingly, State’s Exhibits will be referenced as (RR IV — SX [exhibit number]) and Defendant’s Exhibits will be referenced as (RR IV — DX [exhibit number]) References to appellant’s brief will be designated, (AB — [page number]) Judgment in the State’s favor, ordering that the $31,421 00 1s forfeited to the State (CR — 188-89) On March 20, 2014, appellant filed a Motion for New Trial, and a Motion for Reconsideration of the Respondent’s Motion for Judgment Notwithstanding the Verdict (CR — 190-96, 205-11) On May 13, 2014, the trial court dented appellant’s Motions for New Trial and for Reconsideration of the Respondent’s Motion for Judgment Notwithstanding the Verdict (CR — 317, 326) On May 18, 2014, appellant timely filed written notice of appeal to challenge the trial court’s final judgment, entered February 18, 2014 (CR - 326) + STATEMENT OF FACTS On February 7, 2012, appellant and Elmer Chacon boarded a bus in Doraville, Georgia—near Atlanta—that was headed to Houston, Texas (RR II — 89, 167), see (RRIV—SX 12) Ina zippered compartment at the bottom of a new bag, hidden beneath his clothing and other personal items and stashed among the metal rods and hardware components of the bag, appellant carried $31,421 00 in cash (RR II — 94, 97-100, 136-37), see (RR IV — SX 13-16) The money was largely comprised of small-denomination bills—including 1,222 $20 bills—and was divided into several bundles, all of which were double-wrapped with an under layer of cellophane and an outer layer of duct tape (RR II — 94, 99, 109), (RR II — 17, 31-32), see (RR IV — SX 15-16, 25) Like appellant, Chacon carried $39,222 00 in cash with him in a new bag (RR II — 103-04, 107-08), (RR III — 14- 16) Like the money that appellant was carrying, Chacon’s money was also concealed in a zippered compartment at the bottom of Chacon’s bag, under Chacon’s clothing and personal items, was comprised of mostly small- denomination bills, and was double-wrapped in cellophane and duct tape (RR III — 14-19, 31-32), see (RR IV — SX 21-22, 28) On the morning of February 8, 2012, Officers Arnold Alvarez and Lloyd Hicks—members of a high-intensity drug-traffickmg task force within the Narcotics Division of the Houston Police Department (HPD)—went to an Omnibus bus terminal in southeast Houston to monitor incoming buses and keep watch for bus passengers who might be drug or drug-money couriers (RR 72) Aware that drugs routinely flow into Texas from Mexico on evening buses, and thereafter travel out of Houston to other cities to the north and east, and that the money from the sales of those drugs flows back south and west from those cities to Houston, and eventually back to Mexico, on buses that arrive in Houston in the morning, the HPD drug-interdiction officers were particularly watchful that morning for possible drug-money couriers arriving on the inbound bus from Atlanta (RR II — 73, 163-64, 166), (RR III — 34) When the bus from Atlanta arrived at the Omnibus terminal, the officers observed that appellant and Chacon disembarked the bus together, one right behind the other, and that both men appeared to be “kind of looking around, scanning the area” for the police (RR II — 84-85, 118, 166-67), (RR II - 6) Alvarez also observed that appellant “stuck out” from the typical long-distance bus traveler because he was unusually well-dressed, with new shoes and a new bag (RR II — 82-83, 145), see (RR IV —SX 10) Alvarez then observed that appellant clutched hus bag in an oddly possessive manner, holding it tight to his chest “like he wasn’t going to let the bag go” (RR II — 84-85, 120, 154) Recognizing appellant’s and Chacon’s appearances and behaviors as common indicators of drug or drug-money trafficking and, thus, growing suspicious that appellant and Chacon might be drug- money couriers, Alvarez began to follow and watch appellant while Hicks monitored Chacon (RR II — 83-84, 166-68), (RR III — 6-7) Alvarez watched appellant proceed directly to the bathroom inside the bus terminal, still oddly holding his bag tight to his chest, and then “finally” exit the bathroom and sit right next to another person in the seating area of the station, acting “like he knew the guy or something” (RR II — 85-87, 113-15) Alvarez then observed appellant begin conversing with the other person while appellant simultaneously “watch[ed] [the officers] to see what [they] were gomg to do” (RR I-86) Alvarez noticed that appellant appeared to be “[e]xtremely nervous” and that he was “shaking huis leg up and down” and exhibiting other physical indicators of unease as he continued scanning