                                                                                                                                         ACCEPTED
                                                                                                                                     01-15-00130-CR
                                                                                                                          FIRST COURT OF APPEALS
                                                                                                                                  HOUSTON, TEXAS
                                                                                                                                6/22/2015 7:27:36 PM
                                                                                                                               CHRISTOPHER PRINE
                                                                                                                                              CLERK

                                                 NO. 01-15-00130-CR

                                            IN THE COURT OF APPEALS                                   FILED IN
                                                                                               1st COURT OF APPEALS
                                                                                                   HOUSTON, TEXAS
                              FOR THE FIRST SUPREME JUDICIAL                           DISTRICT6/22/2015 7:27:36 PM
                                                                                               CHRISTOPHER A. PRINE
                                                                                                       Clerk
                                                    HOUSTON, TEXAS
....................................................................................................................................

MICHAEL W. PETERS                                            *         APPELLANT

VS.                                                          *

THE STATE OF TEXAS                                           *         APPELLEE
....................................................................................................................................

                                            TRIAL COURT NO. 1413407

                                         IN THE 176TH DISTRICT COURT

                                            OF HARRIS COUNTY, TEXAS
 .................................................................................................................................

                                                BRIEF FOR APPELLANT
  ...............................................................................................................................

                                                                       Charles Hinton
                                                                       P.O. Box 53719
                                                                       Houston, Texas 77052-3719
                                                                       832-603-1330
                                                                       chashinton@sbcglobal.net
                                                                       SBOT #09709800
                                                                       Attorney for Appellant
                              TABLE OF CONTENTS

                                                            Page:

Identity of Parties and Counsel                             i

List of Authorities                                         ii

Statement of the Case                                       1

Point for Review Number One                                 1

      THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION
      TO SUPPRESS EVIDENCE (RR 2:61).

Statement of the Facts                                      1

Summary of the Argument                                     4

Argument                                                    5

Prayer for Relief                                           15

Certificate of Service                                      15

Certificate of Compliance                                   16
                       IDENTITY OF PARTIES AND COUNSEL

Judge:                             Honorable Stacey W. Bond

Complainant:                       The State of Texas

Trial Prosecutors:                 Ms. Courtney Chester
                                   TBA #24077335

                                   Ms. Mia Magness
                                   TBA #00787363
                                   1201 Franklin
                                   Houston, Texas 77002
                                   713-755-6908

Defense Counsel:                   Mr. William B. Portis, Jr.
                                   TBA #16161000
                                   8561 Long Point Road, Suite 205
                                   Houston, Texas 77055
                                   713-224-6473

Appellant:                         Mr. Michael W. Peters

Appellant's Counsel:               Mr. Charles Hinton
                                   TBA #09709800
                                   P.O. Box 3719
                                   Houston, Texas 77052-3719
                                   832-603-1330

Appellee's Counsel:                Ms. Devon Anderson
                                   Harris County District Attorney
                                   1201 Franklin
                                   Houston, Texas 77002
                                   713-755-5800


                                      i
                              LIST OF AUTHORITIES

Cases:                                                        Page:

Colorado v. Bertine,
479 U.S. 367 (1987)                                           8

Delgado v. State,
718 S.W.2d 718 (Tex. Crim. App. 1986, reh. den.)              7

Florida v. Wells,
495 U.S. 1 (1990)                                             4, 8

Garza v. State,
137 S.W.3d 878 (Tex. App. -- Houston [1st Dist.] 2004)        4, 8

Moskey v. State,
333 S.W.3d 696 (Tex. App. -- Houston [1st Dist.] 2010)        9, 14

Rothenberg v. State,
176 S.W.3d 53 (Tex. App. -- Houston [1st dist.] 2004, PDRR)   8

Shepherd v. State,
273 S.W.3d 681 (Tex. Crim. App. 2008)                         5

South Dakota v. Opperman,
428 U.S. 364 (1976)                                           7

Constitutions:

U.S. CONST. amendment IV                                      5

TEX. CONST. art. I, sec. 9                                    5



                                        ii
TO THE HONORABLE JUSTICES OF THE COURT OF APPEAL

FOR THE FIRST SUPREME JUDICIAL DISTRICT:

      Comes now, appellant Michael W. Peters, and submits this brief pursuant

to TEX. R. APP. PROC. 38.1.

