             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-18-00379-CR
      ___________________________

   MARC ANTHONY RAYOS, Appellant

                     V.

           THE STATE OF TEXAS


   On Appeal from the 371st District Court
          Tarrant County, Texas
        Trial Court No. 1524482D


  Before Sudderth, C.J.; Gabriel and Kerr, JJ.
Memorandum Opinion by Chief Justice Sudderth
                MEMORANDUM OPINION ON REHEARING

      Appellant Mark Anthony Rayos filed a motion for rehearing of our September

5 memorandum opinion and judgment. We deny the motion but withdraw our prior

opinion and substitute the following in its place. With the exception of two footnotes

added to address Appellant’s argument for rehearing and a typographical correction,

our opinion remains otherwise unchanged.

      In two issues, Appellant appeals his conviction for possession of a controlled

substance with intent to deliver. See Tex. Health & Safety Code Ann. § 481.112. We

affirm.

                                    Background

      Appellant appeals the trial court’s denial of his motion to suppress evidence of

drugs discovered when officers searched his vehicle after arresting him for public

intoxication. The facts, as testified to by Euless Police Department Officer Shawn

Buschee and Officer Patrick Cunningham and as depicted in the recording of a body

camera worn by Officer Buschee’s partner, Officer Mitchell, are undisputed.

I. The arrest

      In the early hours of November 11, 2017, a concerned citizen called 911 to

report a vehicle parked at a RaceTrac gas station with two flat tires and body damage

and an apparently impaired driver possibly in need of medical attention. When

Officer Buschee and Officer Mitchell arrived, they observed Appellant standing

outside of a pickup truck with body damage and two flat tires on the passenger side.

                                          2
Officer Buschee testified that he immediately noticed that Appellant’s speech was

slurred, he was “somewhat unsteady on his feet,” and his breath smelled of alcohol.

      Appellant admitted to Officer Mitchell that he had had about ten drinks that

evening. After administering a horizontal gaze nystagmus (HGN) test and observing

all six possible clues of intoxication, Officer Buschee placed Appellant under arrest

for public intoxication. At the time of arrest, Office Buschee explained to Appellant

that he would probably spend about six hours in jail before being released later that

morning.

II. The vehicle search

      On the video, Appellant told Officer Mitchell that he was waiting for his wife1

to pick him up. When the officers asked if he needed anything out of the truck—like

his cell phone—Appellant responded, “No. My wife has it.” When Officer Mitchell

asked how Appellant called his wife to come pick him up at the RaceTrac if his wife

had the phone, Appellant responded that he had called his wife before he left his

friend’s house earlier and said he was on his way home but acknowledged that she

could not know that he had damaged the truck and was now at the RaceTrac. After

they frisked Appellant and before they moved him to the patrol car, Officer Buschee

pointed out that the truck was damaged, to which Appellant responded, “Yeah, it’s


      1
        Appellant initially referred to a “girlfriend” but later referred to his “wife.”
From the context, it appears he was referring to one person. For simplicity, we will
refer to her as his wife.


                                           3
f***** up,” and admitted that he did not have two spare tires to change both flats.

When Officer Buschee asked, “Are the keys in it, is it locked up?”           Appellant

answered, “No.”     When Officer Buschee asked where the keys were, Appellant

responded that he did not know and did not have them on him. Officer Buschee

directed Officer Mitchell to look in the truck for the keys, and upon opening the truck

door, Officer Mitchell smelled an odor of marijuana. He then found a scale, and

inside the truck console, he found a baggie of cocaine, a jar full of marijuana, and

bundles of cash.

      At the hearing, Officer Buschee testified that he directed Officer Mitchell to get

the keys because the vehicle was going to be impounded and inventoried pursuant to

EPD policy allowing the impoundment of inoperable vehicles or if the driver is

placed under arrest. The State introduced evidence of EPD policy allowing police to

impound a vehicle when a driver is arrested or if “a vehicle is rendered inoperable due

to an accident.”