the station for the police (RR II — 87-88, 115) Alvarez also saw that appellant did not appear to be taking steps to either leave the bus terminal, if Houston was appellant’s final destination, or to prepare to board another bus, otherwise (RR II — 87) Becoming ever-more suspicious of appellant, given Alvarez’s trainmg and experience with interdiction investigations, Alvarez decided to approach appellant and talk to him—a common step the officers employ when trying to detect drug- money couriers (RR II — 88) Alvarez walked up to appellant and, speaking to appellant in Spanish, identified himself as a police officer (RR II — 88-89) Alvarez asked appellant whether appellant would be willing to speak to him and appellant assented (RR II — 89) In response to Alvarez’s questions, appellant stated that he had arrived in Houston from Atlanta and that Houston was his final destination (RR II — 89) Appellant also reported to Alvarez that appellant intended to stay in Houston for only two days “to meet a friend[,]” which Alvarez considered another indicator of suspicious activity, given the length of the Atlanta- Houston bus trip (RR II — 90-91) Appellant then handed Alvarez appellant’s identification and bus ticket, at Alvarez’s request (RR I[-—90) Alvarez observed that appellant’s bus ticket was for one-way travel, and that 1t had been issued in the name of “Mauricio Lopez[,]” not appellant’s name—also factors consistent with drug- and drug-money couriermg (RR II — 91-92, 115), see (RRIV — SX 12) Alvarez asked appellant if he had any luggage with him, appellant said yes and pointed to his bag (RR II — 89, 93, 154), see (RRIV-—SX 10) Alvarez asked appellant if appellant had packed his bag and 1f he knew everything that was in it, again, appellant said yes (RR II — 93-94, 125-26) Alvarez then asked for appellant’s consent to search appellant’s bag, appellant agreed (RR II — 93-94, 125-26) At the very bottom of appellant’s bag, beneath all of appellant’s clothmng and personal items, Alvarez opened the zippered compartment that housed the bag’s metal rods and hardware and discovered the $31,421 00 of suspiciously double-wrapped bundles of money that was hidden there (RR II — 98-99, 136-37), see (RR IV — SX 13-16) The police also discovered the $39,222 00 that was similarly packaged and conealed in the bottom of Chacon’s bag (RR II — 103-05, 108, 117), (RR III — 14-17, 30-32), compare (RR IV — SX 15-16) with (RR IV — 21-22) Neither appellant nor Chacon claimed the money as their own property, knew how much money they were carrying, or offered the officers any legitimate source or explanation for the money (RR II— 101, 116), (RR II — 23-26) The officers called an HPD canine unit to the scene to have the drug dog conduct a sniff-search of appellant’s and Chacon’s bags (RR II-— 107) The dog gave a positive alert to the odor of drugs emanating from the bags, signifying to the a police that the money inside the bags had recently been in close proximity to a large quantity of drugs (RR III — 55-82) Then, while counting the money from appellant’s and Chacon’s bags, the officers observed that both sets of currency were comprised largely of small-denommation bills—mostly $20 bills—which further indicated to them that the money was derived from drug trafficking (RR II — 109-11, 117), (RR III — 18-22), see (RR IV — SX 25, 28) Concluding, based on the totality of the circumstances, that the $31,421 00 and $39,222 00 that appellant and Chacon carried, respectively, was drug money and, thus, that appellant and Chacon were drug-money couriers, the police seized the money as contraband and arrested both men for the criminal offense of money laundermg (CR -—5-8), (RR II- 117, 138, 154), (RR Il — 21-26) + SUMMARY OF THE ARGUMENT The evidence is legally and factually sufficient to support the jury’s conclusions that there was probable cause to seize the $31,421 00, and that the money 1s contraband The trial court did not err by submitting a single broad-form jury question regarding whether the $31,421 00 1s contraband because this forfeiture action involved only one legal lability theory—that the money 1s contraband, thus, Casteel 1s applicable Even if Casteel applies, the trial court did not violate Casteel because all legal theories submitted through the single broad-form question were valid Further, even if the complained-of allegation was mvalid, the error was harmless Appellant failed to preserve error regarding his complaint that Article 59 05(d) 1s facially unconstitutional But even if appellant did preserve error, appellant failed