                              STATEMENT OF THE CASE

      On January 8, 2015, the trial court denied appellant's motion to suppress

evidence but also stated that appellant had permission to appeal her decision (RR

2: 61). On January 9, 2015, appellant pled guilty, without waiving his right to

appeal the motion to suppress evidence ruling, to the first degree felony offense

of possession with intent to deliver methamphetamine between 4 and 200 grams

(RR 2: 63). The trial court found that there was sufficient evidence to find him

guilty (RR 2: 65). On February 9, 2015, the trial court found appellant guilty and

sentenced him to 10 years in prison. (CR I: 82). Appellant gave notice of appeal as

to the trial court's denial of his motion to suppress (CR I: 84).

                         POINT FOR REVIEW NUMBER ONE

      THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
      SUPPRESS EVIDENCE (RR 2: 61).

                              STATEMENT OF THE FACTS

                                           1
                                  State's Witnesses

      Harris County Deputy Constable Kyle Cornelius conducted a traffic stop on a

vehicle, with an expired registration, driven by its sole occupant, appellant

Michael Peters, at 1942 hours on January 5, 2014 at North Main and Wallisville.

Appellant pulled over in the parking lot of a grocery store (RR 2: 2, 7, 9, 11).

      Deputy Cornelius identified State's Exhibit #4 as an accurate video and

audio recording of the traffic stop. The exhibit was admitted into evidence and

published for the trial court. While the video played, Deputy Cornelius gave a

running commentary on it in response to the prosecutor's questions (RR 2: 14).

       Since appellant was on parole, Deputy Cornelius had a safety concern and

so he had appellant step out of the vehicle in order to do a Terry search for

weapons. When informed by Dispatch that appellant had 6 class C traffic warrants

pending, Deputy Cornelius arrested appellant (RR 2: 15-16). At that point, Deputy

Cornelius followed Precinct 3's policy which was to tow the vehicle and conduct

an inventory of the vehicle for any property (RR 2: 16-17).

      Precinct 3's policy concerning the inventory directed that the deputy list

any pertinent or valuable property plus any vehicle damage on the tow slip which



                                           2
also contains the vehicle information, case number and appellant's name. The

policy directed Deputy Cornelius to open any container that was not locked and

Deputy Cornelius proceeded accordingly (RR 2: 18-19). As he inventoried the

vehicle, Deputy Cornelius opened the center console and found a towel at the

top. Inside of the towel, he felt what he believed to be a methamphetamine pipe.

Inside the towel, he found a glass methamphetamine pipe containing what he

believed to be burnt methamphetamine residue (RR 2: 20).

      At this point, Deputy Cornelius, besides conducting the inventory, also

began a probable cause search for any more illegal substances (RR 2: 20-21).

Deputy Cornelius located a small flat safe. He opened it and found 5 clear plastic

baggies containing a crystal like substance that field tested positive for

methamphetamine (RR 2: 21-22).

      Deputy Cornelius filled out the standard Precinct 3 tow slip and inventory

form (RR 2: 26-27). Appellant did not give Deputy Cornelius permission to either

impound his vehicle or to search it (RR 2: 28-29). Deputy Cornelius testified that it

was correct that, according to his training, he would not have a right to conduct

an inventory search of an impounded vehicle if he couldn't see any contraband in

plain view in the vehicle (RR 2: 29-30).

                                           3
      Appellant's vehicle was drivable and it didn't create any kind of hazardous

condition. It was not legally parked and Deputy Cornelius refused appellant's

request to call a friend to move the vehicle. Deputy Cornelius didn't see any

contraband in the vehicle until he started the inventory (RR 2:30-31). Deputy

Cornelius had to pick up and look under the towel before he saw the pipe. The

pipe was inside the towel (RR 2: 33).

      State's exhibit 5 (RR 3: 7), a copy of the Precinct 3 towing and inventory

policy, was identified by Deputy Cornelius and admitted into evidence (RR 2: 51-

52). Deputy Cornelius testified that he complied with the policy (RR 2: 53).

                         SUMMARY OF THE ARGUMENT

      Deputy Cornelius used the inventory "as a ruse for general rummaging in

order to discover incriminating evidence." Florida v. Wells, 495 U.S. 1, 4 (1990).

Deputy Cornelius' inventory of appellant's vehicle "was clearly a pretext for an

investigatory motive." Garza v. State, 137 S.W.3d 878, 883 (Tex. App. -- Houston

[1st Dist.] 2004.

