Case Information
*0 RECEIVED IN 12th COURT OF APPEALS TYLER, TEXAS 9/18/2015 10:44:46 AM PAM ESTES Clerk *1 ACCEPTED 12-15-00055-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 9/18/2015 10:44:46 AM Pam Estes CLERK CAUSE NO. 12-15-00055-CR IN THE
THE 12 th DISTRICT COURT OF APPEALS FOR THE
STATE OF TEXAS JORGE ZEPEDA,
APPELLANT V.
THE STATE OF TEXAS,
APPELLEE STATE’S REPLY TO APPELLANT’S BRIEF D. MATT BINGHAM
Criminal District Attorney
Smith County, Texas
MICHAEL J. WEST Assistant Crimina1 District Attorney State Bar I.D. No. 21203300
Smith County Courthouse
100 N. Broadway
Tyler, Texas 75702
ph: (903) 590-1720
fax: (903) 590-1719
mwest@smith-county.com
ORAL ARGUMENT NOT REQUESTED *2
T ABLE OF C ONTENTS
I NDEX OF A UTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
S TATEMENT OF THE C ASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
S TATEMENT OF THE F ACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
R EPLY TO A PPELLANT ’ S P OINTS OF E RROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
C OUNTERPOINT O NE : The Trial Court correctly overruled
Appellant’s motion to suppress where the record shows that the
officer involved fully followed the vehicle impound and inventory
policies of the Tyler Police Department . . . . . . . . . . . . . . . . . . . . . . . . . . 2
S UMMARY OF A RGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
P RAYER FOR R ELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
C ERTIFICATE OF C OMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ERTIFICATE OF S ERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ii
I NDEX OF A UTHORITIES
S TATUTE /R ULES P AGE
T EX . T RANSP . C ODE (Vernon 2014)
§ 545.104 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
T EX . R. E VID .
Rule 104 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
F EDERAL C ASES P AGE
Colorado v. Bertine , 479 U.S. 367, 107 S.Ct. 738,
93 L.Ed.2d 739 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4
Florida v. Wells , 495 U.S. 1, 110 S.Ct. 1632,
109 L.Ed. 2d 1 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
S TATE ASES P AGE
Benavides v. State , 600 S.W.2d 809
(Tex.Crim.App. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Brimage v. State , 918 S.W.2d 466
(Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Brown v. State , 6 S.W.3d 571
(Tex.App. - Tyler 1999, pet. ref'd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Delgado v. State , 718 S.W.2d 718
(Tex.Crim.App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DuBose v. State , 915 S.W.2d 493
(Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
iii
S TATE ASES (C ONT ) P AGE
Garza v. State , 137 S.W.3d 878
(Tex.App. - Houston [1 st Dist.] 2004, pet. ref'd ) . . . . . . . . . . . . . . . . . . . . . 4, 14
Greer v. State , 436 S.W.3d 1
(Tex.App. - Waco 2014, no pet. ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
Guzman v. State , 955 S.W.2d 85
(Tex.Crim.App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Mayberry v. State, 830 S.W.2d 176
(Tex.App. - Dallas 1992, pet. ref'd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15
McVickers v. State , 874 S.W.2d 662
(Tex.Crim.App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Moberg v. State , 810 S.W.2d 190
(Tex.Crim.App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 , 13
Moulden v. State , 576 S.W.2d 817
(Tex.Crim.App. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Moskey v. State , 333 S.W.3d 696
(Tex.App. - Houston [1 st Dist.] 2010, no pet .) . . . . . . . . . . . . . . . . . . . . . . . 3
Oles v. State , 993 S.W.2d 103
(Tex.Crim.App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
State v. Carter , 915 S.W.2d 501
(Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 19
Richards v. State , 150 S.W.3d 762
(Tex.App. - Houston [14 th Dist.] 2004, pet. ref'd ) . . . . . . . . . . . . . . . . . . . .
