Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-12-00212-CV

ONE (1) 2002 CADILLAC DEVILLE, VIN 1G6KD54Y42U228530,

Appellant

v.

The STATE of Texas,

Appellee

From the 407th Judicial District Court, Bexar County, Texas

Trial Court No. 2011-CI-04965

Honorable Richard Price, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Karen Angelini, Justice

Steven C. Hilbig, Justice

Marialyn Barnard, Justice

Delivered and Filed: December 19, 2012

REVERSED AND REMANDED

Appellant Manuel Cardenas brings this appeal from the trial court’s order granting 

summary judgment for the State in a forfeiture proceeding. On appeal, Cardenas contends the 

trial court erred in granting summary judgment because: (1) he was denied the opportunity to be 

present at the summary judgment hearing; and (2) there was insufficient evidence to demonstrate 

the property forfeited, a 2002 Cadillac Deville, was contraband used or derived from narcotics 

trafficking and subject to forfeiture. We hold the State’s evidence did not establish, as a matter 
04-12-00212-CV

- 2 -

of law, a reasonable belief that a substantial nexus exists between the vehicle forfeited and 

narcotics trafficking. We reverse and remand.

BACKGROUND

The State brought a forfeiture action against Sammy Barraza, Melissa Barraza, and 

Cardenas1 for U.S. currency in the amount of $365.96, a 2002 Cadillac Deville, and other 

property seized by Deputy Sheriff Bryan Smith pursuant to a narcotics search warrant executed 

on the Barraza residence.

In his affidavit, Deputy Smith stated he executed a narcotics search warrant on the 

residence of Sammy and Melissa Barraza, where he found, among other things: a clear plastic 

bag containing marijuana, packaging material, a digital scale, and firearms. Deputy Smith 

asserted his belief that Sammy and Melissa Barraza are drug dealers who receive money and 

other items of value in exchange for narcotics. Deputy Smith stated he also seized U.S. 

currency, jewelry, consumer electronics, and a 2002 Cadillac Deville, which was owned by 

Cardenas,2 because he believed these items were proceeds of narcotics trafficking.

The State filed its original notice of intended forfeiture and filed discovery requests, 

including requests for admissions directed to Sammy and Melissa Barraza, but not to Cardenas. 

The State then filed a motion for summary judgment as to the 2002 Cadillac Deville, which was 

owned by Cardenas. In support of its motion, the State relied on Deputy Smith’s affidavit and on 

the Barrazas’s deemed admissions. After a hearing on the motion, the trial court granted 

summary judgment, ordering Cardenas to forfeit any interest in the seized vehicle. Cardenas

perfected this appeal.

 1 The record is unclear about the relationship, if any, between the Barrazas and Cardenas. However, the record

shows Cardenas is the owner of the vehicle seized during the narcotics search.

2 Cardenas was not present at the residence at the time of the search. There is no indication in the record that he was 

ever charged with any crime connected to the search.
04-12-00212-CV

- 3 -

ANALYSIS

Cardenas challenges the trial court’s order granting summary judgment and forfeiting his 

interest in the 2002 Cadillac Deville. Cardenas argues the trial court erred in granting summary 

judgment because: (1) he was denied the opportunity to be present at the summary judgment 

hearing;3 and (2) there was insufficient evidence to demonstrate the vehicle was contraband 

subject to forfeiture.

Standard of Review

Summary Judgment

We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 

S.W.3d 860, 862 (Tex. 2010); $24,156.00 in U.S. Currency v. State, 247 S.W.3d 739, 742 (Tex. 

App.—Texarkana 2008, no pet.). A traditional motion for summary judgment is granted only 

when the movant establishes there are no genuine issues of material fact and the movant is 

entitled to judgment as a matter of law. Lesieur v. Fryar, 325 S.W.3d 242, 246 (Tex. App.—San 

Antonio 2010, pet denied) (citing Browning v. Prostok, 165 S.W.3d 336, 244 (Tex. 2005)). On 

review, we take evidence favorable to the nonmovant as true and indulge every reasonable 

inference from the evidence in its favor. Lesieur, 325 S.W.3d at 246 (citing Am. Tobacco Co. v. 

Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)). In deciding whether there is a material fact issue 

precluding summary judgment, all conflicts in the evidence are disregarded and evidence 

favorable to the nonmovant is accepted as true. Cole v. Johnson, 157 S.W.3d 856, 859 (Tex. 

App.—Fort Worth 2005, no pet.) (citing Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 

170, 173 (Tex. 1995)). 

 3 Cardenas contends he was not present at the summary judgment hearing. While the record is unclear on this point, 

given our holding with regard to Cardenas’s second point of error, we need not consider his first point of error 

relating to his attendance at the summary judgment hearing.
04-12-00212-CV

- 4 -

When a plaintiff moves for summary judgment on its own cause of action, it must 

establish each element of its claim as a matter of law in order to prove it is entitled to summary 

judgment. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). Once a movant 

establishes its right to summary judgment, the burden shifts, and the nonmovant must produce 

some evidence raising a genuine issue of material fact. Cole, 157 S.W.3d at 860; Romo v. Tex. 

