Opinion issued November 19, 2020

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-19-00569-CV

———————————

AETEZAZ AHMAD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 149th District Court

Brazoria County, Texas

Trial Court Case No. 97304-CV

O P I N I O N

Background

In this civil forfeiture case, Brazoria County Narcotics Task Force officers 

seized $41,239 in cash, 103 complete gambling machines, and other items during 

the execution of a search warrant on Winner One Eleven Game Room in Alvin, 
2

Texas. The State first charged Aetezaz Ahmad with gambling promotion, keeping a 

gambling place, and possession of a gambling device, equipment, or paraphernalia.

See TEX. PENAL CODE §§ 47.03, 47.04, 47.06. These offenses are Class A 

misdemeanors. See id. The State began a civil forfeiture action under article 

59.01(2)(B)(xi) of the Texas Code of Criminal Procedure and filed an amended 

notice of seizure and intended forfeiture. TEX. CODE CRIM. PROC. art. 

59.01(2)(B)(xi); see TEX. PENAL CODE § 71.02(a)(2). In its pleadings, the State 

alleged that the seized property was contraband “used in the commission of 

organized criminal activity” as defined in “Chapter 71 of the Texas Penal Code” 

because Ahmad was charged with offenses “punishable as . . . Class A 

misdemeanor[s].” Later, the State reduced the gambling-promotion and keeping-agambling-place charges to two counts of gambling—a Class C misdemeanor. See

TEX. PENAL CODE §§ 12.23, 47.02(a), (d). Ahmad pleaded guilty. 

After Ahmad’s conviction, the State moved for summary judgment in the 

149th District Court of Brazoria County and attached an investigating officer’s

affidavit and documents filed in Ahmad’s criminal proceeding at the time of his plea. 

Ahmad objected and moved to strike the State’s summary-judgment evidence—

Officer J. Edwards’s affidavit—as hearsay. Ahmad’s objections and motion were 

overruled by operation of law. The trial court granted the State’s summary-judgment

motion and ordered the seized money and property forfeited to the “Brazoria County 
3

Narcotics Task Force . . . in accordance with article 59.06 of the Texas Code of 

Criminal Procedure.”

On appeal, Ahmad raises four issues. First, Ahmad contends that the trial court 

lacked jurisdiction over the civil forfeiture action while the criminal prosecution was 

pending. Second, he contends that the trial court erroneously overruled his 

objections to the State’s summary-judgment evidence. Third, he asserts that there 

was insufficient evidence to support summary judgment. Fourth, he asserts that the 

forfeiture order violated his constitutional rights against excessive fines and fees 

under Texas law and the Eighth Amendment of the United States Constitution.

Subject Matter Jurisdiction

In his first issue, Ahmad argues that the trial court lacked subject matter 

jurisdiction to order the forfeiture under article 18.18 of the Texas Code of Criminal 

Procedure. Ahmad contends that the State failed to show, as required under article 

18.18, that there was no prosecution or conviction following the seizure. We note, 

however, that Ahmad does not argue that the trial court lacked subject matter 

jurisdiction under Chapter 59, which was the basis of the forfeiture action here.

A. Standard of review

“Subject-matter jurisdiction is essential to a court’s power to decide a case.” 

City of Hous. v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013). Subject matter jurisdiction 

can be raised at any time. Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (per 
4

curiam). Subject matter jurisdiction is a question of law, which we review de novo.

Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 486 (Tex. 2018).

B. Applicable law

The State must follow specific statutory procedures to legally seize property 

from someone. First, the State must “obtain a search warrant based on a sworn 

affidavit averring ‘sufficient facts . . . to satisfy the issuing magistrate that probable 

cause does in fact exist for its issuance.’” Hardy v. State, 102 S.W.3d 123, 127 (Tex. 

2003) (quoting TEX. CODE CRIM. PROC. art. 18.01(b)). After the magistrate issues a

search warrant, the State executes the warrant by conducting a search and seizure of

the property. Id. (citing TEX. CODE CRIM. PROC. arts. 18.06, 18.09). The magistrate 

must issue a written notice ordering the “person found in possession of the alleged 

gambling device or equipment, . . . gambling paraphernalia, [or] gambling 

proceeds,” to personally appear and “show cause why the property seized should not 

be destroyed or the proceeds forfeited.” TEX. CODE CRIM. PROC. art 18.18(b). After

the show cause hearing, the magistrate must determine the nature of gambling 

property or proceeds and the person’s interest in that property. Id. art. 18.18(f).