Rippy v. State , 53 S.W.2d 619
(Tex.Crim.App. 1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
iv
S TATE ASES (C ONT ) P AGE
Roberts v. State , 444 S.W.3d 770
(Tex. App. - Fort Worth 2014, pet. ref'd ) . . . . . . . . . . . . . . . . . . . . . . . . . . 5
State v. Mercado , 972 S.W.2d 75
(Tex.Crim.App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Stephen v. State , 677 S.W.2d 42
(Tex.Crim.App. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Trujillo v. State , 952 S.W.2d 879
(Tex.App. - Dallas 1997, no pet .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Uballe v. State , 439 S.W.3d 380
(Tex. App. - Amarillo 2014, pet. ref'd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Willis v. State , 192 S.W.2d 585
(Tex.App. - Tyler 2006, pet. ref’d ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Villarreal v. State , 935 S.W.2d 134
(Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
v *6 CAUSE NO. 12-15-00055-CR IN THE
THE 12 th DISTRICT COURT OF APPEALS FOR THE
STATE OF TEXAS JORGE ZEPEDA,
APPELLANT V.
THE STATE OF TEXAS,
APPELLEE STATE’S REPLY TO APPELLANT’S BRIEF TO THE HONORABLE COURT OF APPEALS :
Comes now the State of Texas, through the undersigned Assistant Criminal District Attorney, and respectfully urges this Court to overrule Appellant’s alleged
errors and affirm the judgment of the trial court in the above-numbered cause.
S TATEMENT OF THE ASE Appellant, Jorge Zepeda, was charged by information in Cause No. 002-82159- 14, in the County Court at Law #2 of Smith County, Texas, with the offense of
Possession of a Marijuana. On February 11, 2015, the parties met in court, Appellant
with counsel, and after being fully admonished according to the law, Appellant
entered a negotiated plea of "Guilty" to the offense alleged by the information. (RR
2: 5). After hearing evidence, the Court imposed the agreed sentence sentence of two
years deferred adjudication probation and a $100 fine. (RR 2: 7).
Appellant gave timely notice of appeal and a brief has been filed with the Court. The State's response brief will be timely filed if the Court grants the attached
motion for extension.
S TATEMENT OF F ACTS Appellant has stated the essential nature of the evidence presented at the hearing on his motion to suppress. In the interest of judicial economy any other facts
not mentioned herein that may be relevant to disposition of Appellant's point of error
will be discussed in the State's arguments in response to that point.
R EPLY TO A PPELLANT ’ S P OINTS OF E RROR AND SUMMARY OF ARGUMENT OUNTERPOINT O NE : The Trial Court correctly overruled Appellant’s motion to suppress where the record shows that the officer involved fully followed the
vehicle impound and inventory policies of the Tyler Police Department.
A. Summary of Argument
Police discovered two baggies of marijuana in Appellant's vehicle during an inventory search after impounding the vehicle. (RR 2: 5-6). Appellant argues that the
trial court incorrectly denied his motion to suppress evidence where the officer
involved failed to fully follow the allegedly inconsistent vehicle impound policy of
the Tyler Police Department (hereinafter "TPD") after stopping Appellant for a traffic
violation and discovering that he was an excluded driver on the vehicle's insurance
policy. (RR 1: 8-11). However, the record shows that the officer fully complied with
the mandatory and discretionary portions of the TDP policies.
B. Vehicle Inventory is an Exception to the Warrant Requirement
Valid vehicle inventory searches are an exception to the Fourth Amendment's warrant requirement. Colorado v. Bertine , 479 U.S. 367, 371, 107 S. Ct. 738, 93 L.
Ed. 2d 739 (1987). Law enforcement officials may make a warrantless inventory
search of a lawfully impounded vehicle, provided that the inventory is conducted in
good faith and in accordance with standardized criteria or an established routine. Id .
at 371-74; see also Trujillo v. State , 952 S.W.2d 879, 882 (Tex.App. - Dallas 1997,
no pet .) (inventory search is reasonable under Fourth Amendment so long as it is
performed in accordance with standard police procedures and not undertaken in bad
faith or for sole purpose of investigation); Moskey v. State , 333 S.W.3d 696, 700
(Tex.App. - Houston [1 st Dist.] 2010, no pet .).
Inventory searches "serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen or vandalized property,
and to guard the police from danger." Bertine , 479 U.S. at 372; see also Delgado v.
State , 718 S.W.2d 718, 721 (Tex.Crim.App. 1986). The inventory search must be
designed to produce an inventory of the vehicle's contents and must not be a "ruse for
a general rummaging in order to discover incriminating evidence." Florida v. Wells ,
495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed. 2d 1 (1990); see also Richards v. State , 150
S.W.3d 762, 771 (Tex.App. - Houston [14 th Dist.] 2004, pet. ref'd ). "The individual
police officer must not be allowed so much latitude that inventory searches are turned
into 'a purposeful and general means of discovering evidence of crime.'" Uballe v.
