Opinion filed December 31, 2015

In The

Eleventh Court of Appeals 

__________

No. 11-13-00306-CV

__________

0.089 ACRES OF LAND BLK: 015, LOT: 012, ADDN: SUPERIOR 

SEC 3 PHYSICALLY LOCATED AT 3607 TAMPICO DR.,

MIDLAND, TEXAS, MIDLAND COUNTY, TEXAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CV48824

M E M O R A N D U M O P I N I O N

This is a forfeiture case under Chapter 59 of the Texas Code of Criminal 

Procedure. After the trial court conducted a hearing on the State’s amended notice 

of seizure and intended forfeiture, it forfeited “any and all interest of Robert Jason 

Parks, in the 0.089 ACRES OF LAND AND IMPROVEMENTS LOCATED AT 

3607 TAMPICO DR. MIDLAND, TEXAS BLK: 015, LOT 012, ADDN: 

SUPERIOR SEC 3 MIDLAND COUNTY, TEXAS” to the State of Texas, namely 
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the “Midland County District Attorney, as agent of the State of Texas.” The trial 

court also held that “[a]ll title in 0.089 ACRES OF LAND AND 

IMPROVEMENTS LOCATED AT 3607 TAMPICO DR. MIDLAND, TEXAS 

BLK: 015, LOT 012, ADDN: SUPERIOR SEC 3 MIDLAND COUNTY, 

TEXAS is perfected in the Midland County District Attorney.” We affirm. 

Robert J. Cooper created a spendthrift trust for the benefit of his grandson, 

Robert Jason Parks. Cooper named Ruth Ann Hughes, Cooper’s daughter, as trustee. 

Ruth, who is Parks’s mother, was to administer the trust for Parks’s benefit, and any 

balance that remained in the trust at Parks’s death was to be distributed in equal 

shares to Ruth Ann Hughes and Cooper’s granddaughter, free of any trust.

In accordance with the powers given to her as trustee of the Parks trust, Ruth 

purchased a home located at 3607 Tampico Drive in Midland. She purchased the 

property with money exclusively from the Parks trust and bought it so that Parks 

would have a place to live—a place that would be conducive to successful 

monitoring of his diabetes. Ruth also testified that she bought the property for Parks 

to live in because she did not think that a thirty-year-old man should be living with 

his parents. According to Ruth, Parks’s credit history was such that he could not 

lease an apartment. Further, Ruth thought that the house would be a good investment

property for the trust. The trust not only bought the property, it also furnished the 

house, maintained the property, and paid taxes on it. Parks moved into the house on 

February 11, 2011. Others who lived with Parks from time to time paid varying 

amounts to the trust, and Ruth used those sporadically paid funds to cover

miscellaneous costs—such as homeowners’ association fees—associated with the 

property.

Subsequently, as personnel with the Midland Police Department were 

engaged in an investigation of a heroin distribution ring, Parks and his friend Charles 

Pittman were identified as persons who were mid-level heroin distributors in the 
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organization. Parks and Pittman lived in the Tampico Drive house at the time of the 

investigation.

Ed Marker, a detective with the Midland Police Department, testified that the 

investigation revealed that Parks and Pittman were involved in the distribution ring 

and that the Tampico Drive house was the base for their mid-level heroin operation. 

Multiple controlled buys made by cooperating individuals confirmed the fact that 

the property was connected to the sale of heroin. A subsequent search of the 

property, pursuant to a warrant, resulted in the recovery of penny scales, foil, and 

plastic. All of those items are items like those that drug dealers use for weighing 

and packaging illegal drugs. The packaging was like that used to package the drugs 

that the cooperating individuals had purchased from Parks and Pittman. The police 

also found a knife on the property; it field-tested positive for heroin.

Law enforcement personnel arrested Parks and Pittman. Among other things, 

federal authorities charged them with conspiracy to distribute more than 100 grams 

of heroin. Parks pleaded guilty to one count of conspiracy to distribute and to 

possess with intent to distribute 100 grams or more of heroin. The federal court 

sentenced Parks to serve eighty-seven months in prison.

Meanwhile, the State filed, and later amended, a notice of seizure and intent 

to forfeit the Tampico Drive property. After Ruth had answered in the forfeiture 

proceeding, her health deteriorated such that she resigned as trustee and appointed 

her husband, James L. Hughes, as trustee, and he continued in the lawsuit as trustee. 

After a subsequent bench trial, the trial court forfeited the Tampico Drive property 

to the State.