Unless the person proves by a preponderance of the evidence that the evidence is not 

gambling property or proceeds and that he or she is entitled to possession, the 

magistrate must “dispose of the property or proceeds.” Id.
5

The State may file a civil forfeiture action under Chapter 59 or article 18.18(a) 

or (b) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art.

59.10; see Burnom v. State, 55 S.W.3d 752, 754 (Tex. App.—Houston [14th Dist.] 

2001, no pet.). Chapter 59 allows the forfeiture of property used in organized 

criminal activity and its proceeds. Id. art. 59.01(2)(B)(xi). Under Chapter 59, the 

State must initiate a civil forfeiture action within 30 days of the seizure and file 

a notice of the seizure and intended forfeiture “with the clerk of the district court in 

the county in which the seizure is made.” TEX. CODE CRIM. PROC. art. 59.04(a)–(b).

Alternatively, property is also subject to forfeiture under article 18.18 when 

the seized property consists of gambling devices, gambling equipment, gambling 

paraphernalia, or gambling proceeds. See TEX. CODE CRIM. PROC. art. 18.18. 

Subsection (a) requires a “final conviction of a person for possession of a gambling 

device or equipment, altered gambling equipment, or gambling paraphernalia.” Id. 

art. 18.18(a). Subsection (b), on the other hand, authorizes forfeiture when the person 

found in possession of the property has not been convicted or prosecuted following 

a seizure. Id. art. 18.18(b).

C. Analysis

To show that the trial court lacked subject matter justification over the civil 

forfeiture action, Ahmad relies on Craig v. State, 707 S.W.2d 164 (Tex. App.—

Houston [1st Dist.] 1986, no writ). In Craig, officers discovered gambling 
6

equipment, money and checks during an inventory search of the appellant’s vehicle

during a traffic stop. Id. at 164. The police seized some of the items, and the State 

filed a civil forfeiture action under article 18.18. Id. The appellant was also indicted 

in Galveston County. Id. The trial court entered a judgment of forfeiture against the 

appellant. Id. On appeal, the appellant argued that the trial court lacked authority to 

order forfeiture under article 18.18. Id. at 164-65. A panel of this Court held that trial 

court lacked authority to enter a judgment of forfeiture under article 18.18 because 

the State failed to prove that there was no prosecution or conviction following 

seizure. Id. at 165–66. The undisputed evidence showed that there was a criminal 

proceeding pending at the time the trial court ordered forfeiture. Id. 

Here, the State brought forfeiture proceedings against Ahmad under Chapter 

59, not under article 18.18. See TEX. CODE CRIM. PROC. art. 59.10. Chapter 59 does 

not require the State to prove no prosecution or conviction following seizure. See

TEX. CODE CRIM. PROC. art. 59.04. Thus, Craig is inapplicable to the civil forfeiture 

action in this case. 

Rule 38.1(f) of the Texas Rules of Appellate Procedure requires an appellant’s 

brief to “state concisely all issues or points presented for review.” TEX. R. APP.

38.1(f). Ahmad acknowledges that the State may bring a civil forfeiture action under

either Chapter 59 or article 18.18. See TEX. CODE PROC. art. 59.10. Yet, his

summary-judgment briefing in the trial court and on appeal addresses only his
7

jurisdictional challenge under article 18.18, not under Chapter 59. See TEX. R. CIV.

P. 166a(c); see also TEX. R. APP. 38.1(i) (appellate briefs “must contain a clear and 

concise argument for the contentions made, with appropriate citations to authorities 

and to the record”). References in an appellate brief to legal authority that have 

nothing to do with the issue to be decided do not meet the requirements of the Rules 

of Appellate Procedure. See Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150

S.W.3d 423, 427 (Tex. 2004); see also Amrhein v. Bollinger, 593 S.W.3d 398, 402 

(Tex. App.—Dallas 2019, pet. denied). Ahmad has therefore waived his challenge 

to the trial court’s authority over the forfeiture proceedings by failing to brief it on 

appeal. Kouba v. Northland Indus., Inc., 583 S.W.3d 857, 869 (Tex. App.—Houston 

[1st Dist.] 2019, pet. granted). 

