## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-16-00450-CV

ONE 2006 HARLEY DAVIDSON MOTORCYCLE, VIN/1HD4CAM126K461441 APPELLANT

V. THE STATE OF TEXAS A PPELLEE

---------- FROM THE 355TH DISTRICTCOURT OF HOOD COUNTY TRIAL COURT NO. C2016119

---------- 

### MEMORANDUM OPINION 1

---------- Daniel Youngblood ap peals from the trial court’ s judgment forfeiting his 2006 Harley Davidson motorcycle to the St ate of Texas under chapter 59 of the Texas Code of Criminal Procedure. 2 Youngblood raises tw o issues: the evidence

1 See Tex. R. App. P. 47.4.

2 See Tex. Code Crim. Proc. Ann. arts . 59.01–.14 (West 2006 & Supp. 2016).2 is legally insufficient to support the tria l court’s finding that the motorcycle is contraband subject to forfeiture, and t he trial court’s judg ment violates the Excessive Fines Clause of the Eighth Amendment of the United States Constitution. Because we conclude that th e State produced sufficient evidence to support forfeiture and that Youngblood did not preserve his constitutional claim, we affirm the trial court’s judgment. Background Facts In April 2016, Hood County narcotic s investigators Spencer Batchelor and Ray Miller were surveilli ng Youngblood’s re sidence following claims from unnamed sources that he was transpor ting and selling methamphetamine. Batchelor would watch vehicles come and go from the residence and would contact drivers if they committed a traffic violation. Batchelor spotted Youngblood, whom Batchelor recognized because Youngblood was not wearing a helmet, riding a black Harley Davidson motorcycle. On his computer, Batchelor checked Youngblood’s driver’s license and noticed that it was suspended. He pulled up behi nd Youngblood and activated his emergency lights and sire ns to direct Youngblood to pull over to the side of the road. 3 Youngblood instead accelerated to fi fty miles per hour in a thirty-mileper-hour residential zone. After Youngblo od made a couple ofright-hand turns,

3 Batchelor was in a “marked patrol unit.”3 he looked back at Batchelor and waved at him as an indication for Batchelor either to follow or to pass him. Youngblood disputed Batche lor’s narrative, claiming instead that he was initially unaware that the police were following him because his motorcycle was too loud, his mirrors were too small, and he was not paying atte ntion to what was behind him. Youngblood also denied spe eding at any point during the time that Batchelor was following him. Youngblood further testifie d that Batchelor did not turn on his emergency lights and sirens until after Youngblood had made at least one right-hand turn onto another road. At that point, accordin g to Youngblood, he waved to Batchelor to fo llow him to his house beca use there was not a safe place to pull over. Youngblood proceede d to the back of his reside nce and stopped. Believing that Youngblood had been trying to evade him, Batchelor handcuffed Youngblood and then conf irmed that Youngblood wa s also driving without insurance. Batchelor placed Youngblood under arrest and inside a pocket of Youngblood’s shorts fo und a clear baggie containing a substance that Batchelor believed to be methamphetam ine, the discovery of which prompted Youngblood to utter “dammit.” Batchelor’s instinct s were right: the su bstance was later confirmed to be over two grams of me thamphetamine. Youn gblood maintained that either Batchelor or his partner Mille r planted the baggie of methamphetamine into his pocket and that he did not know whose shorts he was wearing.4 After Youngblood’s pursuit and arrest, the State fil ed a petition for the trial court to forfeit the motorcycle, supporting the petition with an affidavit by Miller. 4 After a short bench trial, and without stating the precise offense or facts warranting forfeiture, the trial court determined that the motorcycle was contraband and ordered its forfeiture to the State. Legal Sufficiency In Youngblood’s first issue, he argues that the evidence is legally insufficient to support forfeiture. In part icular, he argues that the affidavit that Miller signed and that the State attached to its petition coul d not be considered evidence supporting forfei ture and that the State failed to introduce sufficient evidence independent of the affidavit to support forfeiture based on claims of evasion of arrest or a felony drug offens e. The State, in response, concedes that Miller’s affidavit could not be used to uphold forfeiture, but the State argues that it nevertheless presented sufficient evidence at the bench trial to justify forfeiture. Standard of review We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fa ct, (2) the court is barred by legal or evidentiary rules from giving weight to the only evidence offered to prove a vital fact, (3) the ev idence offered to prove a vi tal fact is no more than a mere scintilla, or (4) the ev idence establishes conclusive ly the opposite of a vital