Dep’t of Transp., 48 S.W.3d 265, 269 (Tex. App.—San Antonio 2001, no pet.).

Applicable Law

Forfeiture

Chapter 59 of the Texas Code of Criminal Procedure prescribes the procedures governing 

civil forfeiture, which is an in rem proceeding against contraband. State v. Silver Chevrolet 

Pickup VIN 1GCEC14T7YE257128 Tag No. 3TMX16, 140 S.W.3d 691, 692–93 (Tex. 2004); 

Hardy v. State, 102 S.W.3d 123, 126–27 (Tex. 2003). Under Chapter 59 of the Texas Code of 

Criminal Procedure, property, including currency, is subject to seizure and forfeiture if it is 

found to be contraband. TEX. CODE CRIM. PROC. ANN. art. 59.02(a) (West Supp. 2012).

Contraband is property used or intended to be used in the commission of certain felonies, or 

proceeds derived from those felonies. TEX. CODE CRIM. PROC. ANN. art. 59.01(2)(A)-(D); Silver 

Chevrolet Pickup, 140 S.W.3d at 692.

In forfeiture proceedings, the State must show probable cause for seizing a person’s 

property. TEX. CONST. art. I, § 9; State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991). To 

show probable cause, the State must establish a reasonable belief that a substantial nexus or 

connection exists between the property to be forfeited and the statutorily defined criminal 

activity. $11,014.00, 820 S.W.2d at 785; $27,877.00 Current Money of U.S. v. State, 331 

S.W.3d 110, 114 (Tex. App.—Fort Worth 2010, pet. denied). Thus, the State must prove that it 
04-12-00212-CV

- 5 -

is more reasonably probable than not that the seized property was either intended for use in, or 

derived from, a violation of the offenses enumerated in the forfeiture statute. $27,877.00 

Current Money of U.S., 331 S.W.3d at 114 (citing State v. Five Thousand Five Hundred Dollars 

in U.S. Currency, 296 S.W.3d 696, 701 (Tex. App.—El Paso 2009, no pet.)).

The State may prove the required substantial nexus through circumstantial evidence. Id.

(citing $11,014.00, 820 S.W.2d at 785). When relying on circumstantial evidence, the State 

must offer evidence that raises more than a mere suspicion regarding the source of the property 

or money. Id.

Deemed Admissions

A party may serve on another party—no later than thirty days before the end of the 

discovery period—written requests that the other party admit the truth of any matter within the 

scope of discovery, including statements of opinion or a fact or of the application of the law to 

fact. See TEX. R. CIV. P. 198.1. When a party does not return answers to a request for 

admissions within thirty days, the matters in the request are deemed admitted against that party.

Wal–Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 355 (Tex. 1998); see also TEX. R. CIV. P.

198.2(c) (“If a response is not timely served, the request is considered admitted without the 

necessity of a court order.”). A matter admitted under this rule is conclusively established as to 

the party making the admission unless the court permits the party to withdraw or amend the 

admission. State v. Carrillo, 885 S.W.2d 212, 214 (Tex. App.—San Antonio 2004, no pet.) 

(emphasis added); TEX. R. CIV. P. 198.3. 

Admissions of fact on file at the time of a summary judgment hearing are proper 

summary judgment proof and will support a motion for summary judgment. Acevedo v. Comm’n 

for Lawyer Discipline, 131 S.W.3d 99, 105 (Tex. App.—San Antonio 2004, pet. denied). A 
04-12-00212-CV

- 6 -

party who fails to expressly present to the trial court any written response in opposition to a 

motion for summary judgment based on deemed admissions waives its right to raise any 

arguments or issues post-judgment. Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797 

(Tex. 2008). Issues not expressly presented to the trial court by written notice, answer, or other 

response shall not be considered on appeal as grounds for reversal. Id.

Application

In his second point of error, Cardenas contends there was insufficient evidence to 

demonstrate the vehicle was contraband subject to forfeiture.4

 The State had the burden of 

proving, as matter of law, that it was more reasonably probable than not that the seized property 

was either intended for use in, or derived from, a violation of the offenses enumerated in the 

forfeiture statute. See $11,014.00, 820 S.W.2d at 785. The State provided the affidavit of Bryan 

Smith, the deputy sheriff who executed the narcotics search on the Barraza residence. In his 

affidavit, Smith swore Sammy Barraza showed him the location of a bag with marijuana, as well 

as packaging material, a digital scale, and eight firearms located throughout the house. Smith 

also found $357.96 in U.S. currency in Sammy Barraza’s pocket. Smith explained he believed 

the Barrazas acquired valuable items with the proceeds of narcotics trafficking, and this belief 

led him to seize, among other things, the 2002 Cadillac Deville parked outside the Barraza 

residence.

