1

CASE NO. 14–14–00385–CV 

IN THE FOURTEENTH COURT OF APPEALS, 

HOUSTON, TEXAS 

 

APPROXIMATELY $31,421.00,

Appellant 

V.

STATE OF TEXAS,

Appellee

 

On Appeal from the 157th Judicial District Court, 

 of Harris County, Texas, Cause No. 2012–13933 

 

APPELLANT’S RESPONSE TO MOTION FOR EN BANC RECONSIDERATION

TO THE HONORABLE FOURTEENTH COURT OF APPEALS: 

Introduction 

 The State rehashes and regurgitates the same tenuous claims in its 

motion for rehearing that the panel correctly rejected in reversing the jury’s 

finding that the money seized from Enriquez was contraband. The State’s 

reurged claims do no better the second time around. The State hangs its hat 

on suspicion, hunches, and speculation—none of which constitutes 

ACCEPTED

14-14-00385-cv

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

12/18/2015 3:14:11 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 12/18/2015 3:14:11 PM CHRISTOPHER A. PRINE Clerk
2

evidence. The following evidence actually in the record—mostly ignored by 

the State—demonstrates just how flimsy the State’s case is:

 The officers did not find any drugs, drug paraphernalia, or guns 

in Enriquez’s bag, much less any marijuana, heroin, cocaine, or 

methamphetamine. (2 RR at 145:18–146:5).

 The lead officer, Arnold Alvarez, admitted he had no evidence

of the alleged underlying criminal activity (illicit drug 

transactions) relied upon by the State for forfeiture.

 The canine handler admitted the dog alerted to Enriquez’s 

bag—and not the money seized from Enriquez. (3 RR at 69:10–

70:18; 82:5–7) (“Did Diego alert to the bag or did he alert to the 

money?” ... “He alerted to the bag.”).

 The canine handler admitted that the dog alert merely gave rise 

to a suspicion that illegal narcotics were recently in or around 

the bag. (3 RR at 75:14–76:3) (“I guess it would be suspicion 

that narcotics was around or in.”).

 Both Enriquez and Chacon were no–billed by the grand jury 

one month after their arrests. (DX 2; DX 3).

 The State—represented by the same district attorney’s office 

that prosecuted the forfeiture proceedings—did little to pursue 

criminal charges against this alleged drug money courier, as the 

State elected to not call any of the officers involved in the 

seizure of Enriquez’s bag to testify before the grand jury even 

though they were presumably available. (2 RR at 112:10–14; 3 

RR at 22:20–23:4; 71:24–72:11).

Despite this evidence—mostly comprised of admissions by the 

officers—the State claims that “the cumulative force of all the evidence, 

under the totality of the circumstances,” leads to the conclusion that the 

evidence is legally sufficient. But the “evidence” and “circumstances” cited 
3

by the State are nothing more than rank suspicion and impermissible 

inference stacking, neither of which constitutes competent evidence. 

Argument & Authorities

The panel correctly determined that the evidence is legally 

insufficient to support the jury’s finding that the money seized from 

Enriquez was contraband. To establish that the money was contraband, the 

State was required to prove the money was used or intended to be used in 

the commission in certain specified felony offenses. In other words, the 

State was required to show that the money was connected to criminal 

activity. The State failed to do so.

A. The lead officer admitted he had no evidence of the 

alleged underlying criminal activity giving rise to the 

seizure.

The State’s theory in this case was that Enriquez was transporting the 

proceeds of drug transactions from Atlanta to Mexico. (2 RR at 51:22–

52:10) (opening statement); (3 RR at 26:5–27:11, 34:3–8 (officers claimed 

that drugs are sold in the Atlanta area and then the money is brought back 

to Mexico); (3 RR at 111:10–11, 113:3–5, 117:12–20, 119:17–19, 123:16–18) 