We overrule Ahmad’s first issue. 

Evidentiary Challenge

In his second issue, Ahmad contends that the trial court erred by overruling

his objections to the State’s summary-judgment evidence based on “inadmissible 

hearsay and hearsay within hearsay.” He argues that the affidavit of Officer Edwards 

“presents facts that are not based on Edwards’s own personal knowledge.” In 

response, the State asserts that Ahmad failed to preserve error for appeal. We agree.
8

A. Standard of review

We review a trial court’s ruling on the admissibility of evidence for an abuse 

of discretion. See Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009). 

A trial court abuses its discretion when it acts without reference to any guiding rules 

or principles. In re Nat’l Lloyds Ins., 507 S.W.3d 219, 226 (Tex. 2016) (orig. 

proceeding) (per curiam). We will uphold a trial court’s evidentiary ruling on any 

basis in the record. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 

(Tex. 1998). “Moreover, we will not reverse a trial court for an erroneous evidentiary 

ruling unless the error probably caused the rendition of an improper judgment.” Id.

(citing TEX. R. APP. P. 44.1(a)(1)).

B. Analysis

To preserve error for appeal, the complaining party must make a timely 

request, objection, or motion, stating the specific grounds for the desired ruling if 

not apparent from the context. TEX. R. APP. P. 33.1(a)(1); Guion v. Guion, 597 

S.W.3d 899, 904 n.3 (Tex. App.—Houston [1st Dist.] 2020, no pet.). The 

complaining party must invoke a procedure that apprises the trial court of the 

argument in a way that calls for the trial court to decide that issue. Burbage v.

Burbage, 447 S.W.3d 249, 257 (Tex. 2014) (“[T]he objection must apprise the trial 

court of the error alleged such that the court has the opportunity to correct the 

problem.”). Along with objecting to an error, the complaining party must also 
9

secure a ruling on the objection to evidence. TEX. R. APP. P. 33.1(a)(2) (requiring 

either a trial court’s ruling or a refusal to rule for preservation). Failure to do so 

waives the error on appeal. Id.

“Defects in the form of affidavits are not grounds for reversal unless 

specifically pointed out by objection by an opposing party with opportunity, but 

refusal, to amend.” TEX. R. CIV. P. 166a(f). A challenge to an affiant’s personal 

knowledge of allegations in an affidavit is a defect in form. Grand Prairie Indep.

Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (per curiam); see Giese v.

NCNB Tex. Forney Banking Ctr., 881 S.W.2d 776, 782 (Tex. App.—Dallas 1994, 

no writ) (“Hearsay is an objection to form.”). The failure to obtain a ruling on an 

objection to a defect in form waives the objection, and the objected-to summaryjudgment evidence remains part of the summary judgment proof “unless an order 

sustaining the objection is reduced to writing, signed, and entered of record.” Giese, 

792 S.W.2d at 782.; Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 164 (Tex. 2018)

(per curiam) (internal quotation marks and citation omitted). Failure to secure the 

trial court’s ruling on the objections to the summary-judgment evidence waives the 

complaint for appeal. Vice v. Kasprzak, 318 S.W.3d 1, 11 (Tex. App.—Houston [1st 

Dist.] 2009, pet. denied).

The record reflects that Ahmad objected and moved to strike the State’s 

summary-judgment evidence on the grounds of inadmissible hearsay. The record 
10

also reflects that he raised the same objections at the show cause hearing. But nothing 

in the record shows he obtained an adverse ruling or a refusal to rule followed by an 

objection to the refusal to rule to the written or in-court objections. Notably, 

Ahmad’s brief omits any discussion of an adverse ruling or an objection to the 

court’s refusal to rule from the trial court. We need not scour the records “for support 

of an appellant’s assertion of error.” Thierry v. State, 288 S.W.3d 80, 86 (Tex. 

App.—Houston [1st Dist.] 2009, pet. ref’d). Because Ahmad objected but failed to 

obtain a ruling on his objections—i.e., his hearsay objections to statements in Officer 

Edwards’s affidavit—we conclude that Ahmad waived the complaint for appeal by 

failing to preserve the error. As a result, we overrule Ahmad’s second issue.