State , 439 S.W.3d 380, 384 (Tex. App.—Amarillo 2014, pet. ref'd ) quoting Wells ,
495 U.S. at 4.
The law further provides that the State bears the burden of proving the impounding of the vehicle and the subsequent inventory search are lawful. Delgado ,
718 S.W.2d at 721; see also Benavides v. State , 600 S.W.2d 809, 810 (Tex.Crim.App.
1980) (subsequent inventory search is proper when the vehicle's impoundment is
proper). A vehicle may be validly impounded and inventoried when the driver is
removed from the automobile and placed under custodial arrest, and no other
alternatives are available to ensure the protection of the driver's property. Delgado ,
718 S.W.2d at 721; see also Garza v. State , 137 S.W.3d 878, 882 (Tex.App. -
Houston [1 st Dist.] 2004, pet. ref'd ).
The subsequent inventory search is proper if the impounding agency had an inventory policy and the policy was followed. Moberg v. State , 810 S.W.2d 190, 195
(Tex.Crim.App. 1991); Roberts v. State , 444 S.W.3d 770, 778 (Tex. App.—Fort
Worth 2014, pet. ref'd ). To be lawful, an inventory search must not deviate from the
impounding agency's policy. Moberg , 810 S.W.2d at 195; Roberts , 444 S.W.3d at
778.
C. The Standard of Review
A trial court’s denial of a motion to suppress is generally reviewed for abuse of discretion. Oles v. State , 993 S.W.2d 103, 106 (Tex.Crim.App. 1999); Willis v.
State , 192 S.W.2d 585, 590 (Tex.App. - Tyler 2006, pet. ref’d ), citing Villarreal v.
State , 935 S.W.2d 134, 138 (Tex.Crim.App. 1996).
In reviewing a trial court’s ruling on a motion to suppress, appellate courts must give great deference to the trial court’s findings of historical fact as long as the
record supports the findings. Guzman v. State , 955 S.W.2d 85, 89 (Tex.Crim.App.
1997). This Court should afford the same amount of deference to the trial court’s
rulings on “mixed questions of law and fact” if the resolution of those ultimate
questions turns on an evaluation of witness credibility and demeanor. Id. Appellate
courts must view the record in the light most favorable to the trial court’s ruling and
sustain the trial court’s ruling if it is reasonably correct on any theory of law
applicable to the case. Id . The Court of Criminal Appeals has decided that it is
improper for an appellate court to weigh the factual sufficiency of the evidence
elicited at the suppression hearing because the trial judge is the sole and exclusive
trier of fact and judge of the credibility of the witnesses, as well as the weight to be
given their testimony. DuBose v. State , 915 S.W.2d 493, 496 (Tex.Crim.App. 1996).
Additionally, the trial judge is also the initial arbiter of the legal significance of those facts. Id .; T EX . R. E VID . 104 (a). On appeal, the Court should limit its review
of the trial court’s rulings, both as to the facts and the legal significance of those
facts, to a determination of whether the trial court has abused its discretion. Id. The
Court of Criminal Appeals has specifically instructed appellate courts to give
deference to the trial court’s ruling with regard to a motion to suppress. State v.
Carter , 915 S.W.2d 501, 504 (Tex.Crim.App. 1996). Even if this Court would have
reached a different result on the issue of suppression, as long as the trial court’s
rulings are at least within the “zone of reasonable disagreement,” the Court should not
intercede. Id . at 496-97. The Fourth Amendment and the Texas Constitution forbids
only unreasonable searches and seizures. U.S. C ONST . amend. IV; T EX . ONST . art.
I, § 9; Brimage v. State , 918 S.W.2d 466, 500 (Tex.Crim.App. 1996).
D. Application of the Law to the Facts.
Appellant complains that the trial court abused its discretion in denying his motion to suppress. First, because the officer involved did not fully follow TPD
impoundment policy. (Appellant's brief at 23-29). Secondly, because that policy itself
is not reasonable where it is "inconsistent as to what actions are required in the
decision-making process" where "some portions of the policy indicate that vehicles
'shall' be towed while other portions say that there are mitigating circumstances when
towing should not occur." Id . at 15.
The State called a single witness to testify at the motion to suppress hearing.