to meet his burden to rebut the presumption that the statute 1s valid by demonstrating that the statute, by its terms, always operates unconstitutionally + REPLY TO APPELLANT’S FIRST AND SECOND POINTS OF ERROR Appellant contends in his first and second points of error that the evidence 1s legally and factually insufficient to support the jury’s findings that probable cause existed to seize the money from him, and that the seized money 1s contraband Because these points of error nvolve the same evidence, the State will address them together m its response to appellant’s argument to avoid unnecessary repetition of facts and law I Forfeiture of Contraband Chapter 59 of the Texas Code of Criminal Procedure authorizes the State to seize and forfeit any property, ncludmg money, which 1s subject to forferture under the specific terms of that Chapter See generally TEX CODE CRIM PRoc ANN art 5902 Property 1s subject to forfeiture if 1t 1s “contraband” as that term 1s 8 defined in Article 59 01(2)—that 1s, when the property 1s used or intended to be used in the commission of certain enumerated crimes, including any felony under Chapter 481 of the Texas Health and Safety Code (related to controlled substances) or under Chapter 34 of the Texas Penal Code (money laundering), or when the property constitutes proceeds derived from such felonies See TEX CODE CRIM Proc ANN art 5901(2)(A)-(D), 822,922 00 v State, 853 S W2d 99, 101 (Tex App —Houston [14th Dist] 1993, writ denied) Specifically, money that 1s derived from or used or intended to be used in manufacturing, delivering, selling, or possessing a controlled substance 1s subject to forfeiture See TEX CODE CRIM Proc ANN art 5901(2)(B)(), TEX CODE CRIM Proc ANN art 5901(2)(D), State v $11,014 00, 820 S W 2d 783, 784 (Tex 1991) (“Money 1s subject to forfeiture 1f it 1s dertved form or intended for use in manufacturing, delivering, selling, or possessing a controlled substance ”) To prevail in a forfeiture proceeding, which 1s a civil im rem proceeding against the property to be forfeited, the State must satisfy a two-part test First, the State must show probable cause to seize the property by establishing a reasonable belief that a substantial connection or nexus exists between the property and the criminal activity enumerated in the forfeiture statute State v $90,235 00, 390 S W 3d 289, 293 (Tex 2013) Second, the State must prove by a preponderance of the evidence that the seized evidence 1s contraband and, thus, subject to forfeiture TEX CODE CRIM PROC ANN art 59 05(b), $165,524 78 v State, 47 S W 3d 632, 634 (Tex App —Houston [14th Dist] 2001, pet ref'd) The State may meet its burden in this regard with either direct or circumstantial evidence $11,014 00, 820 S W 2d at 785, $132,265 00 v State, 409 S W 3d 17, 23 (Tex App —Houston [Ist Dist ] 2013, no pet), $165,524 78, 47 S W3d at 634 Further, while the State’s evidence must amount to more than a mere surmise or suspicion regarding the illicit source or nature of the seized property, the State 1s not required to exclude every possible innocent means by which the property may have been acquired $132,265 00, 409 S W 3d 17, 23 (Tex App —Houston [Ist Dist] 2013, no pet ), $22,922 00 v State, 853 S W2d 99, 101 (Tex App —Houston [14th Dist] 1993, writ denied), $8,500 00 v State, 774 S W 2d 788, 792 (Tex App — Houston [14th Dist ] 1989, no writ) II Standards of Review and Applicable Law Regarding Legal and Factual Sufficiency in an Asset Forfeiture Case Evidence 1s legally msufficient to support a jury’s verdict when (1) there 1s a complete absence of evidence of a vital fact, (2) the reviewing court 1s barred from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered amounts to no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact City of Keller v Wilson, 168 S W 3d 802, 810 (Tex 2005) Ultimately, the question 1s whether the evidence adduced would permit any reasonable factfinder to reach the verdict under review 10 Keller, 168 S W 3d at 827 In making this determination, a reviewing court credits evidence which 1s favorable to the yury’s verdict if a reasonable factfinder would credit it, and disregards evidence contrary to the verdict unless a reasonable factfinder could not disregard 1t Jd Additionally, an appellate court may not substitute its yudgment for that of the factfinder so long as the evidence falls within the zone of reasonable disagreement Keller, 168 S W 3d at 822 By contrast, evidence 1s factually insufficient to support a jury’s verdict only when the evidence 1s so weak, or the finding 1s so contrary