(closing argument). The State’s theory was unsupported by any competent 

evidence. The lead officer who seized the money from Enriquez admitted as 

much.
4

As an initial matter, the officers did not find any drugs, drug 

paraphernalia, or guns in Enriquez’s bag, much less any marijuana, heroin, 

cocaine, or methamphetamine. (2 RR at 145:18–146:5). It is therefore not 

surprising that Arnold Alvarez—the lead officer in this case—admitted 

that he had no evidence that the alleged underlying criminal activity, 

drug transactions, ever occurred. To be clear, Alvarez didn’t say he lacked 

direct evidence of any drug deal occurring. Nor did Alvarez say he had 

circumstantial evidence that a drug deal occurred. Alvarez directly and 

unequivocally admitted he had no evidence that the “drug deals” giving rise 

to the seizure actually occurred. (2 RR at 152:1–23). Alvarez admitted (1) he 

didn’t know where the alleged drug deals took place, (2) he had no idea who 

was involved, (3) he had no idea how much money was exchanged, and (4)

he had no idea how much drugs were exchanged. (Id.). And Alvarez 

admitted that he had no evidence that any such drug deal even happened. 

(Id.). 

Alvarez’s admissions cannot be ignored. Yet the State failed to 

address these admissions in its brief and again failed to address them in its 

motion for rehearing. The State offers no explanation as to how the 

evidence is legally sufficient to establish that the money was the proceeds of 

criminal activity, i.e., illegal drug transactions, when its lead officer 
5

admitted he had no evidence that the alleged criminal activity ever 

occurred. The State cannot escape these fatal admissions despite its best 

efforts to ignore them. If there is no evidence of the requisite criminal 

activity, then there is no evidence the money was the proceeds of criminal 

activity. 

B. The dog alert is no evidence that the money was the 

proceeds of criminal activity.

The State relies on an alleged dog alert to support the jury’s finding 

that the money was contraband. Specifically, the State claims its canine 

handler testified that the reason the dog alerted to Enriquez’s bag was 

“likely because the money inside the bags had recently been in close 

proximity to a large amount of drugs.” Mtn. Recon. At 10, ¶ 17. This 

testimony is nowhere in the record. Regardless, the State again ignores the 

actual evidence in the record that dictates the dog alert cannot constitute 

evidence that the money seized from Enriquez was contraband.

As an initial matter, Enriquez must address the State’s 

misrepresentation of the record. The State claims its canine handler 

testified that the reason the dog alerted to Enriquez’s bag was “likely 

because the money inside the bags had recently been in close proximity to a 

large amount of drugs.” Mtn. Recon. At 10, ¶ 17. This testimony is nowhere 
6

to be found in the record. The canine handler’s actual testimony was that 

the dog alerted to Enriquez’s bag, as evidenced by the following exchanges:

Q. And what happened?

A. Diego did a sniff of that luggage. And when he 

sniffed at the scene, his breathing tail [sic] stopped 

and he sat and stared at the piece of luggage giving 

me an alert.

Q. What does that indicate to you?

A. That he is getting an odor of narcotics emulating 

[sic] from that piece of luggage.

****

Q. Okay. And again, as a trained and experienced 

narcotics canine handler, Diego’s alert means what 

to you?

A. He is telling me that he’s sniffed an odor of 

narcotics coming from the object that he’s alerting 

to.

Q. What does that mean about that object?

A. It means that there [are] odors of narcotics 

emulating [sic] from that object.

****

Q. My question is: Does Diego’s alert prove [as] a fact 

that narcotics [were] in the bag or does it just rise—

give rise to a suspicion that narcotics were around 

the bag?
7

A. His alerts are coming from the bag itself, from the 

item itself. Whether it’s an exterior or interior, he 

doesn’t —I have no way of knowing.

(3 RR at 69:15–21); (Id. at 71:11–18); (Id. at 75:7–13). 

As the Court can see, the canine handler testified that the dog alerted 

to Enriquez’s bag, and not to any money that may have been inside the bag.

Lest there be any doubt as to what the dog alerted to, whether the bag or 

the money, the canine handler testified as follows:

Q. Did Diego alert to the bag or did he alert to the 

money?

A. He alerted to the bag.

(3 RR at 82:5–7).1

And to put a finer point on it, the canine handler testified that he 

didn’t know whether the money was even in the bag at the time of the dog 

sniff:

Q. Do you know whether or not the money was still in 

the bags when Diego did the search?