4 See Tex. Code Crim. Proc. Ann. art. 59.04(b) (requiring the State to attach to its forfeiture petition a sworn statement by a peace officer).5 fact. Ford Motor Co. v. Castillo , 444 S.W.3d 616, 620 (Tex. 2014) (op. on reh’g); Uniroyal Goodrich Ti re Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied , 526 U.S. 1040 (1999). In determining whether legally sufficient evidence exists to support the finding under review, we must c onsider evidence favorable to the finding if a reasonable factfind er could, and must disregard evidence contrary to the finding unless a re asonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas , 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson , 168 S.W.3d 802, 807, 827 (Tex. 2005). Anything more than a scint illa of evidence is legally sufficient to support the finding. Cont’l Coffee Prods. Co. v. Cazarez , 937 S.W.2d 444, 450 (Tex. 1996); Leitch v. Hornsby , 935 S.W.2d 114, 118 (Tex. 1996) . More than a sc intilla exists if the evidence furnishes some reasonab le basis for differi ng conclusions by reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co. , 77 S.W.3d 253, 262 (Tex. 2002) . Any ultimate fact may be proved by circumstantial evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993). The affidavit As a preliminary matter, some ambigui ty exists regarding Youngblood’s precise complaint about Miller’s affidavit. The thrust of his ar gument on appeal seems to be that the affidavit is insufficientas evidence because it is defective as an affidavit. Miller executed th e affidavit to support the State’s petition, swearing that “to the best of [his] informati on and belief . . . the [motorcycle was]6 contraband as defined by chapter 59 of the Texas Co de of Criminal Procedure.” Miller then proceeded to quote a signific ant portion of chapter 59, to give a detailed account largely co mporting with Batchelor’ s later testimony about Youngblood’s pursuit and arrest, and to provide a rudimentary basis for the classification of the mo torcycle as contraband. The affidavit’s defectivene ss, according to Youngblood, mainly stems from Miller’s claim that the mo torcycle meets the defini tion of contraband under chapter 59 based upon the “best of [his ] information and be lief.” Youngblood contends that the affidavit must be ba sed on the personal knowledge of the affiant rather than on the best of the affi ant’s information and belief, and he asks us to not “base forfeiture on Miller’s sworn statement.” The State agrees, albeit on different grounds, that the affidavit is insufficient evidence to support forfeiture and suggests that Youn gblood might have intended to assert the existence of a deficiency in the State’s pleadings rather than to merely chal lenge the affidavit’s evidentiary sufficiency. Affidavits ordinarily are written and executed outside a trial or hearing and therefore are considered hear say to the extent that they are offered to prove the truth of a matter asserted. See Tex. R. Evid. 801(d). A ffidavits that constitute hearsay are inadmissible as independent evidence in t he absence of some other statute, rule, or exception authoriz ing their evidentiary use at trial. See Tex. R. Evid. 802; Kenny v. Portfolio Recovery Assocs. , 464 S.W.3d 29, 33 (Tex. App.— Houston [1st Dist.] 2015, no pet.). We are unaware of any exception in a civil-7 forfeiture hearing for the admission of affi davits to prove or disprove any fact claimed by either party. Cf. Tex. R. Civ. P. 166a (permitting affidavits to provide evidentiary support in summary-judgment motions). Nevertheless, even if such an exce ption exists, neither the State nor Youngblood introduced the af fidavit as evidence at th e bench trial. Youngblood did refer to and read aloud a portion of the affidavit during his own live trial testimony, and that portion was of course evidence, bu t he neither introduced the entire affidavit as evidence nor indica ted that he intend ed to introduce it. Because the affidavit is in admissible as independent ev idence to prove the facts contained in it, and because even if it we re admissible, the affidavit was not in fact introduced or used as trial evidenc e, we need not de termine whether the affidavit is deficient in some way as to prec lude the trial court from relying on it to justify the forfeiture order. The State suggests that Youngblood perhaps intended to argue that his complaints about the affida vit were not meant solely to challenge its utility as evidence supporting forfeiture but also to indicate a potential third issue concerning a pleading-deficiency claim. If indeed anything about the affidavit equates to a deficiency in th e State’s pleadings, the State argues th at it still does not help Youngblood because he failed to preserve the alleged error for appeal. To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objectio n, or motion that states the specific grounds for the desired ruling, if not appa rent from the context of the request,8 objection, or motion. Tex. R. App. P. 33.1(a ). If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean , 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). The ob jecting party must also get a ruling— express or implied—from the trial court. Tex. R. App. P. 33.1(a)(2), (b); see Lenz v. Lenz , 79 S.W.3d 10, 13 (Tex. 2002). A party may not complain about an op ponent’s pleading deficiency if the party failed to bring the de ficiency to the trial court’s attention before the judgment was signed. See Tex. R. Civ. P. 90; In re D.T.M. , 932 S.W.2d 647, 652 (Tex. App.—Fort Worth 1996, no writ). This is also true when the alleged deficiency relates to a defect in an affidavit attached to the pleadings. Wade v. Superior Ins. Co. , 244 S.W.2d 893, 896 (Tex. Civ. App.—Eastland 1951, writ ref’d). We cannot find any indica tion that Youngbloood everobjected to or raised a deficiency in the State’s pleadings. Because Youngblood failed to make a timely request, objection, or motion to draw the trial court’s attention to some pleading deficiency, we agre e with the State that any such complaint is waived. As far as the affidavit is concerned, then, we agree with both Youngblood and the State that the trial court could no t have based its forfeiture judgment on the affidavit alone. If Youngblood mean t instead to argue that the State’s pleading itself was deficient because of the attached affidavit, that complaint is waived. But other evidence exists on which the trial court could have based its forfeiture order even without the affidavit, as we next discuss.9 Evading arrest Youngblood argues that without the be nefit of the affidavit, the State failed to present sufficient eviden ce to demonstrate that th e motorcycle is contraband subject to forfeiture under chapter 59. More specifically , he argues that the State failed to present sufficient evidence supporting an underlying felony as a requisite to classify the motorcycle as contraband—namely, byfailing to present evidence supporting an ev ading-arrest claim or a felony drug offense. “Contraband” is subject to forfeitu re. Tex. Code Crim. Proc. Ann. art. 59.02(a). Property is contraband if used in the commission of certain offenses, including felony-level evading arrest an d any felony under chapter 481 of the Texas Health and SafetyCode (the Texas Controlled Substances Act). Id. art. 59.01(2)(A)(ii), (B)(i). A final convicti on for an underlying offense “is not a requirement for forfeiture.” Id. art. 59.05(d). 5 Despite forfeiture itself being justifie d by certain criminal acts, forfeiture proceedings are civil in nature. See id. art. 59.05(a). Unlike criminal cases in which the State must prove guilt beyond a reasonable doubt, the State must instead prove only “by a pr eponderance of the evidence that property is subject to forfeiture.” Id. art. 59.05(b).