to the overwhelming weight and preponderance of the evidence, that the verdict 1s clearly wrong and unjust Pool v Ford Motor Co , 715 S W 2d 629, 635 (Tex 1986), $165,524 78, 47 S W3d at 637 When conducting a factual-sufficiency analysis, a reviewing court must consider and weigh all of the evidence, not just the evidence that supports the verdict Pool, 715 S W 2d at 635, $165,524 78, 47 S W 3d at 637 Further, as with a legal-sufficiency assessment, the court may draw any and all inferences reasonably capable of being drawn from the circumstances shown in evidence, but must not assess the witnesses’ credibility or substitute its yudgment for that of the factfinder See $165,524 78, 47 S W3d at 637 (“[W]e may not assess the witnesses’ credibility or substitute our yudgment for that of the jury, even if the evidence would clearly support a different result”), $22,922 00, 853 S W 2d at 101-03 11 I Legal Sufficiency of the Evidence To lawfully forfert the $31,421 00 at issue in this case, the State was required to show that it had probable cause to seize the property by establishing a reasonable belief that a substantial connection or nexus exists between the money and the criminal activity enumerated in the forfeiture statute Further, the State was also obligated to prove by a preponderance of the evidence that those funds are contraband, that 1s, for purposes of this case, that the money was used in, intended to be used in, or derived from the commission of any felony under Sections 481 112 or 481 120 of the Health and Safety Code— e , manufacturing, delivering, selling, or possessing a controlled substance—or that the money was used 1n, intended to be used in, or derived from the commission of any felony under Section 34 02 of the Penal Code—ie, money laundering, or the knowing acquisition, concealment, possession, transfer, or transportation of the proceeds of criminal actrvity which constitutes any felony under Texas or federal law” (CRI- ? Under Chapter 34 of the Penal Code, a person commuts the felony offense of money laundering if he knowingly “acquires or maintains an interest in, conceals, possesses, transfers, or transports the proceeds of criminal activity[ J” TEX PENAL CODE ANN § 34 02(a)(1) “Criminal activity” for purposes of the money laundering statute consists of any offense or preparatory offense that 1s classified as a felony under Texas or federal law, or that 1s punishable by confinement for more than one year under the laws of another state TEX PENAL CopE ANN § 3401(1) “Proceeds” of such crimmal activity consists of the funds acquired or derived directly or indirectly from, produced through, realized through, or used in the commission of that activity TeX PENAL CODE ANN § 34 01(4) 12 69-70), see TEX CODE CRIM PRoc ANN art 59 01(2)(B)(G), TEx CODE CRIM Proc ANN art 59 01(2)(B)(1v), $11,014 00, 820 S W 2d at 784 Stated another way, to prove that the $31,421 00 is contraband in this case, the State was required to demonstrate either (1) that it 1s direct drug money that was used in, intended to be used it, or derived from drug traffickmg committed in violation of Sections 481 112 or 481 120 of the Texas Health and Safety Code, or (2) that 1t laundered drug money because it was the proceeds of any felony drug- trafficking offense under Texas or federal law, which were being transported, concealed, possessed, or transferred through Texas Contrary to appellant’s assertion, the State was not restricted to proving violations of only Sections 481 112 or 481 120 of the Health and Safety Code as the underlying felonious “crimmal activity” for the evidence to be sufficient under the State’s money- laundering factual theory, rather, any drug-trafficking offense that was a felony under Texas or federal law could have supported the State’s money-laundering allegation This 1s so because the State could prove that the money 1s contraband because of its ties to drug trafficking entirely through circumstantial evidence, and because the State was not required in the forfeiture suit to identify or prove the specific drug offense or offenses that the currency was used in, intended to be used in, or was derived from, prove how, when, or where any such drug offense or offenses were committed, prove who may have employed or solicited appellant to 13 act as a drug-money courier, if appellant was not acting alone, or prove that appellant had ever been charged or convicted of crime underlying the forfeiture action See TEX CODE CRIM Proc ANN art 59 05(d) (“A final conviction for an underlying offense is not a requirement