      The trial court erred in denying appellant's motion to suppress the illegally

seized methamphetamine in both the vehicle's center console and in the small

flat safe.

                                         4
                                     ARGUMENT

      There was no search warrant in this cause (RR 3: 5).

      Appellant's motion to suppress evidence claimed that the search of his

vehicle violated both his Fourth Amendment rights under the U.S. Constitution

and his rights under the Texas Constitution's Article I, Sec. 9. (CR I: 21).

      Appellant claims that Deputy Cornelius did not comply with Precinct 3's

police departmental vehicle inventory policy and that the trial court erred in

denying appellant's motion to suppress evidence of the methamphetamine that

was seized as a result of the illegal inventory search.

      An abuse of discretion is the standard of review utilized in the review of a

trial court's denial of a motion to suppress and the facts are viewed in the light

most favorable to the trial court's decision. Almost total deference is given to the

trial court's express or implied determination of historical facts while the

application of the law of search and seizure to those facts is reviewed de novo.

Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008).

      Deputy Cornelius conducted a traffic stop on appellant's vehicle due to an

expired vehicle registration (RR 2: 11). He arrested appellant after being advised

by dispatch that appellant had 6 traffic warrants . Deputy Cornelius testified that

                                           5
Precinct 3's policy in such a situation was "To tow the vehicle and make an

inventory of the vehicle for any valuable property (RR 2: 15-16)."

      Pursuant to policy the deputy called a wrecker (RR 2: 17) and began the

inventory of appellant's vehicle (RR 2: 19). In performing the inventory, Deputy

Cornelius used a Precinct 3 carbon copy to list pertinent or valuable property. The

inventory is performed to protect the appellant, his property and also to protect

Deputy Cornelius (RR 2: 18).

      During the inventory, Deputy Cornelius found what he believed to be a

methamphetamine pipe with some fresh residue wrapped in a towel that he

found in the vehicle's center console (RR 2: 19-20). Upon finding the pipe, Deputy

Cornelius stated that he then began a dual purpose inventory and "probable

cause search" of the vehicle. The inventory was for valuable property and the

"probable cause search" was "for anymore illegal substances" (RR 2: 20-21).

      During the inventory and search, Deputy Cornelius found a small flat safe

and opened it. Inside, he found 5 clear plastic baggies containing a crystal like

substance which tested positive for methamphetamine (RR 2: 21). Inside the safe,

the deputy also found a digital scale, Xanax bars, assorted pills, stamps, a green

leafy substance and a rolled cigarette that smelled of marijuana (RR 2: 22).

                                         6
       In denying appellant's motion to suppress evidence of the controlled

substances seized by the deputy, the trial court stated, in pertinent part, that:

      (RR 2: 61):

      " .... I have also read those cases provided by the State of Texas, Delgado

versus State, and that cite is 718 S.W.2d 718,, and then Rothenberg versus State,

that's 176 S.W.3d at 53, and based on the testimony of the officer and my review

of the case law, I will deny your motion to suppress .... "

      Concerning an inventory of a vehicle's contents, the Court of Criminal

Appeals in Delgado v. State, 718 S.W.2d 718, 721 ( Tex. Crim. App. 1986, reh.

den.), cited the United States Supreme Court case of South Dakota v. Opperman,

428 U.S. 364 (1976) for the holding that inventories conducted pursuant to

standard police procedures are reasonable. The Court of Criminal Appeals further

clarified the vehicle inventory issue by specifically stating that "One of the

instances in which an automobile may be validly impounded and inventoried is

where the driver is removed from his automobile and placed under custodial

arrest and no other alternatives are available other than impoundment to insure

the protection of the vehicle." Id. at 721.

      Also cited and relied upon by the trial court as a basis for her decision to

                                          7
deny appellant's motion to suppress the evidence of the methamphetamine was

Rothenberg v. State, 176 S.W.3d 53 (Tex. App. -- Houston [1st Dist.]. 2004, PDRR).

      In Rothenberg, id. at 56, this First Court of Appeals cited Colorado v.

Bertine, 479 U.S. 367, 371 (1987) for the proposition that "The inventory has long

been recognized as falling outside the Fourth Amendment's warrant

requirement."       This Court also stated that "the Fourth Amendment to the

United States Constitution allows police to open closed -- even locked --

containers as part of the inventory of an automobile, as long as they do so in

accordance with standardized police procedures and as long as the police do not

act in bad faith or for the sole purpose of investigation. Id. at 57. Florida v. Wells,

495 U.S. 1, 4 (1990).

      In Garza v. State, 137 S.w.3d 878, 885 (Tex. App. -- Houston [1st Dist.]