A. No.

Q. You don’t know?

A. No.

 

1

 In other cases, the canine handler, after an initial alert, removed the suspected money 

from a suitcase or a box and had the canine search a second time to confirm that the dog 

actually alerted to the money, as opposed to an odor emitting from a suitcase or box. See 

State v. $11,014.00, 820 S.W.2d 783, 785 (Tex. 1991); Antrim v. State, 868 S.W.2d 809, 

813 (Tex. App.—Austin 1993, no writ). This was not done in this case.
8

(3 RR at 81:22–82:1).

There is no evidence that the dog alerted to the money in Enriquez’s 

bag or that the dog alerted to the bag because the money inside the bags 

had recently been in close proximity to illegal narcotics. Any claim to the 

contrary belies the record.

Regardless, the dog alert is not evidence. As an initial matter, a 

positive alert by drug detection dog, standing alone, does not constitute 

evidence that money was used in a drug deal. $43,774.00 U.S. Currency v. 

State, 266 S.W.3d 178, 184 (Tex. App.—Texarkana 2008, pet. denied); 

$80,631.00 v. State, 861 S.W.2d 10, 12 (Tex. App.—Houston [14th Dist.] 

1993, writ denied).2 Such evidence is of minimal probative value. See 

United States v. $506,231 in U.S. Currency, 125 F.3d 442, 453 (7th Cir. 

1997).

Second, and perhaps most important, the canine handler admitted 

the dog’s alert merely gave rise to a suspicion that the bags were in recent 

 

2 The probative value of a canine alert is minimal because of widespread contamination 

of currency. See United States v. $30,600.00, F.3d 1039, 1042–43 (9th Cir. 1994) 

(Study showed that 97% of bills taken from various cities throughout the United States 

tested positive for cocaine; another study showed that 90% of all cash in the United 

States contained sufficient quantities of cocaine to alert a narcotics detection dog; yet 

another study found that an average of 96% of the analyzed bills taken from various 

cities throughout the United States tested positive for cocaine).
9

contract with narcotics, a suspicion that requires something else to confirm 

the presence of narcotics:

Q. That wasn't my question. It was probably poorly 

phrased. My question is: When Diego gives an alert, 

that doesn't prove that narcotics were in the bag. It 

just gives rise to a suspicion that narcotics were in 

the bag or around the bag. Correct?

A. I guess it would be suspicion that narcotics was 

around or in.

Q. And do you have to do something further to confirm 

whether or not narcotics was in the bag or around 

the bag? Correct?

A. The case agents do, yes. I just notify the case agents 

of the alert, that there is odor from narcotics coming 

from whatever it is and then the case agents take it 

from there.

(3 RR at 75:14–76:3). Even though such tests were probably available, no 

tests were run on the money or the bag seized from Enriquez to confirm 

whether the money or the bag actually contained the odor of narcotics. (2 

RR at 151:8–19). The State ignored these admissions in its brief and again 

ignored them in its motion for rehearing.

At best, the State established that the dog alerted to Enriquez’s bag, 

which gave rise to a suspicion that illegal narcotics were in or around the 

bag. But suspicion is not evidence. Regal Fin. Co., Ltd. v. Tex Star Motors, 

Inc., 355 S.W.3d 595, 603 (Tex. 2010); Akin, Gump, Strauss, Hauer & Feld, 
10

L.L.P. v. National Dev. and Research Corp., 299 S.W.3d 106, 115 (Tex. 

2009). And thus, the dog alert is no evidence that the money seized from 

Enriquez was in recent proximity to illegal narcotics. 

C. Enriquez is being punished without the State even 

trying to prove he did anything wrong.

It must be noted that Enriquez is being punished without the State 

proving he did anything wrong. Enriquez is presumed to be innocent. TEX.

PEN. CODE § 2.01 (“All persons are presumed to be innocent and no person 

may be convicted of an offense unless each element of the offense is proved 

beyond a reasonable doubt.”). The grand jury didn’t find probable cause to 

indict him and thus, the grand jury no–billed him. (DX 2). Enriquez has 

never had to answer any criminal charges related to this incident; Enriquez 

is an innocent owner of the money. 

