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437.00) v. State

Court of Appeals of Texas, Fourth District, San Antonio

July 31, 2019

ONE THOUSAND FOUR HUNDRED THIRTY-SEVEN DOLLARS ($1, 437.00) in United States Currency and a 2016 Toyota Corolla VIN 2T1BURHE0GC627119, Appellants
v.
The STATE of Texas, Appellee

          From the 451st Judicial District Court, Kendall County, Texas Trial Court No. 18-223 Honorable Bill R. Palmer, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Irene Rios, Justice

          OPINION

          PATRICIA O. ALVAREZ, JUSTICE

         Appellant Isaac James Osei appeals the trial court's order denying his motion for new trial to overturn a default judgment entered against him in a civil forfeiture proceeding. We affirm the trial court's judgment.

         Factual and Procedural Background

         A. Facts Leading to the Seizure of Property

         On April 8, 2018, Fair Oaks Ranch Police Department Officer Elsie Serold encountered a suspicious car parked in front of a house. Two individuals were in the 2016 Toyota Corolla. In her affidavit, Officer Serold averred that she stopped to make a "casual encounter," and both individuals began "making furtive [gestures] underneath their seats."

         As Officer Serold approached the driver's door, Osei rolled down the window a couple of inches, and the officer smelled a strong odor of marijuana. The officer informed the vehicle's occupants of her concern and requested identification from each individual.

         Osei, seated in the driver's seat, provided Officer Serold his driver's license. The passenger, Marshall Bertschy, did not have a driver's license, but provided the officer with his name and date of birth. Officer Serold requested a criminal history for each from the sheriff's office dispatch. Osei did not have a criminal history, but Bertschy did. Officer Serold requested dispatch send another unit and then returned to the vehicle and turned on her body camera. Officer Serold saw Bertschy begin to start reaching under the seat again and whispering to Osei. The officer instructed both individuals to exit the vehicle. When asked if he had anything in the vehicle, Osei responded he had both marijuana and a scale in the vehicle.

         Sergeant Vasquez arrived shortly thereafter; he patted-down Bertschy and placed him in the back of Officer Serold's patrol vehicle. Sergeant Vasquez also patted-down Osei and placed Osei in the back of Officer Serold's patrol vehicle. During a search of the vehicle being driven by Osei, the officers located marijuana-laced rice krispy squares, alprazolam pills, hash oil, a digital scale, an orange grinder with marijuana residue, pipes, ecstasy, and $1437.00 in cash.

         Upon questioning by Officer Serold, Osei acknowledged acting as the middle-man in a drug deal that evening. Both individuals were arrested for possession of controlled substances and possession of marijuana and taken to the Kendall County jail. The 2016 Toyota Corolla and the property inside the vehicle were seized and delivered to the Boerne Police Department.

         B. The State's Notice of Seizure and Intention to Forfeit and Default Judgment

         On April 20, 2018, the State filed an Original Notice of Seizure and Intention to Forfeit alleging $1437.00 in cash and a 2016 Toyota Corolla, vehicle identification number 2T1BURHE0GC627119, was seized from Osei. The State's Notice of Seizure was filed pursuant to Chapter 59 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. ch. 59. The State's notice alleged the cash and the 2016 Toyota Corolla were used or intended to be used in the commission of a felony under Chapter 481 of the Health and Safety Code or were the proceeds gained from the commission of a felony under the same chapter. See Tex. Health & Safety Code Ann. ch. 481. Two exhibits were attached to the State's notice: (1) Officer Serold's affidavit and (2) the "Fair Oaks Ranch Police Notice of Intent to File Seizure." The first line of the Fair Oaks's notice of intent to file seizure provides the case numbers and the date the intent to file seizure was prepared. In this case, the date provided was April 16, 2018-eight days after the arrest and four days before the State filed the Notice of Seizure and Intention to Forfeit.

         Osei was served on May 19, 2018; both parties agree Osei's answer was due no later than 10:00 a.m. on June 11, 2018. No answer was filed.

         On June 11, 2018 at 9:06 a.m., the State filed a motion for default judgment averring Osei failed to timely file an answer. The State attached a copy of the Boerne Police Department's initial incident report, dated April 9, 2018, to its motion for default judgment. The hearing on the motion was set for that same day at 1:30 p.m. At 1:14 p.m., the trial court rendered a default judgment against Osei. The default judgment stated, in part, the State "produced evidence sufficient to show the property made the subject of this suit is contraband and is subject to forfeiture under the provisions of Chapter 59 of the Texas Code of Criminal Procedure." See Tex. Code Crim. Proc. Ann. ch. 59. The judgment ordered the $1437.00 and the 2016 Toyota Corolla be forfeited to Kendall County in the manner prescribed by Article 59.06 of the Texas Code of Criminal Procedure. See id. art. 59.06.

         C. Motion for New Trial and Hearing before the Trial Court

         Approximately three hours later, at 4:12 p.m., the same day as the default judgment, but after the default was taken, Osei's attorney filed an answer and a verified motion for new trial or, in the alternative, a motion to modify or reform the judgment. Osei's motion explained his failure to file an answer "was the result of an accident, and mistake rather than conscious indifference or willfulness in that the attorney engaged to file [an] answer sufficient to place the merits of the Plaintiff's claims in issue suffered an injury that made it impossible to file an answer by 10:00 a.m. on the answer date." In support, an affidavit of Osei's attorney was attached.

         Osei's attorney asserted another attorney was engaged to file an answer and Osei's attorney was not aware the attorney's injury prevented him ...


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