Opinion filed April 1, 2010




                                                In The


   Eleventh Court of Appeals
                                             __________

                                       No. 11-08-00249-CR
                                           __________

                         DONELL EZELL MCBRIDE, Appellant

                                                   V.

                                 STATE OF TEXAS, Appellee


                              On Appeal from the 42nd District Court
                                      Taylor County, Texas
                                  Trial Court Cause No. 23049A


                              MEMORANDUM OPINION
        Donell Ezell McBride appeals his conviction of the offense of possession of cocaine with the
intent to deliver, following his plea of guilty to the trial court. He entered the plea after his motion to
suppress evidence was overruled. The trial court found him guilty and assessed his punishment at
twenty years in the Texas Department of Criminal Justice, Institutional Division. McBride contends
in two points on appeal that his rights under the Fourth Amendment of the United States Constitution
and his rights under Article I, section 9 of the Texas Constitution against unreasonable searches and
seizures were violated and that his right to effective assistance of counsel was denied when his
attorney’s failure to inform him of a plea bargain offer resulted in him receiving a higher sentence
than that proposed in the offer. We reverse the judgment and remand to the trial court for further
proceedings consistent with this opinion.
          McBride urges in Point One that his rights under the Fourth Amendment to the United States
Constitution and his rights under Article I, section 9 of the Texas Constitution against unreasonable
searches and seizures were violated. We interpret this point as an assertion that the trial court erred
by overruling his motion to suppress evidence of the search of his vehicle that occurred after his
arrest.
          We review a trial court’s ruling on a motion to suppress evidence for an abuse of discretion.
Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). We review the evidence in the light
most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact
supported by the record. Id. We will sustain the trial court’s decision if it is correct on any theory of
law applicable to the case. Id. McBride filed a motion to suppress in which he challenged the search
of his vehicle as being in violation of his rights under the United States and the Texas Constitutions.
At the hearing on the motion to suppress, Officer Jefferson testified that he stopped McBride because
his vehicle had an expired inspection sticker. He indicated that he decided to arrest McBride after
learning that his driver’s license was suspended. However, before arresting McBride, Officer
Jefferson allowed McBride to drive his vehicle to his residence, which was within a block, and park
it. After McBride parked his vehicle, Officer Jefferson arrested him, handcuffed him, and took him
to his patrol car. While searching McBride for weapons, Officer Jefferson discovered $2,500 in 5s,
10s, and 20s, neatly folded.
          Officer Jefferson indicated that he searched McBride’s vehicle incidental to his arrest. He
stated that during the search he found marihuana and rock cocaine in an ashtray in the center console.
McBride protested the search. Officer Jefferson related that he encountered the smell of burnt
marihuana in the interior of the vehicle. McBride’s vehicle was apparently locked prior to the
search.
          Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within
reaching distance of the passenger compartment at the time of the search or if it is reasonable to

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believe the vehicle contained evidence of the offense of arrest. Arizona v. Gant, ___ U.S. ___, 129
S. Ct. 1710, 1723, 173 L. Ed. 2d 485, 501 (2009). Because at the time of the search, McBride had
been handcuffed and taken to the police unit, he was not within reaching distance of the passenger
compartment, and there was no evidence that could support a reasonable belief that the vehicle
would contain evidence of the offense justifying the arrest – that McBride was driving while his
license was suspended. Consequently, police were without authority to search McBride’s vehicle
without a warrant as incident to his arrest for driving while his license was suspended.
       The State, in a brief written prior to the United States Supreme Court’s decision in Gant,
urges that we should uphold the trial court’s ruling, arguing that, as a search incident to McBride’s
arrest, it complied with the United States Supreme Court case of New York v. Belton, 453 U.S. 454
(1981). However, the Court in Gant held that Belton does not authorize a vehicle search incident to
a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the
vehicle. Gant, 129 S. Ct. at 1714. Because the search-incident-to-arrest exception to the Fourth
Amendment’s warrant requirement did not justify the search in this case, we hold that the trial court
abused its discretion by overruling McBride’s motion to suppress. Consequently, we sustain
McBride’s first point on appeal. In view of our determination of that point on appeal, we need not
determine McBride’s second point on appeal.
       We reverse the judgment and remand to the trial court for further proceedings consistent with
this opinion.


                                                                      PER CURIAM
April 1, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.1




       1
           John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
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