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Click here for the full text of this decision FACTS:At the trial to the court, it was shown that Ricky Blackburn of the Ark-La-Tex Narcotics Task Force spoke with property owner Henry Doke on two occasions about reputed drug use at the Dew Drop Inn, located on Doke’s property, before obtaining a search warrant and conducting the drug raid which resulted in the discovery of cocaine on the premises. During the first interview, in April 2005, Blackburn mentioned the reported drug use at the Dew Drop Inn and called Doke’s attention to the detritus of drug use scattered about the premises. On the second of those interviews, one of the participating officers mentioned to Doke near the beginning of their conversation that the property could be subject to forfeiture. Doke, who distrusted law enforcement officers, insisted on videotaping the balance of the interview. Present with Doke at the second interview was Terrance “Toot” Banks, who was represented as being the person who ran the Dew Drop Inn; Banks had at least one previous conviction of possession of a controlled substance and had previously assaulted one of the interviewing officers during a clandestine drug operation in which the officer had participated. After the interviews, on June 17, 2005, a confidential informant working with the Ark-La-Tex Narcotics Task Force purchased cocaine from Banks at the Dew Drop Inn. After these encounters, Blackburn and others obtained a search warrant to the Dew Drop Inn and conducted a drug raid on the premises on June 30, 2005, during which cocaine was found dissolved in a liquid in a microwave oven that was located in the geodesic “dome” building on the premises. Rathel Doddy was found with rock cocaine on his person in a nearby structure on the Dew Drop Inn premises. In addition, there was drug paraphernalia located in and around the “smoke house” structure located elsewhere on the site and the grounds were littered with small plastic bags, propane lighters, steel wool and other items commonly used in the drug culture. The drug task force arrested four individuals for possession of controlled substances, those being Lamarcus Morton, Frederick Hopkins, Jeremy Byrd and Doddy. Morton went to trial before a jury and was acquitted; the charges against Hopkins, Byrd and Doddy were dismissed. Before the raid and the arrests, Doke had never had a written lease agreement with a tenant, preferring month-to-month oral rental agreements of his various rental properties on the basis of, “If you don’t pay, you don’t stay.” Subsequent to the raid that precipitated the forfeiture proceedings, Doke instituted a policy of obtaining written lease agreements which admonished his tenants to refrain from unlawful conduct on the premises. Before the raid occurred, Doke had rented the Dew Drop Inn to Gloria Robbins, who had been twice previously convicted of delivery of a controlled substance, and to Charles Melvin Douglas, convicted of delivery of a controlled substance in 2003. In the immediately-preceding five-year period, there had also been other tenants, some of whose names Doke indicated that he could not remember. At the time of the raid and arrests, Doke was renting the place to Arthur C. Gregory, who was the father of Morton. Morton likewise had previous drug convictions and was one of those arrested as a result of the drug raid. Doke further testified that he had no reason to believe that drugs were being used or sold on the Dew Drop Inn property and that he would not have permitted it had he known. He also testified that the three parcels of property described on tax renditions to which the petition for forfeiture referred as the .39 acres, .748 acres and .5 acres were collectively known as the Dew Drop Inn property. The entire premises were rented as a whole entity. The state called Blackburn, Johnny Phillips, Lori McCullough, Harry Washington, Lance Cline, Jeff McCullough and Dale Sherrill, all law enforcement officers who had worked with the Ark-La-Tex Narcotics Task Force, as witnesses. Speaking generally of the testimony of these witnesses, their testimony regarded the general reputation of the Dew Drop Inn and an adjacent business (The Arcade) as drug hangouts, the facts of previous contacts between Blackburn and Doke regarding rumored drug use on the property, and the character and reputation of the tenants and customers of the Dew Drop Inn. Each of the officers who participated in the drug raid testified about his respective role in the raid. In addition, Lori McCullough testified that as a member of the task force she videotaped a drug purchase at The Arcade and that the videotape showed Doke to be present during that transaction. Others testified about the “smoke house” on the Dew Drop Inn property, which was equipped with makeshift curtains to hold in the fumes when cocaine was being consumed on the premises. The trial court issued a judgment ordering the forfeiture of Doke’s property pursuant to Chapter 59 of the Texas Code of Criminal Procedure. Specifically, the trial court divested Doke of three contiguous tracts of .39 acres, .748 acres and .5 acres in Marion County. Doke appealed. HOLDING:Affirmed. First, Doke argued that the acquittal of Lamarcus Morton raised a presumption pursuant to Texas Code of Criminal Procedure Art. 59.05 that the property was nonforfeitable and that no evidence rebutted that presumption. An action for forfeiture of contraband, the court stated, is a civil proceeding in which the state has the burden of proving by a preponderance of the evidence that property is subject to forfeiture. Although a final conviction on the charges giving rise to the forfeiture action is not required for the forfeiture to take place, an acquittal on those charges raises a presumption that the property or interest that is the subject of the hearing is nonforfeitable, a presumption that can be rebutted by “evidence that the owner or interest holder knew or should have known that the property was contraband.” Pursuant to Art. 59.01, the court stated, contraband is defined as being property of any nature, including real, personal, tangible or intangible property used in the commission of any first- or second-degree felony under the Texas Penal Code and a wide variety of other criminal activities specified in the statute. It is uncontroverted, the court stated, that Morton was acquitted and the charges against the others were dismissed. Therefore, the court found that under the statutory scheme, a presumption would rise under Art. 59.05(d) that the property was nonforfeitable. Second, Doke argued no evidence supported a finding that Doke was not an “innocent owner” of the Dew Drop Inn as defined by Art. 59.02(h)(1)(C). Art. 59.02(h)(1)(C), the court stated, provides that an owner or interest holder’s interest in property may not be forfeited if it is shown by a preponderance of the evidence that the owner was not a party to the offense giving rise to the forfeiture and the contraband “was used or intended to be used without the effective consent of the owner or interest holder in the commission of the offense giving rise to the forfeiture.” The evidence that the state presented, the court stated, showed that Doke either knew of the activities which were taking place at the Dew Drop Inn which rendered the property as contraband, or that if he did not know of these activities, he should have known of them. Thus, the court found that factually sufficient evidence supported the finding that the Dew Drop Inn had become contraband by its use in the crimes which were described and that Doke knew or should have known of continuing activity which had caused it to become forfeitable contraband. Third, Doke argued that any forfeiture should have included only the tract of realty upon which the domed building (the only site on the property wherein drugs were located) was located and not the other two parcels of land. But the court found that Doke failed to show that the Dew Drop Inn was a severable tract from the other two tracts. The court also overruled Doke’s argument that no evidence supported a finding that the realty described in the petition was the same property allegedly used in the commission of a felony that would generate a cause of action for forfeiture. OPINION:Moseley, J.; Morriss, C.J., and Carter and Moseley, JJ.

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