III. The arguments and ruling

      At the hearing, Appellant argued that the officers did not have probable cause

to search the vehicle and that the EPD impoundment policy was improper because it

allowed the officers unlimited discretion to search and inventory a vehicle without

probable cause. The trial court disagreed, denied the motion to suppress, and found

that “the vehicle was subject to discretionary impoundment based on the policies that

have been introduced.” This appeal followed.

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                                      Discussion

      Appellant brings two issues on appeal.2 In his first, he argues that the EPD

impoundment and inventory policy cannot justify Officer Mitchell’s search of the

truck because the policy allows the officers “unlimited discretion.” In his second, he

challenges the inventory of the truck on the basis that it was the fruit of an unlawful

seizure of the truck and on the basis that the officers allegedly did not follow EPD

inventory-search protocol.

I. Standard of Review

      We apply a bifurcated standard of review to a trial court’s ruling on a motion to

suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer almost totally to

a trial court’s rulings on questions of historical fact and application-of-law-to-fact

questions that turn on evaluating credibility and demeanor, but we review de novo

application-of-law-to-fact questions that do not turn on credibility and demeanor.

Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.

2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      Stated another way, when reviewing the trial court’s ruling on a suppression

motion, we must view the evidence in the light most favorable to the ruling. Wiede,

      2
         Appellant organized his argument in two issues but listed five issues in his
“Issues Presented.” Because we have determined that his list of five issues is merely
listing subissues of his two overall issues, we have organized this opinion to follow the
organization of the brief.


                                           5
214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When

the record is silent on the reasons for the trial court’s ruling, or when there are no

explicit fact findings and neither party timely requested findings and conclusions from

the trial court, we imply the necessary fact findings that would support the trial court’s

ruling if the evidence, viewed in the light most favorable to the trial court’s ruling,

supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App.

2008); see Wiede, 214 S.W.3d at 25. We then review the trial court’s legal ruling

de novo unless the implied fact findings supported by the record are also dispositive

of the legal ruling. Kelly, 204 S.W.3d at 819.   Even if the trial court gave the wrong

reason for its ruling, we must uphold the ruling if it is both supported by the record

and correct under any applicable legal theory. State v. Stevens, 235 S.W.3d 736, 740

(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003).

II. The impoundment

         To be lawful, a decision to impound a vehicle must be reasonable under the

Fourth Amendment. Roberts v. State, 444 S.W.3d 770, 775 (Tex. App.—Fort Worth

2014, pet. ref’d). The State bears the burden to prove a lawful impoundment. Id.

Whether an impoundment is reasonable is a question of law that we review de novo,

measuring reasonableness by examining the totality of the circumstances. Ohio v.

Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421 (1996); see also Kothe v. State, 152 S.W.3d

54, 62–63 (Tex. Crim. App. 2004). In the process we must balance the public interest

                                            6
and the individual’s right to be free from arbitrary detentions and intrusions. Kothe,

152 S.W.3d at 63. Nevertheless, we have previously noted the significantly lower

degree of privacy one should expect when it comes to his vehicle compared to his

home or office and that vehicles are subject to pervasive and continuing governmental

regulation and controls. Roberts, 444 S.W.3d at 774 (citing South Dakota v. Opperman,

428 U.S. 364, 367–68, 96 S. Ct. 3092, 3096 (1976)).

       The court of criminal appeals has observed that there are many circumstances

under which law enforcement may reasonably impound a vehicle, including (1) the

driver’s arrest when the arrest is reasonably connected to the vehicle; (2) statutory

authorization; (3) vehicle abandonment or a vehicle that is hazardous and presents a

danger to the public; (4) a reasonable belief that the vehicle is stolen; (5) vehicle

removal from an accident scene; and (6) parking violations. Id. at 776 (citing Benavides

v. State, 600 S.W.2d 809, 811 (Tex. Crim. App. [Panel Op.] 1980); and Opperman, 428

U.S. at 368–69, 96 S. Ct. at 3097) (explaining that in the interest of public safety and

as part of a community caretaking function, vehicles are frequently taken into police

custody for, among other things, vehicle accidents and other caretaking and traffic-

control activities).