2004). this Court stated:

      "The Supreme Court has held that, under the Fourth Amendment, a

      peace officer may open a closed container as part of an inventory of

      an automobile as long as the inventory is conducted in good faith

      pursuant to reasonable standardized police procedures. Bertine, 479

      U.S. at 374, 107 S.Ct. at 742-43. We find this Fourth Amendment

                                          8
      authority to be reasonable, persuasive, and in harmony with Texas'

      protection against unreasonable searches and seizures. Accordingly,

      we further hold that, under Article I, section 9, this standard applies

      in the context of inventories."

      Appellant suggests that this Court's opinion in Moskey v. State, 333 S.W.3d

696 (Tex. App. -- Houston [1st Dist.] 2010) is not only one that is factually similar

to appellant's case but also aptly and thoroughly sets forth the law that is

applicable to a proper appellate analysis of appellant's complaint.

      Appellant's complaint is that the trial court erred in denying his motion to

suppress evidence (RR 2: 61). The State's evidence failed to satisfy its burden to

demonstrate that Deputy Cornelius conducted the inventory search of appellant's

vehicle in accordance with Precinct 3's standardized police procedures. The trial

could not have reasonably determined that Deputy Cornelius conducted a valid

inventory search and, therefore, the trial court abused its discretion in denying

appellant's motion to suppress evidence.

      Based on the law as set forth in Moskey, id., appellant concedes that the

traffic stop of appellant's vehicle and his arrest were lawful. Appellant also admits

that the impoundment of his vehicle was proper and that the deputy had a legal

                                          9
right to perform an inventory of appellant's vehicle.

      However, appellant contends that the State's evidence failed to

demonstrate that Deputy Cornelius conducted the inventory search according to

Precinct 3 police departmental policy. Id., at 700.

      State's Exhibit #5 (RR 3: 7), the Precinct 3 inventory policy, was offered and

admitted into evidence (RR 2: 51). Deputy Cornelius' inventory form is reflected in

the appellate record as Defense No. CX-1 (RR 3: 11).

      The trial court noted for the record the following:

      (RR 2: 62):

      " THE COURT: We're on the record in Cause No. 1413407, the State of Texas

versus Michael Peters. Before we enter into the plea bargain that was part of the

motion to suppress, the dispositive motion to suppress, we wanted to get on the

record at the request of Mr. Portis that the State will secure from the officer the

inventory slip that was submitted to his department as a result of the

impoundment of Mr. Peters' car.

      MS CHESTER: Yes, your Honor.

      THE COURT: That will be included in the record.

      MS. CHESTER: Yes, your Honor.

                                         10
      MR. PORTIS: Is that your stipulation? That was my stipulation.

      MS. CHESTER: I will ask him and attempt to get it to the best of my ability.

      We will make sure to look everywhere to try to find it.

      THE COURT: All right. He seems confident that he filed it with his report.

      MR. PORTIS: I think he told me that two or three times.

      MS. CHESTER: Shouldn't be a problem.

      MR.. PORTIS: Thank you so much."

      Deputy Cornelius testified that he had a Precinct 3 carbon copy tow slip

form on which he listed any pertinent or valuable property that he found during

his inventory of appellant's vehicle (RR 2: 18). As he was inventorying the vehicle,

Deputy Cornelius opened the center console and found what he believed to be a

methamphetamine pipe containing methamphetamine residue inside of a towel

(RR 2: 20).

      Continuing on with his search, the deputy opened a small flat safe in which

he found "five clear plastic bags containing a crystal like substance which later

field tested positive for methamphetamine", "several new unused small clear

plastic baggies with pictures of cats on 'em", "a digital scale", "baggies with three

Xanax bars", "five Soma type pills", "six unknown gray and pink pills", "four round

                                         11
white pills", "three small round pills", "a package of some small stamps",

"seventeen brown pills with two blue pills contained within the same bag', "a

baggie containing a green leafy substance that smelled strongly of fresh

marijuana" and "a baggie that contained a rolled cigarette that smelled strongly

of burnt marijuana (RR 2: 21-22)."

