Reversed and Rendered in Part, Reversed and Remanded in Part, and 

Majority and Concurring Opinions filed November 24, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00385-CV

APPROXIMATELY $31,421.00, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2012-13933

C O N C U R R I N G O P I N I O N

Under the applicable standard of review and the charge submitted to the 

jury, the trial evidence is legally insufficient to support the jury’s finding that the 

money seized from the claimant is contraband. Therefore, the proper course is to 

reverse the forfeiture judgment, render judgment ordering the State to return the 

seized property, and remand for further proceedings. Because the majority reaches 

this result, I join in the court’s judgment, but I respectfully decline to join the 
2

majority opinion. My analysis is narrower.

In his second issue, claimant Fredi Azuara Enriquez argues that the trial 

evidence is legally insufficient to support the jury’s finding that the money seized 

from him is contraband. The State did not object to this part of the jury charge, 

and this court measures the sufficiency of the evidence under the charge given, 

even if it does not correctly state the law.1 

Under the charge given, the money is contraband if it was used or intended 

to be used in the commission of one of the following felony offenses or if the 

money was the proceeds gained or acquired from the commission of one of these 

offenses: 

(1) knowingly or intentionally delivering or possessing with intent to 

deliver a controlled substance, including cocaine, methamphetamine, 

and heroin, or 

(2) knowingly or intentionally delivering more than one-fourth of an 

ounce of marijuana. 

Under the charge given, the money also is contraband if it was used or intended to 

be used in the commission of the felony offense of knowingly acquiring or 

maintaining an interest in, concealing, possessing, transferring, or transporting the 

proceeds of any offense classified as a felony in Texas or in the United States of 

America. 

At trial, Officer Piel testified that it was probable that the drug-detection dog 

alerted to Enriquez’s bag because the bag had been in recent proximity to a large 

 

1

See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding that appellate court could not 

review the sufficiency of the evidence based on a particular legal standard because that standard 

was not submitted to the jury and no party objected to the charge on this ground or requested that 

the jury be charged using this standard); Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc., 201 

S.W.3d 272, 283–86 (Tex. App.—Houston [14th Dist.] 2006, no. pet.) (reviewing sufficiency of 

evidence based on unobjected-to jury instruction and rejecting various arguments based on 

different legal standards).
3

amount of controlled substances. There is no evidence that the drug-detection dog 

alerted to the money or that the money was inside Enriquez’s bag when the dog 

alerted to the bag. Nothing in the record tells us what controlled substance the dog 

detected. The dog was trained to alert to heroin, cocaine, methamphetamines, and 

marijuana. Presuming that the evidence is legally sufficient to support a finding 

that the money had recently been near a large amount of controlled substances, the 

evidence is still lacking because the large amount of controlled substances may 

have been marijuana being used in a criminal enterprise in which the marijuana 

was delivered in amounts of less than one-fourth of an ounce, which would not 

constitute a felony offense. 

Considering the evidence in the light most favorable to the challenged 

finding, indulging every reasonable inference that would support it, crediting 

favorable evidence if reasonable jurors could, and disregarding contrary evidence 

unless reasonable jurors could not, the trial evidence would not enable reasonable 

and fair-minded people to find that the money is contraband under the charge 

submitted to the jury.2 Therefore, the evidence is legally insufficient to support the 

jury’s finding that the seized money is contraband. 

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Jamison and Busby (Jamison, J., 

majority).

 

2

See City of Keller v. Wilson, 168 S.W.3d 802, 823, 827 (Tex. 2005).