       Appellant argues that the EPD impoundment policy cannot justify the

impoundment of Appellant’s truck because it leaves the decision to impound a vehicle

to the “unfettered discretion” of police officers. This argument has been previously

rejected, and we do not find Appellant’s attempt to resurrect it convincing. See

                                           7
Colorado v. Bertine, 479 U.S. 367, 375, 107 S. Ct. 738, 743 (1987) (rejecting argument

that inventory search of van was unconstitutional “because departmental regulations

gave the police discretion to choose between impounding the van and parking and

locking it in a public parking place”). As the United States Supreme Court explained

in Bertine, “Nothing . . . prohibits the exercise of police discretion so long as that

discretion is exercised according to standard criteria and on the basis of something

other than suspicion of evidence of criminal activity.” Id., 107 S. Ct. at 743.3 In that

case, the court declined to find a violation of the Fourth Amendment when “[t]here

was no showing that the police chose to impound [the defendant]’s van in order to

investigate suspected criminal activity.” Id. at 376, 107 S. Ct. at 743.4



       3
         In his motion for rehearing, Appellant argues that we have misconstrued
Bertine and his argument regarding the EPD impoundment policy, and that the EPD
policy is “deficient because it does not contain certain criteria relating to the feas[i]bility
and appropriateness of leaving the vehicle rather than impounding it.” But Appellant’s
interpretation of Bertine is wrong. The Supreme Court noted that the police policy at
issue in Bertine allowed police officers the discretion to impound a vehicle or park and
lock it in a public place, but the Supreme Court did not hold that police impoundment
policies must include such a provision specifically requiring officers to evaluate the
feasibility of parking the vehicle in a public place. Id. And we note that nothing in
the EPD policy restricts the officer’s discretion to consider the feasibility and
appropriateness of leaving a vehicle.

       Appellant also relies heavily on United States v. Duguay, 93 F.3d 346 (7th Cir.
       4

1996), to support his argument, but it is easily distinguishable from the case at hand.
In Duguay, there was no written police policy or “well-honed department routine”
regarding impoundment in effect at the time of the arrest, impoundment, and
inventory search. Id. at 351. And the two arresting officers’ explanations for
impounding the defendant’s car conflicted. Id. at 352.


                                              8
      In this case, the State provided evidence of EPD’s written policy allowing

officers to impound vehicles if the driver has been placed under arrest or if the

driver’s vehicle is rendered inoperable due to an accident. Officer Buschee testified

that he impounded the truck because it was inoperable and Appellant was under

arrest, and there is no evidence that Officer Buschee or Officer Mitchell acted in bad

faith or used the policy as an excuse to search for additional evidence of a crime. See

id. There is no dispute that Appellant’s truck was inoperable—Appellant admitted as

much at the scene. The trial court could have found that the officers were entitled to

disbelieve Appellant’s statement that his wife was on the way and therefore

determined that nobody was en route to repair or retrieve the truck. See Uballe v. State,

No. 07-13-00127-CR, 2014 WL 1829849, at *1–2 (Tex. App.—Amarillo May 6, 2014,

no pet.) (mem. op., not designated for publication) (holding that impoundment was

reasonable when appellant was arrested, no other driver was present to take

possession of the vehicle, and appellant did not argue that there were alternatives to

impounding the vehicle). Appellant asks us to conclude that the officers could have

left the truck in the RaceTrac parking lot, but that is not the standard to be applied.