Civil Forfeiture 

In his third issue, Ahmad contends that the trial court erroneously granted the 

State’s motion for summary judgment. Specifically, he argues that the State failed 

to establish every element of its civil-forfeiture claim. Ahmad claims his property 

was illegally seized under an invalid search warrant, and, even if lawfully seized, the 

cash proceeds seized had no nexus to illegal gambling activity. 

A. Standard of review

We review the trial court’s summary judgment de novo. See City of 

Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 258 (Tex. 2018). To 

prevail on a motion for summary judgment, the movant has the burden to show that 
11

no genuine issue of material fact exists and that the trial court should grant judgment 

as a matter of law. Id. at 258–59; TEX. R. CIV. P. 166a(c). Once the movant meets its 

burden, the burden shifts to the non-movant to raise a genuine issue of material fact 

precluding summary judgment. To meet this burden, the movant must establish 

every essential element of its claim or defense as a matter of law. Holland v. Mem’l

Hermann Health Sys., 570 S.W.3d 887, 896 (Tex. App.—Houston [1st Dist.] 2018, 

no pet.). Once the movant meets its burden, the burden shifts to the non-movant to 

raise a genuine issue of material fact. KPMG Peat Marwick v. Harrison Cnty. Hous.

Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). We take the evidence favorable to the 

nonmovant as true. Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548–

49 (Tex. 1985). We indulge every reasonable inference in favor of the nonmovant 

and resolve any doubts in his favor. Goodyear Tire & Rubber Co. v. Mayes, 236

S.W.3d 754, 755 (Tex. 2007) (per curiam).

B. Applicable law

The summary judgment record shows that the State initiated civil forfeiture 

proceedings under Chapter 59 of the Code of Criminal Procedure. Under Texas law, 

Chapter 59 authorizes the State to pursue the forfeiture of property used in the 

commission of organized criminal activity and its proceeds. See TEX. CODE CRIM.

PROC. art. 59.01(2)(B)(xi); TEX. PENAL CODE 71.02(a)(2). In the statutory scheme, 

property, including currency, is subject to seizure and forfeiture if it is contraband. 
12

TEX. CODE CRIM. PROC. art. 59.02(a). Contraband is property used or intended to be 

used in the commission of gambling offenses punishable as a Class A misdemeanor, 

or proceeds derived from those gambling offenses. Id. art. 59.01(2)(B)(xi). 

As applied to this case, contraband is property and proceeds that are derived 

from or intended for use in engaging in organized criminal activity based on the 

underlying offenses of gambling promotion, keeping a gambling place, or possession 

of a gambling device, equipment, or paraphernalia. See id. art. 59.01(2)(B)(xi); TEX.

PENAL CODE §§ 47.03, 47.04, 47.06, 71.02(a)(2). A person commits the Class A 

misdemeanor offense of gambling promotion if he intentionally or knowingly 

operates or participates in the earnings of a gambling place. TEX. PENAL CODE § 

47.03(a)(1). Similarly, a person commits the Class A misdemeanor offense of 

keeping a gambling place if he “knowingly uses or permits another to use as a 

gambling place any real estate, building, . . . or other property whatsoever owned by 

him or under his control, or rents or lets any such property with a view or expectation 

that it be so used.” Id. § 47.04(a).

The purpose of forfeiting a defendant’s contraband to the government is to 

prohibit the property and its proceeds to be used for illegal purposes. See Bennis v.

Michigan, 516 U.S. 442, 452 (1996) (“Forfeiture of property prevents illegal uses 

. . . by imposing an economic penalty, thereby rendering illegal behavior 

unprofitable.”); Fant v. State, 931 S.W.2d 299, 308 (Tex. Crim. App. 1996) (en 
13

banc) (quoting United States v. Ursery, 518 U.S. 267, 290 (1996)) (“By requiring

the forfeiture of property used, or gained, in the manner set out in the statute, . . .

[t]here will also be some assurance ‘they will not permit that property be used for

illegal purposes.’”). Similarly, the Fifth Circuit has also observed that forfeiture of 

ill-gotten gains from criminal activity is “much like the confiscation of stolen money 

from a bank robber, [which] merely places that party in the lawfully protected 

financial status quo that he enjoyed prior to launching his illegal scheme. This is not 

punishment within the plain meaning of the word.” United States v. Tilley, 18 F.3d 

295, 300 (5th Cir. 1994) (internal citations omitted).