Tyler Police Officer Charles Boyce testified that he pulled Appellant over for failing
to "signal the required distance." (RR 1: 8). See T EX . T RANSP . ODE § 545.104 (b)
(Vernon 2014). Prior to the start of testimony, Appellant specifically told the trial
court that he was "not contesting the reason for the traffic stop." (RR 1: 5). The law
provides that an officer may lawfully stop and detain a person for a traffic violation.
McVickers v. State , 874 S.W.2d 662, 664 (Tex.Crim.App. 1993).
After stopping Appellant, the officer testified that he could smell the "aroma of marijuana" although he did not document that in his report. (RR 1: 8). When asked
for proof of insurance on the vehicle he was operating, Appellant produced an
insurance card which indicated on its face that he was an "excluded driver" on the
insurance policy. (RR 1: 8-9). This raised "red flags" for the officer and he requested
through dispatch a search of Appellant's driving history. (RR 1: 9). He was alerted by
dispatch that Appellant had prior convictions for "DWLI" (Driving Without a
License) and "FMFR" (Failure to Maintain Financial Responsibility). Id . The
conviction for "FMFR" was due to operating a vehicle without it being insured. Id .
As a result of this driving history, Officer Boyce told the Court that he decided that "I was going to tow the vehicle per our policy." (RR 1: 10). According to the
"Tyler Police Department policy for impoundment" subsection D:
D . If the driver's license check return indicates that the driver does not possess a driver's license or the license is suspended for not having insurance and the driver is unable to show proof of financial responsibility on the vehicle being operated, the officer shall impound the vehicle. No prior conviction for failing to maintain financial responsibility is necessary when the driver does not possess a driver's license. prior to impounding a vehicle under this policy, the officer shall comply with the same requirements as listed in requirements in subsections B through F as listed under "Accidents" in the policy. (emphasis supplied).
(RR 1: 10; see also State's Exhibit 1, p.1).
According to Officer Boyce, an insurance card which specifically lists a person as an "excluded driver" means that "there is no insurance on the vehicle when they
are operating the vehicle." (RR 1: 11). It was also his believe that if he let Appellant
to continue to drive the vehicle and an accident occurred, "[t]hey could come back
and sue the department plus sue me." (RR 1: 11). Officer Boyce further testified that
in his opinion he was mandated by departmental policy to tow Appellant's vehicle
under subsection C as well which provides: . If the officer, either through a driver's license check or through
personal contacts, determines that the driver has been previously convicted for operating a motor vehicle with no financial responsibility, the officer shall impound the vehicle. Before the officer impounds a vehicle under this policy, the officer shall comply with the requirements in Subsections B - F under "Accidents" in the policy. (emphasis supplied).
(RR 1: State's Exhibit 1, p.1).
It was Officer Boyce's belief that the smell of marijuana in the vehicle gave him probable cause to search it without a warrant. (RR 1: 13). This belief has long been
supported by the law. See , e.g. Moulden v. State , 576 S.W.2d 817, 818-20
(Tex.Crim.App. 1978) (police officers who stopped motorist and smelled odor of
burnt marihuana coming from inside car had probable cause to search car).
Nevertheless, the officer decided to impound the vehicle and conduct an inventory
instead. (RR 1: 13). He then conducted an inventory of the vehicle pursuant to TPD
inventory policy which uncovered the marijuana in an ash tray. (RR 1: 13-14). [1]
A video of the stop and Officer Boyce's actions during it was played for the trial court. (RR 1: 15). On the video, the officer is apparently heard asking Appellant
*15 when was the last time he had smoked marijuana in the vehicle. (RR 1: 15). He asked
Appellant several other questions about marijuana to "buy[] time until my back up got
there." (RR 1:16).
On cross-examination, it was noted that, although Officer Boyce asked Appellant questions on the video about marijuana, he did not specifically tell
Appellant that he smelled marijuana, and he also did not mention the smell in his
report. (RR 1: 17). The officer explained that he did not search pursuant to the smell
of marijuana because "I couldn't do that without my backup." (RR 1: 17). He also
noted that the smell of marijuana "could have been there from days ago." (RR 1: 18,
21). He did not note in his report that he smelled marijuana in Appellant's vehicle
because "I dropped the ball." (RR 1: 19).
