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COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI
_______________________________________________________________

THE STATE OF TEXAS,                                                     Appellant,

v.

KEITHAD LAMON LARUE AND SAMMEY RAY LUSK,           Appellees.
_______________________________________________________________

On appeal from the 24th  District Court
of Victoria County, Texas.
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O P I N I O N

Before Justices Yañez, Rodriguez, and Kennedy

Opinion by Justice Kennedy 

        This appeal is before this Court upon abatement and remand by the Texas Court
of Criminal Appeals
 with instructions that we address the State’s arguments
concerning the question of the officer’s legal justification for seizing a car apart from
any issue as to the presumption under Section 31.04(b)(2) of the Penal Code.
  The
car was shown to contain rocks of cocaine.  The car was a rental car upon which a
“repo” had been requested by the rightful owner, a Florida car rental company.  We
held that the notice requirement contained in 31.04(b)(2) had not been complied with
and, therefore, the car was improperly seized.
         The court of criminal appeals, in its order, held that we had failed to address
whether the officer had reasonable suspicion or probable cause to believe an offense
had occurred, apart from the question of whether the officer was legally justified in
seizing the car under the provisions of 31.04(b)(2).  We will proceed to address this
issue.  In so doing, we will follow the proposition of law set forth in Romero v. State,
800 S.W.2d 539, 543 (Tex. Crim. App. 1990) (all citations omitted):
On appeal, the appellate court does not engage in its own factual review
but decides whether the trial judge’s fact findings are supported by the
record.  If the trial court’s findings of fact are supported by the record,
an appellate court is not at liberty to disturb them, and on appellate
review, we address only the question of whether the trial court
improperly applied the law to the facts.
 
Also:
If the trial judge’s decision is correct on any theory of law applicable to
the case, however, it will be sustained.  This principle holds true even
when the trial judge gives the wrong reason for his decision.
 
Id. at 543.
         In view of the court of criminal appeals’ holding that the failure to meet the
presumptions [provided for in 31.04(b)(2)] does not mean that theft of service is not
or cannot be proved, we now look to all of the evidence heard by the trial judge to
determine whether he abused his discretion in granting the motion to address the
evidence found in the trunk of the car.
         The evidence heard by the trial judge in the motion to suppress includes the
following:
         On November 5, 1997, Officer Louis Boldt was patrolling the Anna Blackley
government housing development in Victoria County.  Boldt had been assigned to
patrol government housing for four years.  Boldt encountered appellee LaRue and,
because he was not familiar with LaRue, asked for identification and ran a warrant
check on him.  When the check came back showing there were no warrants out on
LaRue, Boldt thanked him and began walking back to his personal truck to continue
patrolling the area.
         While returning to his truck, Boldt briefly encountered a second individual, later
identified as appellee Lusk, near a new white Chevrolet Cavalier convertible parked on
the street.  Not recognizing the car, Boldt decided to run a license plate check.  Boldt
drove his truck down the block and waited for the check to be completed.  While
waiting, Boldt observed Lusk and LaRue get into the car along with two women and
an infant.
         The license check reflected that the car, which had Texas license plates, was
registered to a Florida rental car company.  Boldt decided to speak with appellees
about the status of the car.  Boldt drove his truck back down the street and parked
behind the car which had the ignition on but had not yet been moved.  Boldt got out
of his truck and began walking toward the car, at which time Lusk got out of his car
and approached Boldt.
         Lusk informed Boldt that he did not have a driver’s license with him, nor did he
have a rental contract for the car.  Lusk gave Boldt what he said was his driver’s
license number, identified himself as Sammey Johnson, and gave his date of birth. 
Boldt ran a check on the driver’s license number and found that it did not belong to
Sammey Johnson, but was the number of an entirely different individual.  In addition,
when Boldt ran a check on the name Sammey Johnson and the date of birth, he found
no record of any such person.
         Lusk told Boldt that the car was a rental but that he did not know whether or
not his name was on the rental contract as a permitted driver.  Lusk explained that his
brother had rented the car in Florida and then driven to Texas at which time his brother
had allowed Lusk to drive the car for the days remaining on the contract.  Boldt
decided to contact the rental car company to determine whether Lusk was authorized
to have the car.
         Boldt had the dispatcher call the rental company and inquire as to whether
Sammey Johnson was listed on the contract as a driver.  The rental company
responded that the credit card used to rent the car had been declined, the car was nine
days overdue for return, and the company had placed a “repo” on the car and wanted
Boldt to take possession of it.  Boldt informed appellees of these facts, stated that he
would be impounding the car, and asked for the keys.
         Boldt asked appellees if there was any personal property in the car which they
wanted returned to them before the car was impounded.  Lusk replied that some of
his personal property was in the passenger compartment of the car.  While emptying
the passenger compartment of Lusk’s personal property, Boldt discovered some papers
indicating that Lusk, who had identified himself as Sammey Johnson, was actually
Sammey Ray Lusk.
         Appellees then told Boldt that there was additional personal property, belonging
to both of them, in the trunk of the car.  Boldt opened the trunk to give appellees the
remaining personal items and discovered plastic bags containing what appeared to be
a number of rocks of crack cocaine.
         Article 18.16 of the Texas Code of Criminal Procedure provides:
All persons have a right to prevent the consequences of theft by seizing
any personal property which has been stolen and bringing it, with the
supposed offender, if he can be taken, before a magistrate for
examination, or delivering the same to a peace officer for that purpose. 
To justify such seizure, there must, however, be reasonable ground to
suppose the property to be stolen, and the seizure must be openly made
and the proceedings had without delay.
  
Tex. Code Crim. Proc. Ann. art. 18.16 (Vernon 1977).

         Article 31.04(a)(3) of the Penal code provides:
 
A person commits theft of service if, with intent to avoid payment for
service that he knows is provided only for compensation:
 
(3)having control of personal property under a written rental
agreement, he holds the property beyond the expiration of the
rental period without the effective consent of the owner of the
property, thereby depriving the owner of the property of its use in
further rentals.

Tex. Penal Code Ann. § 31.04(a)(3) (Vernon 2000).

         The evidence heard by the trial judge during the hearing on the motion to
suppress was undisputed.  We hold that the trial court erred in suppressing the
evidence found in the car because the car could have been seized by virtue of either
CCP 18.16, supra, or Penal Code § 31.04(a)(3), supra.  We reverse the holding of the
trial court that “the officer had no lawful authority, based upon the evidence as
presented, to impound the vehicle, and therefore, it was not a reasonable seizure, and
therefore, the evidence is suppressed being the controlled substance as obtained from
the search of the truck.”  We remand the case to the trial court for further
proceedings.
                                                                        NOAH KENNEDY
                                                                        Retired Justice

Publish.  Tex. R. App. P. 47.3.

Opinion delivered and filed this 
the 26th day of July, 2001.

                  