Under Chapter 59, the State must “prove by a preponderance of the evidence 

that the property at issue is contraband.” State v. One (1) 2004 Lincoln Navigator, 

494 S.W.3d 690, 698–99 (Tex. 2016). The State must also show that it had probable 

cause to seize the contraband by proving that a substantial connection exists between 

the contraband and the criminal offense. Id. at 698 n.9.

C. Analysis

In his affidavit1, Edwards asserted that he obtained a search warrant, signed 

by Judge Terri Holder of the 149th District Court for Brazoria County. The next day, 

1 Because there was no ruling on Ahmad’s objections to the State’s summaryevidence, we are constrained to accept Officer Edwards’s affidavit at face value.

See Seim, 551 S.W.3d at 166; see also TEX. R. EVID. 802 (“Inadmissible hearsay 

admitted without objection may not be denied probative value merely because it is 

hearsay.”).
14

Edwards and other members of the Brazoria County Narcotics Task Force executed 

the search warrant at Winner One Eleven Game Room. The officers interviewed “six 

game room patrons.” According to Edwards, Officer J. Miller interviewed B. Cruz, 

the game room attendant. Cruz told Officer Miller that she had worked for the game 

room for “about one year.” Cruz was required to collect “operating money (bank) 

from the office safe.” Officer Miller then asked Cruz if she had any “game room 

documents or money,” and she took $1,230 in cash from her apron and handed it to 

him. Edwards’s affidavit described the game room operations based on Cruz’s

interview with Officer Miller:

Cruz described the “bank” as cash that she used to make matches and 

to pay out winning patrons. Cruz stated that a customer would enter the 

game room, . . . select a gambling machine, [and] say “match.” Cruz 

would match whatever that patron put into the machine up to $20.00. 

Cruz stated that if a patron won, they would say “ticket.” Cruz would

confirm the win and pay the customer whatever the win was using her 

bank. Cruz logged the matches and wins into the attendant computer

located at the attendant desk. Cruz stated that the minimum pay out [sic]

was $20.00 and the maximum pay out was $3[,]000.00. At the end of 

her shift, Cruz would place any remaining operating cash in the office 

prior to leaving the game room.

Cruz declined to provide a written statement, told Officer Miller a man named 

“Tony” had hired her, and provided Officer Miller with Tony’s telephone number. 

Edwards asserted that he called the number provided by Cruz. A man answered and 

identified himself as M. Dias. Dias confirmed that he was a “machine vendor” and 
15

“repairman” for the game room. Dias named “Ahmad” as the owner of the game 

room and provided Edwards with Ahmad’s number. 

After leaving a message at the telephone number provided by Dias, Edwards 

received a call from a man who identified himself as Aetezaz Ahmad. Ahmad told 

Edwards that he was the leaseholder and owner of the game room. Ahmad also told 

Edwards that he had owned the game room since January 2017. Afterwards, 

Edwards told Ahmad that he would be getting misdemeanor arrest warrants for him. 

Edwards’s affidavit shows that at least three people—Cruz, Dias, and 

Ahmad—participated in the gambling promotion and keeping a gambling place 

activity. There is no dispute that gambling occurred in the game room. In fact, 

Ahmad judicially confessed to the underlying facts of the charged offenses when he 

pleaded guilty to gambling. Brown v. State, 507 S.W.2d 235, 238 (Tex. Crim. App. 

1974); see Johnson v. State, No. 01-99-01269-CR, 2000 WL 964674, at *1 (Tex. 

App.—Houston [1st Dist.] July 13, 2000, no pet.) (mem. op., not designated for 

publication) (“By pleading guilty, appellant admitted the offense.”). Thus, Edwards’ 

affidavit establishes that the property seized, including the $1,230 of cash from Cruz, 

was contraband subject to forfeiture. See, e.g., Lot 6, NW 17’ of 5, Block 5 v. State, 

No. 13-07-00326-CV, 2009 WL 1801466, at *4 (Tex. App.—Corpus Christi June 

25, 2009, no pet.) (mem. op.) (the state had established that a house was being used 

for the unlawful delivery of controlled substances, and was thus contraband subject 
16

to forfeiture because the homeowner pleaded guilty to engaging in the storage and 

sale of controlled substances).