Nor did the State aggressively try to prosecute Enriquez—an alleged 

money courier—for any alleged crime they now claim justifies the forfeiture 

of his property. Specifically, the State—represented by the same district 

attorney’s office that prosecuted the forfeiture proceedings—did little to 

pursue criminal charges against this alleged drug money courier, as the 

State elected to not call any of the officers involved in the seizure of 

Enriquez’s bag to testify before the grand jury even though they were 

presumably available. (2 RR at 112:10–14; 3 RR at 22:20–23:4; 71:24–
11

72:11). It appears that the State was more interested in keeping the money 

than prosecuting any alleged crime. So Enriquez is being punished. Austin 

v. United States, 509 U.S. 602, 622 (1993) (forfeiture has been viewed and 

understood as a “payment to a sovereign as punishment for some 

offense.”). But he shouldn’t be. The State presented no evidence to establish 

that the money seized from Enriquez was contraband. 

D. The State’s reliance on Enriquez’s suspicious actions is 

unavailing.

The State’s motion for rehearing cites evidence of Enriquez’s actions, 

which the State claims is evidence he was part of a criminal enterprise. The 

State’s “evidence” is nothing more than rank suspicion and speculation that 

doesn’t constitute competent evidence. 

In its opening brief, the State used the term “suspicious” or a similar 

term no fewer than 13 times in its sufficiency analysis, best exemplified by 

the State’s claim that the “record teems with evidence of suspicious activity 

and circumstances which strongly support the jury’s findings.” But 

suspicion is not evidence.

The State relies on that same “suspicious” evidence in its motion for 

rehearing. For example, the State claims that Enriquez was “unusually 

well–dressed.” Mtn. Recon. at 10, ¶ 19(a). The State makes this claim 
12

despite Alvarez’s concession that Enriquez was wearing a tee shirt, like “one 

of those free tee shirts you probably get at the gym.” (2 RR at 145:6–9). 

The State also claims the evidence is sufficient because Enriquez was 

“travelling along a route that is notorious for two–way, drug and drug–

money trafficking.” Mtn. Recon. at 9, ¶ 16. That is, travelling from Atlanta 

to Houston is suspicious. Alvarez doubled down on this absurd claim by 

testifying that people travelling from Los Angeles, New York, Baltimore, 

Charlotte, Tampa, and probably any foreign country are likewise suspicious 

for the same reason. (2 RR at 131:1–132:2). But courts have wisely rejected 

these type of absurd claims. See United States v. $252,300.00 in U.S. 

Currency, 484 F.3d 1271, 1274 (10th Cir. 2007) (“Generalized allegations 

about ... ‘known drug destinations’ and ‘known drug routes’ do not provide 

a nexus to drugs on these facts.”); $130,510 in U.S. Lawful Currency v. 

State, 266 S.W.3d 169, 172 n. 5 (Tex. App.—Texarkana 2008, pet. denied) 

(“we are skeptical that such evidence [travelling on a certain route] offers 

any probative value to support the State’s case.”). 

The State also attempts to bolster its claim that Enriquez was part of a 

criminal enterprise by relying on alleged suspicious activity, such as 

“clutch[ing] his bag tightly,” making small talk with another person waiting 

in the bus station, appearing to be nervous, and shaking his leg. Mtn. 
13

Recon. at 11, ¶¶ 19 (c), (d), and (e)). But Alvarez admitted that this behavior 

was just as consistent with innocent behavior. Specifically, Alvarez 

admitted that if he were carrying $31,000 in cash, he too would hold his 

bag tightly. (2 RR at 120:6–11). Alvarez also conceded there is nothing 

suspicious about making small talk with another passenger and in fact, he 

had done so before in airports and bars. (Id. at 120:12–25). Alvarez also 

conceded that making small talk does not make a person a drug courier. 

(Id. at 121:1–2). As for Enriquez’s suspicious stretching and shaking of his 

leg, Alvarez admitted that Enriquez could have been stretching because he 

was tired from the long bus ride. (Id. at 122:2–9). In short, the State’s 

attempt to turn innocent behavior (or even suspicious behavior) into 

evidence falls flat. 