Officer Boyce stated that he believed that Appellant's father, Mr. Juan Zepeda, was covered by insurance for the vehicle Appellant was driving. (RR 1: 24). He did
not contact Appellant's father before towing the vehicle because his father had
already allowed Appellant to drive the vehicle. (RR 1: 24). Officer Boyce was of the
opinion that there were no mitigating circumstances under the TPD impoundment
policy which prohibited him from having the vehicle impounded. (RR 1: 25). He
testified that the TPD policy requires that an officer should "consider" mitigating
circumstances, but he maintained that he did not feel there were any existing. (RR
1: 26). He did not take Appellant's phone, but left it in the vehicle where it could not
be used because he was not letting Appellant get back into the vehicle for reasons of
officer safety. (RR 1: 26-27). He would not have let Appellant call to have his father
come because "his father had allowed an unlicensed driver to operate a motor vehicle
with insurance that has him as an excluded driver." (RR 1: 28).
On re-direct it was finally established that, in addition to being an excluded driver and having a prior FMFR conviction, Appellant's driver's license was also
suspended at the time of the stop. (RR 1: 33). This meant that TPD policy mandated
towing under both subsections C and D cited above. (RR 1: 33). Officer Boyce stated
that he did, as required by TPD policy, consider possible mitigating circumstances but
felt that none existed. (RR 1: 34). Had he not discovered the marijuana during the
inventory, Officer Boyce would have ensured that Appellant had a way to get home,
or would have given him a ride. (RR 1: 34).
After a somewhat redundant round of re-cross and re-direct, the State rested it's case. (RR 1: 40). Appellant then called Mr. Juan Zepeda, his father, to verify that the
vehicle was insured and that he owned it. (RR 1: 41). He had thought that Appellant
was covered on his policy, but an insurance company representative later informed
him that he was not. (RR 1: 42). He also testified that the no-insurance ticket issued
to Appellant by Officer Boyce was subsequently dismissed in city court because
Appellant was told he didn't have to pay because he was insured. (RR 1: 42). He also
testified that he was home and available to pickup the vehicle at the time Appellant
was arrested. (RR 1: 42). On cross-examination, Mr. Zepeda agreed that Appellant
was an excluded driver on his insurance policy when he was stopped by Officer
Boyce. (RR 1: 45). After Mr. Zepeda was excused from the stand, both sides rested
and closed. (RR 1: 45).
Regarding mitigating circumstances, the TDP policy on "Impoundment for Failure to Maintain Financial Responsibility" provides that:
B . Impoundment should generally be restricted to those cases where the driver admits to not having financial responsibility or the officer is able to verify that no coverage exists.
(RR 1: State's Exhibit 1, p. 2).
The same policy states on its face that there are seven mitigating circumstances that officers "should" consider before impounding a vehicle: (1) Time of day; (2)
Location; (3) Ability of operator to safely leave location; (4) Availability of other
units to assist with the safe removal of other occupants; (5) Call demand; (6) Weather
conditions; and (7) Lighting. (RR 1: State's Exhibit 1, p. 2).
Of these seven, it is submitted that only the first three have any relation to the offense in this case. Officer Boyce admitted that he considered these. The first two
would have been considered in his decision to not allow Mr. Juan Zepeda to be called
when the officer decided that "his father had allowed an unlicensed driver to operate
a motor vehicle with insurance that has him as an excluded driver." (RR 1: 28). The
third circumstance, "Ability of operator to safely leave location" was obviously not
a concern once Appellant was arrested after the marijuana was found in his car.
Nevertheless, Officer Boyce testified that he otherwise would have made sure that
Appellant had a ride home after the vehicle was towed or he would have given him
a ride. (RR 1: 34, 36).
1. Officer Boyce followed TPD Policy
Appellant argues that Officer Boyce failed to follow TPD policy essentially by not contacting his father to come and take the vehicle. (Appellant's brief at 24-26).
However, nowhere in the TPD policy does it state that the officer must first call a
relative to come and get the vehicle before it can be impounded.
More importantly, the same policy mandated for two separate reasons that "the officer shall impound the vehicle." (RR 1: State's Exhibit 1, p.1 subsections C & D).
Similarly, Officer Boyce complied with TPD policy by "considering" possible
mitigating circumstances. (RR 1: State's Exhibit 1, p. 2 section 07.506 (A)). Officer
Boyce's testimony is sufficient to show that an inventory search policy existed and
that the policy was followed. See Mayberry v. State, 830 S.W.2d 176, 181 (Tex.App. -
Dallas 1992, pet. ref'd ) citing Moberg , 810 S.W.2d at 13.