The evidence also supports the trial court’s probable-cause finding of a

substantial connection between the property and proceeds seized and the gamblingrelated offenses. First, Ahmad told Edwards that he owned the game room, per

Edwards’s affidavit. Second, Ahmad admitted to every element of gambling in his 

guilty plea. Third, Cruz gave Officer Miller “game room money,” which she 

admitted was from the gambling operations. Cassias v. State, 719 S.W.2d 585, 587 

(Tex. Crim. App. 1986) (en banc) (citing Brinegar v. United States, 338 U.S. 160, 

175–76 (1949)) (“Where facts and circumstances within the knowledge of a police 

officer, arising from a reasonably trustworthy source, would warrant a man of 

reasonable caution in the belief that items of contraband or evidence of a crime may 

presently be found in a specified place, there is probable cause to issue a warrant to 

search that place”). Finally, the officers recovered $41,2392, 103 gambling 

machines, and other items during their search of the game room. Based on the 

summary-judgment evidence, the State met its burden and established every 

essential element of its claims. 

2 The currency seized by the officers totaling $41,239, includes Cruz’s attendant 

apron: $1,230.00, illicit gambling machines: $14,615, small sentry safe: $9,699.00, 

upper wall safe: $5,000, lower wall safe: $10,655.
17

Ahmad, however, did not carry his burden of raising a genuine issue of 

material fact precluding summary judgment. In his response to the State’s motion, 

Ahmad attached no evidence to show why the seized property should not be 

forfeited. Instead, he merely alleged that “[t]here is not sufficient evidence to show 

that any or all of the currency and machines seized are contraband used in the 

commission of a felony.” This “conclusory statement” is “insufficient to create a 

question of fact to defeat summary judgment.” Elizondo v. Krist, 415 S.W.3d 259, 

264 (Tex. 2013); see City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 

2009) (holding conclusory, baseless testimony to be no evidence). We therefore 

conclude that the trial court did not err by ordering the forfeiture of the contraband 

at issue. The State established that the property was contraband and showed that 

there was probable cause to seize the contraband. The State demonstrated a 

substantial connection between the contraband to be forfeited and the gamblingrelated offenses. We overrule Ahmad’s third issue.

Excessive Fines Clause

In his final issue, Ahmad argues that the trial court violated the Eighth 

Amendment of the United States Constitution prohibiting excessive fines when it 

entered a judgment of forfeiture of $41,239 in cash, 103 gambling machines, and 
18

other property seized as contraband. He argues that full forfeiture of his property 

was excessive and grossly disproportionate to the gravity of his offenses.

3

D. Applicable law

Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor 

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST.

amend. VIII. The Excessive Fines Clause applies to the states through the Fourteenth 

Amendment. Robinson v. California, 370 U.S. 660, 675 (1962). The United States 

Supreme Court addressed the application of the Eighth Amendment to forfeiture of 

property that was not contraband under federal forfeiture statutes in Austin v. United 

States, 509 U.S. 602 (1993). See also Fant, 931 S.W.2d at 302 (Tex. Crim. App. 

1996) (en banc) (applying Austin). The court held that civil forfeiture serves as a 

“punishment” “subject to the limitations” of the Excessive Fines Clause of the 

Eighth Amendment. Austin, 509 U.S. at 622. 

3 Ahmad also argues that forfeiture is unlawful under article 18.18 because the 

property was not contraband because he was not prosecuted or convicted of felony 

offenses delineated in Subsection (a) or (b) of that statute. Texas law is clear that 

the defendant must be convicted of one of the enumerated offenses of article 

18.18(a) as a predicate to generate the State’s remedy of forfeiture. State v. Dugar, 

553 S.W.2d 102, 103 (Tex. 1977). However, as noted previously, the State sought 

forfeiture under Chapter 59, not article 18.18. Under Texas Code of Criminal 

Procedure article 59.01(B)(xi), a felony is not a predicate to bring a forfeiture action 

against a defendant. TEX. CODE CRIM. PROC. art. 59.01(B)(xi) (defining 

“contraband” as “any offense under Chapter 71, Penal Code”). We need not address 

this issue because the forfeiture was not under article 18.18. See Republic

Underwriters Ins. Co., 150 S.W.3d at 427.
19

Once the State establishes that the property “constitutes punishment and is 

thus a “fine” within the meaning of the Excessive Fines Clause,” a court must then 

apply a “proportionality” test under United States v. Bajakajian, 524 U.S. 321, 334 