The State also tries to show that Enriquez was suspicious because he 

was allegedly “watching the officers” and “looking around the bus station 

for police officers.” Mtn. Recon. at 11, ¶ 19(d), (e). These claims are 

incredible for at least two reasons. First, the officers wore plain clothes—not 

their police uniforms. (2 RR at 163:13–14 (“We were in plain clothes.”). 

There is no evidence that Enriquez knew that Alvarez, Hicks, or any of the 

other officers—wearing plain clothes—were police officers until they 

approached him. Thus, the State’s claim that Enriquez was “watching the 
14

officers to see what they were going to do” lacks any factual basis because it 

assumes that Enriquez knew that the officers were in fact police officers. 

Second, the State’s claim that Enriquez was allegedly “watching the 

officers” and “looking around the bus station for police officers” would 

require knowing Enriquez’s state of mind. Without knowing Enriquez’s 

state of mind, any suggestion as to what he was thinking or looking for is 

nothing more than rank speculation, which is not evidence. Enriquez could 

have been looking for police officers. He could have also been looking for 

his ride. In fact, Alvarez admitted that Enriquez may have simply been 

looking for his ride. (Id. at 122:10–20). Thus, Enriquez’s looking around the 

bus station doesn’t prove anything.

Conclusion and Prayer

As the Court can see, the State relies on suspicion, speculation, and 

surmise to support its claim. But it is axiomatic that suspicion is not 

evidence. Regal Fin., 355 S.W.3d at 603; Akin, Gump, Strauss, Hauer & 

Feld, 299 S.W.3d at 115. The officers’ suspicion, conjecture, surmise, or 

guesswork is insufficient and thus, no evidence. Id.

Conversely, Enriquez directs the Court to actual evidence in the 

record that negates the State’s claims: (1) the officers did not find any 

drugs, drug paraphernalia, or guns in Enriquez’s bag, much less any 
15

marijuana, heroin, cocaine, or methamphetamine, (2) Alvarez’s admission 

that he had no evidence of the alleged underlying criminal activity (illicit 

drug transactions) being relied upon by the State for forfeiture, (3) the 

canine handler’s admission that the dog alerted to Enriquez’s bag—and not 

to the money seized from Enriquez, (4) the canine handler’s admission that 

the dog alert merely gave rise to a suspicion that illegal narcotics were 

recently in or around the bag, (5) Enriquez was no–billed by the grand jury, 

and (6) that the State—despite claiming that the “cumulative force” of the 

evidence supports a finding that the money was the proceeds of criminal 

activity—did next to nothing to pursue criminal charges against Enriquez, 

as the State elected to not call any of the officers involved in the seizure of 

Enriquez’s bag to testify before the grand jury. Aside from the absence of 

drugs and drug paraphernalia, the State continues to ignore and refuses to 

address this evidence—mostly admissions by its own officers. But how 

could the State effectively address this evidence? It is hard to compose an 

argument that there is legally sufficient evidence of criminal activity when 

your lead officer admits he has no evidence of any such criminal activity.

The Court should deny the State’s motion for rehearing.
16

Respectfully submitted,

LEYH, PAYNE & MALLIA, PLLC

By: /s/ Sean M. Reagan

Sean Michael Reagan

sreagan@lpmfirm.com

Texas Bar No. 24046689

9545 Katy Freeway, Suite 200

Houston, Texas 77024

Telephone: 713-785-0881

Facsimile: 713-784-0884

ATTORNEY FOR APPELLANT

Certificate of Service

I certify that a true and correct copy of this document has been served 

on all interested parties of record on this the 18th day of December 2015.

/s/ Sean M. Reagan

Sean M. Reagan

Certificate of Compliance

Under Rule 9.4 of the TEXAS RULES OF APPELLATE PROCEDURE, I certify 

that the foregoing document is a computer–generated document containing 

3,296 words. The undersigned relied upon the word count feature on his 

word processor in determining the word count.

/s/ Sean M. Reagan

Sean M. Reagan