                                      NO. 07-10-0289-CR

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                          JULY 21, 2011


                                 ANDREW JOSEPH WILSON,

                                                               Appellant
                                                  v.

                                    THE STATE OF TEXAS,

                                                                Appellee
                              ___________________________

           FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY;

           NO. 1146243D; HONORABLE RUBEN GONZALEZ, PRESIDING


                                    Memorandum Opinion


Before QUINN, C.J., PIRTLE, J., and BOYD, S.J.1

      Andrew Joseph Wilson was convicted of unlawfully posessing a firearm after

pleading guilty to the charge. On appeal, he challenges the trial court’s denial of his

motion to suppress the firearm, which weapon was discovered in his vehicle. We affirm

the judgment.

       On January 21, 2009, Officers Nickolas Brown and Ryan Sparks were driving

down a residential street in a moderate to high crime area in Fort Worth. It was around
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       John T. Boyd, Senior Justice, sitting by assignment.
2:00 a.m. They noticed a vehicle parked on the street facing the wrong direction. They

decided to cite it, and as they began to place the citation on the vehicle, appellant was

discovered sitting in it.

       When questioned why he was so parked, appellant replied that he was waiting

for his uncle. However, he was unable to supply a last name for the man and then

admitted that he was waiting for a friend.             The officers obtained appellant’s

identification, checked it with dispatch, and discovered that he had outstanding arrest

warrants. This resulted in their placing him under arrest. At that point, the officers also

decided to impound the car and contacted a wrecker for that purpose. Before the

wrecker removed the vehicle, it was searched, and the officers found a handgun in the

console during that search. It was that evidence that appellant sought to suppress.

And, he attempted to do so on the grounds that the search was neither a permissible

search incident to arrest nor an inventory search.

       We review the trial court’s ruling on a motion to suppress under the standard

discussed in Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). In doing so, we

defer to the trial court’s resolution of historical fact but review de novo its interpretation

of the law.    Id. at 493.   So too do we look at the totality of the circumstances to

determine the legitimacy of the search. Kothe v. State, 152 S.W.3d 54, 62-63 (Tex.

Crim. App. 2004).

       Appellant argues that because the gun was not accessible to him at the time the

search was conducted, it could not be a search incident to arrest. Thus, it violated the

tenets of Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Per

the latter, police may search a vehicle incident to arrest only it if is reasonable to believe

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that the arrestee might access the vehicle at the time of the search or that the vehicle

contains evidence of the offense underlying the arrest. Id. 556 U.S. at __; 129 S.Ct.

1719. Officer Brown conceded at trial that appellant was not capable of returning to his

vehicle and that there was no reason to believe there was any evidence in the car

pertaining to his arrest.

       Yet, Brown also testified that the officers were unable to leave the vehicle where

it was located because it was parked illegally, they knew of no one with whom to leave it

and, consequently, they decided to impound it.2                Furthermore, the wrecker was

contacted before the search occurred and the gun found. Additionally, Officer Sparks

testified that appellant’s vehicle had property in it that the officers did not want to be

liable for in the event of theft.

       Finally, exhibits at the suppression hearing included a copy of the Fort Worth

vehicle impoundment procedures and a copy of the inventory from the vehicle. The

former authorized impoundment if the vehicle was lawfully parked and the arrestee

asked that another take control of it. Neither condition applied, however, because the

car was illegally parked and appellant never sought to make a request.

       Police officers may lawfully inventory the contents of a vehicle after an arrest if

the inventory is conducted pursuant to lawful impoundment of the vehicle. Benavides v.

State, 600 S.W.2d 809, 810 (Tex. Crim. App. 1980); accord St. Clair v. State, 338

S.W.3d 722, 724 (Tex. App.–Amarillo 2011, no pet.) (stating that police may conduct an

inventory search of a vehicle if impoundment is the only reasonable alternative to


       2
         A man claiming to be a friend of appellant approached the officers after appellant had been
arrested, but the friend also had outstanding warrants and was arrested.

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protect it). And, even if a search does not qualify as a search incident to arrest, it may

still qualify as an inventory search. Moskey v. State, 333 S.W.3d 696, 702 (Tex. App.–

Houston [1st Dist.] 2010, no pet.).

       Appellant argues that any alleged inventory search was a pretext because the

police department impoundment procedures did not authorize an impoundment in this

situation, there was no danger to the vehicle or its contents because the officers had the

key, the officers were originally only going to leave a citation and there were other

alternatives to impoundment.      However, officers are not required to independently

investigate possible alternatives to impoundment absent some objectively demonstrable

evidence that alternatives existed. St. Clair v. State, supra; Garza v. State, 137 S.W.3d

878, 882 (Tex. App.–Houston [1st Dist.] 2004, pet. ref’d). So, the contention that they

could have solicited approval from others to leave the car there is of no moment.

       So, given the totality of circumstances appearing of record, we conclude that the

trial court could have legitimately ruled that the search conducted was a permissible

inventory search.

       Accordingly, the judgment is affirmed.



                                                Per Curiam

Do not publish.




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