5 The 85th Texas Legislature declined to enact proposed changes to the law that would have done away with civil forfeitures and that would have required an underlying criminal conviction be fore property could be seized. See Tex. S.B. 380, 85th Leg., R.S. (2017).10 Felony-level evading arrest occurs wh en a person intentionally flees from a police officer while using a vehicle. Te x. Penal Code Ann. § 38.04(a), (b)(2) (West 2016); see Adetomiwa v. State , 421 S.W.3d 922, 927 (Tex. App.—Fort Worth 2014, no pet.). The State presented sufficient evidence to support forfeiture under the theory t hat Youngblood used the moto rcycle in attempting to evade arrest. Batchelor testified that wh en he pulled up beh ind Youngblood and activated his emergency lights and sirens, Youngblood responded by accelerating to fifty miles per hour in a thirty-mile-per-hour re sidential zone and by waving at Batchelor to follow or to pass him, evidence th at Youngblood was aware of Batchelor’s presence. At trial, Youngblood admitted to not immediately pulling over when he was awar e of Batchelor’s attemp t to detain him. And although Youngblood was not charged wi th or convicted of evading arrest, conviction is not required fo r forfeiture under chapter 59. Tex. Code Crim. Proc. Ann. art. 59.05(d). Moreover, the fact that Youngblood denied evading arrest does not change the analysis, for in a legal-sufficiency challenge we must disregard evidence contrary to the finding unless a re asonable factfinder could not. Cent. Ready Mix , 228 S.W.3d at 651. The record contains sufficient circumstantial evidence supporting a finding that Yo ungblood was attempting to evade arrest while riding a motorcycle. See Russell, 865 S.W.2d at 933; see also Griego v. State , 345 S.W.3d 742, 751 (Tex. App.—Amar illo 2011, no pet.) (holding that a defendant’s speed and the duration of the pursuit ma y show a defendant’s intent11 to evade arrest); Horne v. State , 228 S.W.3d 442, 446 (Tex. App.—Texarkana 2007, no pet.) (explaining that “anythin g less than prompt compliance with an officer’s direction to stop” ma y constitute evading arrest). Youngblood glosses over the evidence concerning the evading-arrest ground for forfeiture by me rely stating that “[t]he evas ion of arrest claim was not raised on appeal and should not be a basis for forfeiture.” But we must affirm the trial court’s judgment “if it can be upheld on any legal theory that finds support in the evidence.” In re W.E.R. , 669 S.W.2d 716, 717 (Tex. 1984). We conclude that the evidence is sufficient to support the motorcycle’s forfeiture as contraband on the basis that Youngblood used the motorcycle to evade arrest. Controlled substance Youngblood also contends that the State failed to present enough evidence to support forfeiture based on a violation of the Texas Controlled Substances Act. His more precise theory is that the State failed to show a nexus between his alleged posses sion of an illegal substance and the property (the motorcycle) subject to forfeiture. The Texas Contro lled Substances Act makes knowing or intentional possession of methamphetam ine a felony offense. Tex. Health & Safety Code Ann. §§ 481.102(6), .115(a) (West 2017). Possession of one to four grams of methamphetamine is a thir d-degree felony. Tex. Health & Safety Code Ann. § 481.115(c).12 To prove that property is contraba nd under chapter 59 , the State must establish a substantial nexu s or connection bet ween the property to be forfeited and some statutorily defined criminal activity. 1996 Cadillac v. State , No. 02-07- 00017-CV, 2008 WL 163552, at *4 (Tex . App.