                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


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JOHN DAVISON NIES II,                                               No. 08-16-00011-CR
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                               Appellant,                              Appeal from the
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V.                                                                   207th District Court
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THE STATE OF TEXAS,                                               of Comal County, Texas
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                              Appellee.                              (TC# CR2014-543)
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                                     OPINION ON MOTION

       The State has filed a motion requesting that the Court take judicial notice of the written

inventory policy of the Comal County Sheriff’s Office. The motion is denied.

       John Davis Nies II was charged by indictment with possession of less than one gram of

methamphetamine. The indictment alleges that the offense occurred on November 8, 2013. Nies

filed a written motion to suppress asserting that evidence was unlawfully seized from his vehicle

without a warrant, but he did not obtain a ruling before trial. After the trial began, the parties and

the trial court had a discussion outside of the jury panel’s presence regarding the suppression

motion. The parties stipulated to the facts as set forth in the arresting officer’s offense report.

The report showed that Nies was stopped for a traffic offense on November 8, 2013, taken into

custody for driving while license suspended, and the methamphetamine was found during an
inventory search of the vehicle. The State did not introduce a copy of the pertinent inventory

policy nor did it ask the trial court to take judicial notice of the policy. The trial court denied the

motion to suppress and Nies entered a plea of guilty.

       After the parties filed their briefs, the State filed its motion asking this Court to take

judicial notice of the inventory policy of Comal County Sheriff’s Office. The State’s motion is

supported by two affidavits and the attachments to those affidavits. The first affidavit is from

Jennifer Smith, who is the Open Records/Media Coordinator for Comal County and the

custodian of records for the Comal County Sheriff’s Office. Attached to her affidavit are four

pages from the General Manual of the Sheriff’s Office which set forth the inventory policy.

Smith specifically states in her affidavit that the inventory policy has existed since May 16,

2011. The second affidavit is from Tiffany Leal who is the Chief Civil Prosecutor for Comal

County. Leal avers that the Sheriff’s Office has previously released its General Manual in

response to a request made pursuant to the Public Information Act.

       Rule 201(b) permits a court to take judicial notice of a fact that is not subject to

reasonable dispute because it is generally known within the court’s territorial jurisdiction or it

can be accurately and readily determined from sources whose accuracy cannot reasonably be

questioned. TEX.R.EVID. 201(b). An appellate court has the discretion to take judicial notice of

adjudicative facts that are matters of public record. See TEX.R.EVID. 201(b), (c); see In re Estate

of Hemsley, 460 S.W.3d 629, 638 (Tex.App.--El Paso 2014, pet. denied); Gaston v. State, 63

S.W.3d 893, 900 (Tex.App.--Dallas 2001, no pet.). Generally, appellate courts take judicial

notice of facts outside the record only to determine jurisdiction or to resolve matters ancillary to

decisions which are mandated by law. Hemsley, 460 S.W.3d at 638. Appellate courts are




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reluctant to take judicial notice of matters which go to the merits of a dispute. Hemsley, 460

S.W.3d at 639.

       By its motion, the State is asking the Court to judicially notice facts which go to the heart

of the dispute on appeal, namely, whether the methamphetamine was discovered on or about

November 8, 2013 during a valid inventory search. A police officer’s inventory of the contents

of an automobile is permissible under the Fourth Amendment if conducted pursuant to a lawful

impoundment of the vehicle. South Dakota v. Opperman, 428 U.S. 364, 375-76, 96 S.Ct. 3092,

3100, 49 L.Ed.2d 1000 (1976); Moskey v. State, 333 S.W.3d 696, 700 (Tex.App.--Houston [1st

Dist.] 2010, no pet.). An inventory search must be conducted in good faith and pursuant to

reasonable standardized police procedure. Moskey, 333 S.W.3d at 700, citing Colorado v.

Bertine, 479 U.S. 367, 374, 107 S.Ct. 738, 742, 93 L.Ed.2d 739 (1987). The State bears the

burden of establishing that the police conducted a lawful inventory search. See Gauldin v. State,

683 S.W.2d 411, 415 (Tex.Crim.App. 1984), overruled on other grounds by Heitman v. State,

815 S.W.2d 681 (Tex.Crim.App. 1991). The State typically satisfies its burden regarding the

propriety of an inventory search through a police officer’s testimony that (1) an inventory policy

existed, and (2) that policy was followed. See Harris v. State, 468 S.W.3d 248, 256 (Tex.App.--

Texarkana 2015, no pet.). The offense report admitted into evidence does not reflect that an

inventory policy existed at the time the officer performed the challenged search. The State is

attempting to satisfy the first part of the test by asking the Court to take judicial notice of the

inventory policy and of Smith’s testimony by affidavit that the policy has been in existence since

at least May 16, 2011. We decline to take judicial notice of these facts for two reasons. First,

the State has failed to show that the facts set forth in the affidavits cannot reasonably be




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questioned. Second, the facts that the State asks us to judicially notice pertain directly to the

merits of the issue on appeal. The State’s motion is denied.



August 3, 2016
                                             YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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