At no time during these proceedings did Ruth or James represent Parks. They 

appeared only as trustees of the trust. Parks had his own attorney, and Parks did not 

appeal from the judgment of the trial court. The only appellant, therefore, is the 

trust. 
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In the first issue on appeal, James argues, on behalf of the trust, that the trial 

court erred when it failed to apply Arizona law to the facts of this case because the 

trust was created in Arizona and contained a choice-of-law provision. In the second, 

third, and fourth issues on appeal, James makes some very sophisticated arguments 

about special needs trusts, various other types of trusts, and remainderman 

involvement. In the fifth issue on appeal, James asserts that the evidence was legally 

and factually insufficient to support the trial court’s negative finding as to the

affirmative defense of “innocent owner.”

Chapter 59 of the Texas Code of Criminal Procedure governs proceedings to 

forfeit contraband. Property that is contraband is subject to forfeiture and seizure by 

the State. TEX. CODE CRIM. PRO. ANN. art. 59.02(a) (West Supp. 2015). 

“Contraband” is “property of any nature, including real” property that is used in the 

commission of the crimes referenced in Article 59.01(2). Id. art. 59.01(2). 

Possession of a controlled substance with intent to deliver is one of those crimes.

The State commences forfeiture proceedings when it files a notice of the 

seizure and intended forfeiture with the clerk of the district court in the county where 

the seizure is made. Id. art. 59.04(b). In the case of real property, the State must

also file a lis pendens notice with the county clerk of each county where the property 

is located. Id. art. 59.04(g). 

Article 59.05(b) provides that the trial court is to conduct forfeiture cases the 

same as it does other civil cases. Id. art. 59.05(b) (West 2006). The State has the

burden to prove by a preponderance of the evidence that the property was subject to 

forfeiture. Id. Therefore, the State had to prove by a preponderance of the evidence 

that the property on Tampico Drive was contraband. In other words, it had to show 

that the Tampico Drive property was used in the commission of a crime that is listed 

in Article 59.01(2).
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Additionally, the State must show that probable cause existed for seizing the 

property. See Fifty-Six Thousand Seven Hundred Dollars in U.S. Currency v. State, 

730 S.W.2d 659, 661 (Tex. 1987). In forfeiture cases, probable cause exists when 

there is a reasonable belief that there is a substantial connection between the property 

to be forfeited and the criminal activity set out in Chapter 59. Id. 

There has been no real argument at trial or on appeal as to whether Parks and 

Pittman used the Tampico Drive property for their heroin distribution business. 

Nevertheless, for context, we have reviewed the evidence and hold that it supports a 

reasonable belief that there was a substantial connection between the Tampico Drive

property and delivery of heroin and that probable cause existed for seizing the 

property.

As we have indicated, Detective Marker testified at trial that Parks’s name 

came up during the course of an investigation into a heroin distribution organization. 

Parks and Pittman were thought to be mid-range persons in the heroin distribution 

organization. These beliefs proved to be well-founded after cooperating sources 

made several heroin purchases either at the Tampico Drive property or at other 

locations shortly after Parks and Pittman left the Tampico Drive property and drove 

to those other locations. 

Further, Detective Marker also testified that inside the Tampico Drive 

property, officers found packaging materials similar to the materials used to package 

the heroin that they had been buying through the cooperating sources. The police 

also found a set of scales like those used to weigh quantities of controlled substances. 

Additionally, inside the house on Tampico Drive, officers found a knife that 

contained heroin residue.

Finally, we again note that, as a result of the investigation, Parks pleaded 

guilty in federal court to conspiracy to distribute and to possess with intent to 

distribute 100 grams or more of heroin. We believe that the evidence supports a 
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reasonable belief that there was a substantial connection between the Tampico Drive 

property and criminal activity as set out in Chapter 59.

In the first issue on appeal, James argues that the trial court erred when it did 

not apply Arizona law to the trust. At trial, James’s counsel took issue with the fact 

that that State had neither pleaded nor shown that the trust was invalid. Counsel 

remarked that he did not know whether the “Court could even say it is or isn’t under 

Arizona law.” The trial court responded: “Well, I would assume that Arizona law is 

the same as Texas law unless you told me it’s different.” To which James’s lawyer 

observed: “Who knows? And I’m not saying that it isn’t, Judge.” James has waived 

his complaint that a different result would be required under Arizona law. See 

Ogletree v. Crates, 363 S.W.2d 431, 435 (Tex. 1963) (When no proof of another 

state’s law is introduced to the trial court and no request is made to take judicial 

notice of that law, the other state’s law is presumed to be the same as the law in this 

state.); see also TEX. R. EVID. 202. We overrule the first issue on appeal. 