—Fort Worth Jan. 17, 2008, no pet.) (mem. op.) ( citing State v. $11,014.00 , 820 S.W.2d 783, 785 (Tex. 1991)). Youngblood contends that the substantial ne xus requirement is not satisfied here because there was “no testimony . . . that he was us ing the motorcycle as part of a drug transaction.” But the State may establish the required nexus by showing that a driver of a vehicl e was in mere possession of a felony weight of a controlled substance. 2009 Black Infiniti G3S v. State , No. 02-14-00342-CV, 2016 WL 4538553, at *3 (Tex. App.—Fort Worth Aug. 31, 2016, no pet.) (mem. op.) (collecting cases); State v. One 1992 Ford Explorer , No. 05-97-01023-CV, 2000 WL 225628, at *2 (T ex. App.—Dallas Feb. 29, 2000, pet. denied) (not designated for publication). That is, th e State did not have to prove that the motorcycle was used for both a drug tran saction and possession of a controlled substance—mere posses sion was sufficient. See 2009 Black Infiniti G3S , 2016 WL 4538553, at *3. Conclusion regarding evidentiary sufficiency In sum, the State produced legally sufficient evidence to justify forfeiture of the motorcycle as contraband on grou nds that Youngblood committed felony evading arrest or that he comm itted a felony drug offense. See Tex. Code Crim.13 Proc. Ann. arts. 59.01(2)(A)(ii), (B)(i), .02(a), .05(b); Ford Motor Co. , 444 S.W.3d at 620. We overrule Youngblood’s first issue. The Excessive Fines Clause of the Eighth Amendment In his second issue, Yo ungblood contends that the trial court violated the Excessive Fines Clause of the Eighth Amendment of the United States Constitution. See U.S. Const. amend. VIII. The State replies that (1) the Excessive Fines Clause does not apply to civil-forfeiture proceedings under chapter 59; (2) even if the Clause does apply, Youngblood failed to preserve the issue for appellate review; and (3) even if the Clause applied and Youngblood did preserve the issue, the forfeiture of the motorcycle was not unconstitutionally excessive. As a general rule, a consti tutional claim must have been asserted in the trial court to be raised on appeal. See Tex. R. App. P. 33.1(a); Dreyer v. Greene , 871 S.W.2d 697, 698 (Tex. 1993) (citing Wood v. Wood , 320 S.W.2d 807, 813 (Tex. 1959)); Walker v. Emps. Retirement Sys. , 753 S.W.2d 796, 798 (Tex. App.—Austin 1988, writ denied) (“A constitu tional challenge not raised properly in the trial court is waived on appeal.”). Th is rule extends to the Excessive Fines Clause of the Eighth Amendment in civil proceedings. See Romero v. State , 927 S.W.2d 632, 634 n.2 (Tex. 1996) (refusing to consider whether a civil forfeiture violated the Excessive Fines Clause because the issue was not preserved); White Lion Holdings, L.L.C. v. State , No. 01-14-00104-CV, 2015 WL 5626564, at *4 (Tex. App.—H ouston [1st Dist.] Se pt. 24, 2015, pet.14 filed) (mem. op. on reh’g) (“Both due-pr ocess and excessive-fines arguments can be waived. By failing to pres erve these arguments, Whit e Lion has waived them.” (footnote omitted)); see also Sample v. State , 405 S.W.3d 295, 304 (Tex. App.— Fort Worth 2013, pet. ref’d) (holding thatan appellant in a criminal appeal had failed to preserve an Eighth Amendment clai m by not raising it in the trial court). Youngblood raised the Ex cessive Fines issue for the first time in his appellate brief. By failing to raise an Eighth Amendment claim in the trial court, he failed to preserve error, thereby waivin g the issue. We overrule Youngblood’s second issue. Conclusion Having overruled both of Youngblood’s issues, we affirm the trial court’s judgment.

/s/ Elizabeth Kerr ELIZABETH KERR JUSTICE PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ. DELIVERED: October 26, 2017