for forfeiture under [Chapter 59 of the Texas Code of Criminal Procedure] ”), $22,922 00, 853 S W 2d at 102 (stating that “[t]he State need only prove by a preponderance of the evidence that the seized money was derived from a felonious offense[,]” and “[t]herefore, the fact that [the respondent] was not charged with a felony or that the amounts of marihuana found were below felony amounts 1s not dispositive ”), $162,950 00 v State, 911 S W 2d 528, 529-30 (Tex App —Eastland 1995, writ denied) (explaining that when there 1s no direct evidence linking seized funds to illegal activity, the State must present sufficient circumstantial evidence of that connection, but that “[t]he State does not have to prove that a specific crime was committed”), Spurs v State, 850 S W 2d 611, 613-15 (Tex App —Tyler 1993, writ denied) (holding that the State was not required to identify or prove actual sales or deliveries of marijuana to substantiate forfeiture of seized money because “the issue before the [factfinder] was not whether the State could prove the criminal offense of delivery of a controlled substance beyond a reasonable doubt, but whether, by a preponderance of the evidence, the record show[ed] that the money was derived from the sale, 14 manufacture, distribution, delivery, or other commercial undertaking violative of [the Texas Controlled Substances Act] ”) In this case, the jury’s verdicts that there was probable cause to seize the $31,421 00 from appellant, and that that seized cash 1s contraband under either of the alleged factual theortes—both of which ultimately required proof that the forferted money was used in, was intended to be used in, or was derived from the criminal activity of illegally trafficking felonious quantities of drugs in violation of Texas or federal law—is supported by legally-sufficient evidence When assessing the sufficiency of the evidence in a forfeiture case involving seized currency which, as here, 1s contraband because of its ties to drug trafficking, appellate courts have considered the followmg non-exhaustive factors (1) the proximity of the money to drugs or to evidence of drug trafficking, (2) evidence that the money was previously in contact with or in close proximity to drugs, e g , through a narcotics- detecting canine alert, (3) suspicious activity consistent with drug trafficking, (4) the amount of money at issue, and (5) the presence of expert testimony concerning, the substantial connection or nexus between the money and criminal activity See $43,774 00 v State, 266 SW 3d 178, 186 (Tex App —Texarkana 2008, pet denied), Antrim v State, 868 S W 2d 809, 814 (Tex App —Austin 1993, no writ), see also Acosta v State, 429 S W 3d 621, 625-32 (Tex Crim App 2014) All of 15 these factors support the jury’s conclusion that the $31,421 00 forfeited in this case 1s contraband 1 Proximity of the money to drugs or to evidence of drug trafficking The $31,42100 was found in close proximity to evidence of drug trafficking—namely, evidence of concealment—despite that there is no evidence that appellant had drugs or drug paraphernalia on his person or in his bag First, the record demonstrates that the money was wrapped in a highly suspicious manner, with two different layers of materials, before 1t was concealed inside appellant’s bag each bundle of cash was first wrapped in green, plastic cellophane, and then was wrapped a second time in gray duct tape (RR II — 94), see (RR IV — SX 15-16) Aside from the intrinsically-suspect nature of the wrapping, itself, Alvarez and Hicks testified at trial that, given their substantial training and experience in investigating drug-trafficking crimes, this method of wrapping currency 1s significant evidence that the funds are drug money because drug dealers, drug couriers, and drug-money couriers commonly package money in that manner or in a substantially-similar manner in attempt to prevent police drug dogs from smelling the odor of drugs emanating from the money (RR II ~ 100, 116, 162), (RR III ~ 14, 17, 31-32), see (RR II — 79-80) Appellate courts in Texas and other states, as well as federal courts, have widely agreed that packaging cash in such a way 1s potent circumstantial evidence 16 that the money was used in, was intended to be used in, or was derived from drug trafficking even if the wrapping, alone, may not suffice to definitely establish that illicit connection See Acosta, 429 S W3d at 630 (affirming that “packaging, especially that designed to fool the nose of a drug dog, is potent evidence from which it can be inferred that a nexus exists