However, the affidavit provides no evidence the vehicle was used or intended to be used 

in the commission of narcotics trafficking, or that it was proceeds derived from such felony. See

Silver Chevrolet Pickup VIN 1GCEC14T7YE257128, 140 S.W.3d at 692; see also TEX. CODE 

CRIM. PROC. ANN. art. 59.01(2)(A)-(D). There is no evidence in the record connecting the 

 4 Although Cardenas presents his second point of error as a sufficiency challenge, this court must review the 

evidence under the standard of review applicable to appeals from summary judgments.
04-12-00212-CV

- 7 -

Barrazas to the vehicle, other than the fact it was parked outside their home. We hold that 

simply because the vehicle was parked in or near a residence containing narcotics does not 

establish the nexus between the vehicle and the sale or distribution of narcotics. See $7,058.84 

in U.S. Currency v. State, 30 S.W.3d 580, 587 (Tex. App.—Texarkana 2000, no pet.) (noting fact 

that money is found at or near controlled substance does not establish by itself nexus between 

money and sale 

or distribution of a controlled substance).

Furthermore, in reviewing other forfeiture cases and the evidence used to establish a 

nexus between the property forfeited and drug trafficking, this court finds no evidence of the 

kind that reflects the vehicle may have been connected to the Barraza’s alleged narcotics 

trafficking. See, e.g., $43,774.00 U.S. Currency v. State, 266 S.W.3d 178, 186 (Tex. App.—

Texarkana 2008, pet. denied) (noting secret compartments in vehicle forfeited and alerted by 

drug dog were evidence supporting nexus between vehicle and drug trafficking). Thus, we hold 

the deputy’s affidavit does not, as a matter of law, establish a nexus between the vehicle and 

narcotics trafficking. See Rhone-Poulenc, Inc., 997 S.W.2d at 223 (noting plaintiff moving for 

summary judgment must establish each element of claim as a matter of law in order to be entitled 

to summary judgment); $11,014.00, 820 S.W.2d at 785 (stating State must establish reasonable 

belief that substantial nexus or connection exists between property to be forfeited and statutorily 

defined criminal activity).

The State also relied on requests for admissions served on the Barrazas as summary 

judgment evidence to establish the car was contraband. Those requests for admissions asked the 

Barrazas to admit, concerning the 2002 Cadillac Deville, that: (1) it was subject to seizure and 

forfeiture; (2) it was in their possession and under their control; (3) it was proceeds gained from 
04-12-00212-CV

- 8 -

the commission of a felony under Texas Health and Safety Code sections 481.120 and 481.121 

and a felony under Texas Penal Code section 34.02; and (4) the vehicle was acquired with 

proceeds gained from the commission of a felony under Texas Health and Safety Code sections 

481.120 and 481.121 and a felony under Texas Penal Code section 34.02. The Barrazas did not 

respond to the request for admissions, and therefore, the requests were deemed admitted by the 

Barrazas. See TEX. R. CIV. P. 198.2(c) (noting unanswered requests for admissions are 

considered admitted without court order).

Although deemed admissions are competent summary judgment evidence, TEX. R. CIV.

P. 166a(c), Acevedo, 131 S.W.3d at 105, the admissions are only conclusively established as to 

the party making the admission. Carrillo, 885 S.W.2d at 214. Therefore, the Barrazas’s 

admissions are only conclusively established against them, not Cardenas; he was never served 

with any requests for admissions. The State argues Cardenas did not object to the Barrazas’s 

admissions by filing a controverting affidavit or any other competent summary judgment 

evidence. However, the State fails to cite any authority, and we have found none, that requires a 

party to object to another’s deemed admissions.

We recognize forfeiture law, as a civil matter, is subject to a lesser standard of proof. See 

$43,774.00 U.S. Currency, 266 S.W.3d at 188. However, we hold the State’s evidence did not 

meet this lesser standard of proof and raised only a mere suspicion that the vehicle was 

contraband, and did not establish, as a matter of law, a reasonable belief that a substantial nexus 

exists between the vehicle forfeited and the Barraza’s narcotics trafficking.5

 See $27,877.00 

 5 We recognize that under Article 59.02(h)(1) of the Texas Code of Criminal Procedure, property may not be 

forfeited if the owner, at the forfeiture hearing, proves by a preponderance of the evidence that he was not a party to 

the offense giving rise to the forfeiture and that the contraband was stolen, purchased with money stolen from the 

owner, or used without the effective consent of the owner in the commission of the offense. TEX. CODE CRIM.

PROC. ANN. art. 59.02(h)(1) (West Supp. 2011). However, in the context of summary judgment, as in this case, it is 

the State who has the burden to prove the nexus between the property and the offense as matter of law before the 

property owner has any burden of proof.
04-12-00212-CV

- 9 -

Current Money of U.S., 331 S.W.3d at 114; $11,014.00, 820 S.W.2d at 785. Accordingly, we 

sustain Cardenas’s second point of error and reverse the trial court’s judgment.

CONCLUSION

We reverse the trial court’s summary judgment forfeiting Cardenas’s interest in the 2002 

Cadillac Deville and remand for further proceedings consistent with this court’s opinion.6

Marialyn Barnard, Justice

 6 We note that in our judgment we assess costs against the State of Texas. See Tex. Att’y Gen. Op. No. DM-459 

(1997) (stating that in absence of provision exempting State from liability for costs in particular case, State, like 

other parties, is liable for costs).