      Deputy Cornelius testified that, while he did fill out a standard Precinct 3

tow slip form on which he listed the items found during his inventory of

appellant's vehicle, he did not bring the tow slip form to court (RR 2: 26-27, 32).

Deputy Cornelius said that he couldn't recall what valuables were in the

appellant's vehicle without looking at his tow slip. However, he did recall some

speakers in the back of the vehicle (RR 2: 37).

      The Precinct 3 inventory policy contained in State's Exhibit #5 (RR 3: 7)

states the following in regard to a prisoner's property and vehicle:

      "3. Prisoner's Property

      Each deputy, upon assuming custody of a prisoner, has the primary

      responsibility to protect and safeguard all property which the prisoner

      has in his possession at the time of arrest:

      a. Deputies who arrest or transport or otherwise take custody of

                                         12
      a prisoner shall inventory the prisoner's property and maintain detailed

      notes as to the type, amount, and disposition of the property. ....

      4. Prisoner's Vehicles

      When necessary will be towed and stored by an authorized wrecker

      service.

      ....

      All prisoners vehicles towed by this Department will be inventoried

      including the trunk and glove compartment if accessible. ...."

      The inventory form listed in the appellate record as "CX-1" (RR 3: 11) clearly

shows that Deputy Cornelius did not conduct his inventory of appellant's vehicle

pursuant to established Precinct 3 police department guidelines. The "Inventory

Of Vehicle Contents" reflects the following:

      "Cell Phone . Center Console

      Misc Tools - Back Seat / Bag Of Change - Back Seat

      Misc Clothes - Cargo Area"

      The deputy did not maintain detailed notes of the type and amount of the

property in appellant's vehicle. While there is mention of a cell phone there is no

description of the cell phone as to type. His inventory contains no mention at all

                                        13
of a towel with a methamphetamine pipe found in the center console of the

vehicle. His inventory does not even mention the flat safe in which he testified

that he found 5 baggies of methamphetamine, digital scales, assorted pills,

stamps and marijuana (RR 2: 21-22). Nor does his inventory list the contents of

the flat safe. His inventory mentions miscellaneous clothes and miscellaneous

tools without stating their type or number which is apparently required by

Precinct 3's inventory policy as set forth in State's Exhibit # 5 (RR 3: 11). His

inventory does mention a bag of change but not the amount of money. There is

no mention of the two speakers that Deputy Cornelius testified that he saw in the

back of appellant's' vehicle (RR 2: 37).

      As this Court stated in Moskey, supra, at 700, "The state bears the burden

of establishing that the police conducted a lawful inventory search. ... The State

satisfies this burden by demonstrating that (1) an inventory policy exists and (2)

the officers followed the policy." State's Exhibit #5 (RR 3: 7) showed that an

inventory policy did exist. The inventory form listed as "CX-1" (RR 3: 11) clearly

demonstrates that Deputy Cornelius did not follow the policy.

      Since Deputy Cornelius did not follow Precinct 3's established police



                                           14
department policy for inventory of the vehicle's contents, his inventory search

amounted to a "ruse for a general rummaging in order to discover incriminating

evidence." Moskey, supra, at 700. Therefore, the search for and seizure of the

methamphetamine was illegal.

          The trial court erred in denying appellant's motion to suppress (CR I: 24; RR

3: 61).

                                    PRAYER FOR RELIEF

          Appellant prays that this Court reverse the judgment of the court below

and remand the case for further proceedings. TEX. R. APP. PROC. 43.2(d).

                                                  Respectfully submitted,

                                                  /s/Charles Hinton_____
                                                  Charles Hinton
                                                  P.O. Box 53719
                                                  Houston, Texas 77052-3719
                                                  832-603-1330
                                                  chashinton@sbcglobal.net
                                                  SBOT #09709800
                                                  Attorney for Appellant

                                 CERTIFICATE OF SERVICE

          I certify that a copy of appellant's brief has been served by e-filing upon the



                                             15
appellate attorney for the State, Mr. Alan Curry, Chief Prosecutor, Appellate

Division, Harris County District Attorney's Office, 6th Floor, 1201 Franklin,

Houston, Texas 77002 on June 22, 2015.



                                           /s/Charles Hinton__________
                                           Charles Hinton

                        CERTIFICATE OF COMPLIANCE

     Appellant's counsel certifies that the word count of this document is 3,347.



                                           /s/Charles Hinton__________
                                           Charles Hinton




                                      16