between money and drug activity[,]” and noting that “[t]he packaging in [that] case—vacuum sealing—is widely regarded as indicatmg a conscious desire to prevent detection by drug dogs »), $43,774 00, 266 S W 3d at 186 (finding that money wrapped 1n plastic bags was probative evidence connecting the money to drug trafficking), see also United States v $369,980 00, 214 Fed Appx 432, 433-34 (Sth Cir 2007) (finding the evidence sufficient to support forfeiture of money when, among other evidence, the record showed that the money was double-wrapped in cellophane and duct tape), United States v $242,484 00, 389 F 3d 1149, 1162 (11th Cir 2004) (agreeing that forfeited money was highly suspicious and consistent with drug proceeds when it was wrapped in cellophane-type material), United States v $42,500 00, 283 F 3d 977, 982 (9th Cir 2002) (finding it significant that forfeited money was wrapped in cellophane, which, “[uJnlike a purse or money pouch, 1s not a normal repository for carrying large amounts of money[,]” because cellophane “is largely impermeable to gas, [and] 1s commonly used to conceal the smell of drugs and avoid detection by drug dogs ”), United States v $129,727 00, 129 F 3d 486, 491 17 (9th Cir 1997) (acknowledging that a strong nexus between drug trafficking and drug money “was provided by the distinctive manner in which the currency was wrapped in fabric softener sheets and plastic wrap[,]” which “[t]he narcotics detail recognized as an indication of drug-related activity”) So, given that it may be rationally inferred that the numerous distinctrvely-wrapped bundles of money found in appellant’s bag were packaged with the conscious intent to avoid detection by a drug dog and, thus, were consistent with well-known drug- and drug-money-trafficking practices, the evidence pertaining to the secretive packaging of the forfeited money supports the yury’s conclusion that the funds are contraband Second, also evincing that appellant’s cash 1s contraband, 1s the fact that the bundles of suspiciously-wrapped money were stashed mside a zippered compartment in appellant’s bag, hidden underneath appellant’s clothing and other items (RR II — 94, 98-99, 136-37), (RR Ill — 30), see (RR IV — SX 13-15) Though the zippered section of appellant’s bag wasn’t a “false bottom” or other compartment that was entirely concealed from view or wholly inaccessible, the officers’ testimony and the admitted photographs of the bag show that 1t was not an area where a person would typically store personal 1tems in the bag, given that the shallow area was plainly intended to house only the metal rods and other physical hardware for the bag (RR II — 98-99, 136-37), see (RR IV — SX 14-15) Thus, 18 appellant or whoever packed appellant’s bag made a conscious effort to conceal the bundles of money—a fact which 1s consistent with drug trafficking and, thus, support’s the jury’s conclusions regarding the money-drug nexus and the nature of the money as contraband See $43,774 00, 266 S W 3d at 186 (finding evidence of a hidden compartment to be significant evidence supporting forferture, given that “i]t 1s consistent with the secretion of drugs, money, or both”), Cantu v State, Nos 13-04-146-CR, 13-04-148-CR, 2005 WL 1706507, at *1-2 (Tex App— Corpus Christi-Edinburg July 14, 2005, no pet) (mem op, not designated for publication) (finding the evidence legally and factually sufficient to support the defendant’s conviction for money laundering when, among other factors, the cash was found hidden in the engine compartment of the defendant’s car), see also United States v Delgado, 653 F 3d 729, 732-33 (8th Cir 2011) (finding large amounts of cash wrapped in cellophane and hidden im various locations to be sufficient evidence in a money-laundering case) 2 Evidence that the money was previously in contact with or in clos proximity to drugs, e g , through a drug-dog alert The record establishes that Houston Police Officer Piel’s narcotics-detecting canine partner, Diego, alerted to the odor of drugs emanating from appellant’s and Chacon’s bags—which still contained the numerous bundles of cash seized from the two men—and that Diego did not alert to anything else in the enclosed room where the bags were laid for Diego to sniff (RR III — 60-82), see (RR II — 107-08) 19 (demonstrating that the money was not removed from appellant’s and Chacon’s bags and counted until after the canme-sniff search was done) Piel testified that Diego 1s trained and certified by the National Narcotic Detector Dog Association (NNDDA) to detect and alert to the odors of cocain