The trial court in denying the motion to suppress did state, "It's clear the officer didn't consider any mitigating circumstances . . ." (RR 1: 52). However, that finding
is obviously inconsistent with Officer Boyce's repeated testimony that he did in fact
consider the possibility of mitigating circumstances, but he did not believe that any
existed. (RR 1: 25, 28, 34, 36-39).
Appellant refers the Court to Garza v. State , supra wherein the Court set out the State's burden to show a lawful impoundment. That Court held that the State may
satisfy its burden on a lawful impoundment by showing: (1) the driver was arrested,
(2) no alternatives other than impoundment were available to insure the automobile's
protection, (3) the impounding agency had an inventory policy, and (4) the policy was
followed. Id . at 882. Each of these elements are present in this case and most are
found in the testimony of Officer Boyce.
(i) The driver was arrested.
First, the record shows that Appellant, the driver of the vehicle, was arrested for possession of the marijuana that was discovered. (RR 1: 4). The State must
concede that Appellant was not arrested until after the inventory search had begun.
However, probable cause existed to arrest Appellant from moment it was discovered that he was driving with a suspended license and without insurance. The
undersigned was unable to find any authority ruling on a similar factual situation
which indicates whether the timing of the arrest is fatal in an impoundment review.
Appellant has provided no authority which stands for the proposition that it is.
More importantly, once Officer Boyce was aware that Appellant's license was suspended and that Appellant was excluded from the insurance policy covering the
vehicle, he was obviously unable to legally let Appellant drive the vehicle away from
the scene. Appellant was already twice in violation of the law by driving in the first
place. And, the officer was specifically aware of the potential civil liability to TPD
if Appellant subsequently damaged anyone should he be let go in the vehicle. (RR 1:
11). This very situation appears to have been contemplated by the TPD impoundment
policy which makes it mandatory for an officer to impound a vehicle under such
circumstances without any mention of an arrest being made. (RR 1: 10; see also
State's Exhibit 1, p.1 subsection D).
Consequently, where the driver cannot be legally allowed to drive a vehicle due to a discovered lack of a license and/or insurance, the State suggests that the arrest
element has in essence been met. There is seemingly little or no substantial difference
between whether the driver is under arrest or is otherwise unable to legally operate
a motor vehicle - he is equally precluded from driving the vehicle away from where
it was stopped under either scenario. And, regardless of the driver's status, both
situations can still meet the other required elements of a lawful impoundment.
Thus, it is submitted that the facts of this case are akin to situations where a driver is arrested and no other occupant of the vehicle has a valid license to drive. See
e.g. Stephen v. State , 677 S.W.2d 42, 43-44 (Tex.Crim.App. 1984) (impoundment
proper where driver arrested and passenger was unable to furnish any kind of
identification or a driver's license).
(ii) No alternatives other than impoundment were available .
Secondly, while Officer Boyce did not call Appellant's father, neither the TPD impoundment policy, nor the law, require that an officer must make any attempt
locate someone to come and pick up the vehicle. See (RR 1: State's Exhibit 1); see
also Greer v. State , 436 S.W.3d 1, 7 (Tex.App. - Waco 2014, no pet. ) ("We note that
peace officers need not independently investigate possible alternatives to
impoundment absent some objectively demonstrable evidence that alternatives did,
in fact, exist.") citing Mayberry , 830 S.W.2d at 180 (as a factor in determining lawful
impoundment courts have considered "the availability of someone at the scene of
the arrest to whom the police could have given possession of the vehicle.")
(emphasis supplied).
(iii) The impounding agency had an inventory policy .
Thirdly, the evidence is undisputed that the Tyler Police Department has an impoundment policy. (RR 1: State's Exhibit 1).
(iv) The impoundment policy was followed .
Finally, the evidence supports that Officer Boyce was fully aware of the TPD impoundment policy and consciously followed it. (RR 1: 10-12, 24-26, 33-34).
Given that the evidence in this case met the required elements, constructively or directly, the trial court's denial of Appellant's motion to suppress, when viewed in
"the light most favorable to the trial court’s ruling," was not an unreasonable abuse
of the court's discretion. See Guzman , 955 S.W.2d at 89.