In sophistication, James’s arguments on appeal are well beyond the arguments 

that he presented to the trial court. Because the issues on appeal are different from 

those raised in the trial court, they are waived. See TEX. R. APP. P. 33.1. However, 

to the extent that James, in the second, third, and fourth issues on appeal complains 

of the failure of the State to prove who or what entity owned the Tampico Drive 

property, we hold that the State was not required to prove ownership. The State’s 

burden was twofold: to prove by a preponderance of the evidence (1) that the 

property on Tampico Drive was contraband in that it was used in the commission of 

a crime that is listed in Article 59.01(2) and (2) that probable cause existed for 

seizing the property. See Fifty-Six Thousand Seven Hundred Dollars, 730 S.W.2d 

at 661. Even if that were not true, a beneficiary of a valid trust is the owner of the 

equitable or beneficial title to the trust property and is considered the “real” owner 

of trust property. City of Mesquite v. Malouf, 553 S.W.2d 639, 644 (Tex. Civ. 
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App.—Texarkana 1977, writ ref’d n.r.e.). We overrule the second, third, and fourth 

issues on appeal.

In the fifth issue on appeal, James argues that the trial court erred when it 

found that the trust was not an “innocent owner.” That a party is an “innocent 

owner” is an affirmative defense under Chapter 59. The burden of proof was upon 

the trust to prove that defense by a preponderance of the evidence. CRIM. PROC. art. 

59.02(c). The burden was to prove that the trust acquired an ownership interest in 

the real property before a lis pendens was filed and that the trust did not know or 

should not reasonably have known, at or before the time of acquiring the ownership 

interest, of the acts giving rise to the forfeiture or that the acts were likely to occur. 

Id. at 59.02(c)(1).

If a party attacks the legal sufficiency of an adverse finding on an issue on 

which it had the burden of proof, that party must show that the evidence established, 

as a matter of law, all vital facts in support of that issue. Sterner v. Marathon Oil 

Co., 767 S.W.2d 686, 690 (Tex. 1989). When we review a “matter of law”

challenge, we must first examine the record for evidence that supports the finding 

and ignore all evidence to the contrary. Id. If we find that there is no evidence to 

support the finding, then we will examine the entire record to determine whether the 

contrary proposition is established as a matter of law. Id. The point of error should 

be sustained only if the contrary proposition is conclusively established. Croucher v. 

Croucher, 660 S.W.2d 55, 58 (Tex. 1983). 

When a party attacks the factual sufficiency of an adverse finding on an issue 

on which it had the burden of proof, that party must demonstrate that the adverse

finding is against the great weight and preponderance of the evidence. Id. As an 

intermediate reviewing court, we must consider and weigh all of the evidence, and 

we will set aside a verdict only if the evidence is so weak, or the finding is so against 
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the great weight and preponderance of the evidence, that it is clearly wrong and 

unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

Ruth testified that she did not know that Parks was using heroin or that he had 

distributed heroin. She first learned that Parks had been arrested on the distribution 

charges the day after the arrest. However, at the time the trust purchased the 

Tampico Drive property, she knew that in 2010 Parks had pleaded guilty in 

Oklahoma to possession with intent to distribute nine pounds of marihuana. 

Parks lived in the Tampico Drive property from February 11, 2011, until the 

date that the State seized the property in May 2012. During that time, the trust paid 

for almost all of the costs there. Parks had roommates at times, and those roommates 

paid a total of around $2,800 “for utilities from 2011, 2012.” Otherwise, Parks lived 

at the Tampico Drive address and paid none of the costs. Ruth testified that Parks 

had “brittle” diabetes, which affected his entire body, including his organs, and his 

ability to take care of himself or to manage his property. There is no evidence in the 

record that Parks was employed.

The trust acquired an ownership interest in the Tampico Drive property before 

a lis pendens was filed. However, we believe that the evidence fails to conclusively 

show that Ruth, as trustee, did not know or should not reasonably have known, prior 

to the time that the trust acquired the property, that it was likely that the property 

would be used for illegal purposes. See CRIM. PROC. art. 59.02(c)(1). The evidence 

is therefore legally sufficient to support the trial court’s failure to find that the trust 

was an innocent owner of the Tampico Drive property.

We have reviewed all of the evidence as outlined above and hold that the trial 

court’s failure to find that the trust was an innocent owner of the Tampico Drive 

property is not against the great weight and preponderance of the evidence. The 

evidence is therefore factually sufficient.
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The trust had the burden of proof on its claim that it was an innocent owner 

of the premises; the trust failed to meet that burden. We overrule the fifth issue on 

appeal.

We affirm the judgment of the trial court.

JIM R. WRIGHT

CHIEF JUSTICE

December 31, 2015

Panel consists of: Wright, C.J., 

Willson, J., and Bailey, J.