We are required to view the evidence in the light most favorable to the trial court’s

implied factual findings, and here the trial court could have reasonably concluded that

the RaceTrac was not a safe place to leave the unlocked5 and damaged truck.6 See also


      5
       In this respect, Appellant’s argument as he reurges it in his motion for
rehearing again misses the mark. Appellant insists that the EPD policy is deficient

                                           9
Bertine, 479 U.S. at 374, 107 S. Ct. at 742 (“The reasonableness of any particular

governmental activity does not necessarily or invariably turn on the existence of

alternative ‘less intrusive’ means.”) (quoting Illinois v. Lafayette, 462 U.S. 640, 647, 103

S. Ct. 2605, 2610 (1983)).

       We therefore overrule Appellant’s arguments challenging the impoundment of

his vehicle.

III. The inventory search

       Appellant’s challenge of the search of his pickup truck is three-fold: first, he

argues that the inventory search was unlawful because the impoundment was




because it does not require police to evaluate the feasibility and appropriateness of
leaving the vehicle, relying on Bertine. Not only does he misinterpret Bertine, but if the
EPD policy had a provision similar to that at issue in Bertine (allowing officers to
choose between “parking and locking” a vehicle instead of impounding it), the result in
this case would be the same. See Bertine, 479 U.S. at 375, 107 S. Ct. at 743 (emphasis
added). Appellant’s truck was unlocked and his keys were not on his person. If the
officers had decided to leave the truck, it is reasonable to expect that they would have
opened the truck to find the keys in order to lock it, and in doing so, they would have
smelled the marijuana. Cf. id. at 372, 107 S. Ct. at 741 (recognizing deference
accorded to “police caretaking procedures designed to secure and protect vehicles and
their contents”).
       6
         We are not swayed by Appellant’s reliance on decisions from other
jurisdictions indicating that an impoundment is not reasonable when a defendant is
arrested for a low-level offense that risks a short amount of time spent in custody. Cf.
Roberts, 444 S.W.3d at 775–76 (upholding impoundment after initial arrest for expired
registration, lack of a valid driver’s license, and no proof of financial responsibility);
Josey v. State, 981 S.W.2d 831, 836 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d)
(discussing impoundment after arrest for minor traffic violations).


                                            10
unlawful. Because we have overruled his challenge to the impoundment of the

vehicle, we overrule this argument.

      In his second argument, Appellant challenges the search on the basis that the

inventory search was not conducted pursuant to EPD policy requiring a written

“vehicle inventory sheet.” But Appellant did not present this argument to the trial

court. To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion stating the specific grounds, if not

apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v.

State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). We therefore overrule this

portion of Appellant’s argument.

      Finally, Appellant argues that the search was not justified under the automobile

exception because the officers did not have probable cause to search the vehicle until

they had already opened the truck door.         But we have already held that the

impoundment of the vehicle was lawful, thereby permitting the officers to open the

truck door to begin an inventory search. See Moskey v. State, 333 S.W.3d 696, 700 (Tex.

App.—Houston [1st Dist.] 2010, no pet.) (“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.”) (citing Opperman, 428 U.S. at 375–

76, 96 S. Ct. at 3100; Benavides, 600 S.W.2d at 810; and Garza v. State, 137 S.W.3d 878,

882 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d)). Once Officer Mitchell opened

the truck door and smelled the odor of marijuana, he had probable cause to search the

                                          11
vehicle under the automobile exception. See Bogan v. State, No. 02-15-00354-CR, 2016

WL 1163725, at *2 (Tex. App.—Fort Worth Mar. 24, 2016, pet. ref’d) (mem. op., not

designated for publication) (“The smell of marijuana alone is sufficient to constitute

probable cause to search a defendant’s person, vehicle, or objects within the vehicle.”)

(citing Small v. State, 977 S.W.2d 771, 774–75 (Tex. App.—Fort Worth 1998, no pet.);

Luera v. State, 561 S.W.2d 497, 498 (Tex. Crim. App. 1978)). We therefore overrule

the remainder of Appellant’s second issue.

                                     Conclusion

      Having overruled Appellant’s arguments, we affirm the trial court’s judgment.



                                                      /s/ Bonnie Sudderth
                                                      Bonnie Sudderth
                                                      Chief Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: November 14, 2019




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