2. The TPD Impoundment Policy is not Inconsistent
Appellant further alleges that the trial court's denial of his motion to suppress was unreasonable and should also be overturned where the TPD impoundment policy
is inconsistent or unclear. (Appellant's brief at 15, 23-24). However, while Appellant
briefly noted in closing what he thought was an inconsistency in that policy, he did
not argue it as a basis for suppression at trial. (RR 1: 5, 49-51). As such, Appellant
has waived this complaint. See State v. Mercado , 972 S.W.2d 75, 78 (Tex.Crim.App.
1998) (holding points not argued at trial are deemed waived on appeal); see also
Brown v. State , 6 S.W.3d 571, 582 (Tex.App. - Tyler 1999, pet. ref'd ) (to preserve
error, the complaint on appeal must comport with the objection made at trial).
Alternatively, the TPD policy is not inconsistent or unclear for the mere fact that it allows officers to consider mitigating circumstances in what would otherwise
be a situation calling for a mandatory impoundment of a vehicle. The policy must out
of necessity cover every potential factual situation that an officer may face while
patrolling the streets of Tyler.
The law has long recognized that a police officer must necessarily exercise his discretion in deciding whether to charge a criminal offense. See Rippy v. State , 53
S.W.2d 619, 625 (Tex.Crim.App. 1932) ("Peace officers are not lawyers or judges,
but men charged with the conservation of the peace, and in most cases the protection
of society, and the exercise of their discretion in matters such as are here set forth
should not be overturned or revised except possibly in cases clearly evidencing some
abuse . . ."). Where an officer may lawfully exercise discretion in charging an
individual with an offense, the grant of discretion here in deciding whether to
impound a vehicle based upon a consideration of potentially mitigating circumstances
is certainly not unreasonable. It is in fact equally necessary to provide the officer with
the flexibility that may required to meet whatever unusual circumstances that may
arise at a traffic stop.
The trial court found that there existed a conflict in the TPD policy. (RR 1: 52).
The State respectfully disagrees. But, in any event, the trial court did not base its
denial of Appellant's motion to suppress upon a lack of conflict or clarity in the TPD
impoundment policy. The court denied Appellant's motion upon the fact that it felt
the officer complied with the mandatory portion of the TPD policy. (RR 1: 52) ("So
based on that basis, the shall part, I am going to deny your motion to suppress."). As
argued above, the State believes that there was no abuse of discretion in that ruling.
The Court of Criminal Appeals has specifically instructed appellate courts to give deference to the trial court’s ruling with regard to a motion to suppress. State v.
Carter , 915 S.W.2d at 504. Even if this Court would reach a different result on the
issue of suppression, as long as the trial court’s rulings are at least within the “zone
of reasonable disagreement,” the Court should not intercede. Id . at 496-97.
For these reasons, there is no merit to Appellant's Point of Error and it should be overruled.
/s/ *25 P RAYER
WHEREFORE , for the reasons stated herein, the State of Texas prays that the Court of Appeals overrule Appellant’s Points of Error and affirm the judgment of the
County Court at Law #2, Smith County, Texas, in this case.
Michael J. West Respectfully submitted, D. MATT BINGHAM Smith County Criminal District Attorney September 18th _________________________ Michael J. West
Asst. Criminal District Attorney Bar I.D. No. 21203300 100 N. Broadway, 4 th Fl.
Tyler, Texas 75702 (903) 590-1720
(903) 590-1719 (fax) /s/ ERTIFICATE OF C OMPLIANCE The undersigned hereby certifies that the pertinent sections of the State’s Reply Michael J. West
Brief in the above numbered cause contain 4,082 words, an amount which complies
with Texas Rule of Appellate Procedure 9.4 (i) (Vernon 2015).
_________________________ Michael J. West
Asst. Criminal District Attorney Bar I.D. No. 21203300 *26 /s/ ERTIFICATE OF S ERVICE The undersigned hereby certifies that on this _____ day of ________________, 2015, the following have been completed:
(1) The original of the State’s Response to Appellant’s Brief in the above numbered cause has been sent via electronic filing to the Clerk of the Court of Twelfth Court of Appeals.
(2) A legible copy of the State’s Response to Appellant’s Brief in the above numbered cause has been sent via electronic filing to: Michael J. West Mr. Jeffery Sanders Attorney at Law
120 S. Broadway, Ste. 112
Tyler, Texas 75702
_________________________ Michael J. West
Asst. Criminal District Attorney Bar I.D. No. 21203300
[1] Appellant has not attacked the TPD inventory policy on any grounds.