(1998). Bajakajian involved a forfeiture of currency under a federal statute making 

it unlawful to carry more than $10,000 in currency out of the country without 

reporting it. Id. The respondent pleaded guilty to the criminal violation of failure to 

report. Id. at 325. The government also sought forfeiture of the entire amount of 

cash, $357,144, carried by respondent. Id. The district court ruled that, under the 

statute, the entire sum was subject to forfeiture, but declined to enter such a 

judgment, holding that such a result would violate the Excessive Fines Clause. Id. at 

326–27. The Ninth Circuit affirmed. Id. The Supreme Court, reversing, held that: (1) 

forfeitures are “fines” subject to the limitations of the Eighth Amendment if they 

constitute punishment for an offense; (2) forfeiture of currency under the subject 

statute is a form of punishment; it is a sanction available when imposing a sentence 

for violation of the criminal statute imposed after criminal proceedings and cannot 

be imposed on an “innocent owner”; and (3) modern statutory forfeiture provisions 

are “fines” for Eighth Amendment purposes, if they constitute, even in part, 

punishment. Id. at 333–34. Thus, the forfeiture of currency was subject to the 

Excessive Fines Clause. Id. at 334.
20

E. Analysis

Here, the property at issue is not a fine as contemplated by the Eighth 

Amendment. As Justice Scalia noted in his concurring opinion in Austin, “to 

constitute a fine under the Eighth Amendment, [ ] the forfeiture must constitute 

‘punishment.’” Austin, 509 U.S. at 623 (Scalia, J., concurring). Justice Scalia

distinguished a fine subject to the limitations of the Excessive Fines Clause from an 

instrumentality of the offense:

Unlike monetary fines, statutory in rem forfeitures have traditionally 

been fixed, not by determining the appropriate value of the penalty in 

relation to the committed offense, but by determining what property has 

been “tainted” by unlawful use, to which issue the value of the property 

is irrelevant. Scales used to measure out unlawful drug sales, for 

example, are confiscable whether made of the purest gold or the basest 

metal. But an in rem forfeiture goes beyond the traditional limits that 

the Eighth Amendment permits if it applies to property that cannot 

properly be regarded as an instrumentality of the offense—the building, 

for example, in which an isolated drug sale happens to occur. Such a 

confiscation would be an excessive fine. The question is not how much

the confiscated property is worth, but whether the confiscated property 

has a close enough relationship to the offense.

Id. at 627–28. Austin requires us to determine whether the property and proceeds—

subject to statutory forfeiture under Texas law—constitute a fine or an 

instrumentality of the offense. 

The record evidence reflects that police officers seized the currency, the 

gambling machines, and the other physical property as instrumentalities of the 

gambling offenses because these items were used for illegal purposes. Indeed, the 
21

State attached the three affidavits as summary-judgment evidence stating, “[A]ll 

listed seized items are proceeds from and/or instruments used in and to further the 

illicit gambling operation that is the Winner One Eleven game room.” In response 

to the State’s motion for summary judgment, Ahmad alleged that there was 

insufficient evidence to show that “any or all of the currency and machines seized”

were instruments of the illicit gambling activity. He also alleged that “[p]roceeds 

would only be the currency paid by customers, and not any starting capital or 

‘bank.’” 

To qualify as instrumentalities, the forfeited property and the gambling 

offenses must be related. Austin, 509 U.S. at 623. Here, the gambling machines, 

proceeds, and other property were “tainted” by the illegal gambling offense. See id. 

Ahmad did not show what portion, if any, of the seized funds was starting capital 

versus currency paid by customers. He did not attach any evidence in support of his 

allegations. Nor did he cite any legal authorities to explain why any portion of the 

currency or other items were not instrumentalities of the crimes. 

Because the currency and property seized from Ahmad was seized as an 

instrumentality of the gambling offenses, and not as a fine intended to punish him, 

we need not reach the issue of proportionality. We therefore conclude that the trial 

court did not violate the Eighth Amendment by entering a judgment of forfeiture of 

Ahmad’s property. We overrule Ahmad’s fourth issue.
22

Conclusion

We affirm the trial court’s judgment.

Sarah Beth Landau

Justice

Panel consists of Justices Keyes, Kelly, and Landau.