                                                                                           ACCEPTED
                                                                                        02-14-00493-cr
                                                              FILED       SECOND COURT OF APPEALS
                                                        COURT OF APPEALS        FORT WORTH, TEXAS
                                                                                 7/2/2015 12:59:52 PM
                                                     SECOND DISTRICT OF TEXAS          DEBRA SPISAK
                                                                                               CLERK
                                                           July 7, 2015
                           Cause No. 02-14-00493-CR
                                                         DEBRA SPISAK, CLERK

                                   IN                       FILED IN -
                                                   2nd COURT OF---APPEALS      ---
                        THE COURT OF APPEALS        FORT WORTH,       --- - -   TEXAS
                 FOR THE SECOND DISTRICT OF TEXAS             - - ---- SC ------
                                                   7/2/2015- 12:59:52
                                                            -      ID         - PM
                                                                               -
                                                       ---- VO ------
                           AT FORT WORTH                DEBRA        - - SPISAK
                                                                ----
                                                          ----Clerk
__________________________________________________________________


                             BRENCE J. WALKER
                                                                     RECEIVED IN
                                 Appellant                      2nd COURT OF APPEALS
                                                                 FORT WORTH, TEXAS
                                                                7/2/2015 12:59:52 PM
                                        v.
                                                                     DEBRA SPISAK
                                                                        Clerk
                           THE STATE OF TEXAS,
                                 Appellee

__________________________________________________________________

        On Appeal from Cause No. 1335687D in the 396th District Court of
    Tarrant County, Texas, Honorable Elizabeth Berry, Judge Presiding
__________________________________________________________________

                        Appellant’s Brief on Appeal
__________________________________________________________________

                           Stickels & Associates, P.C.
                                John W. Stickels
                            State Bar No. 19225300
                                Bethel T. Zehaie
                              SBOT No. 24073791
                                P. O. Box 121431
                            Arlington, Texas 76012
                            Phone: (817) 479 - 9282
                              Fax: (817) 622 – 8071
                             john@stickelslaw.com
                            Attorneys for Appellant
                                Brence J. Walker

ORAL ARGUMENT REQUESTED
                                      THE PARTIES

      Pursuant to Rule 38(a) of the Texas Rules of Appellate Procedure, the

following is a complete list of the names and addresses of all parties to the trial

court’s final judgment and counsel in the trial court, as well as appellate counsel, so

the members of the court may at once determine whether they are disqualified to

serve or should recuse themselves from participating in the decision of the case and

so the Clerk of the Court may properly notify the parties to the trial court’s final

judgment or their counsel, if any, of the judgment and all orders of the Court of

Appeals.

      Trial Judge:                      The Honorable Elizabeth Berry
                                        396th District Court – Visiting Judge
                                        Tarrant County, Texas
                                        401 Belknap
                                        Fort Worth, Texas 761966

      Appellant:                        Mr. Brence J. Walker
                                        TDC No. 01920746
                                        J. Middleton Transfer Facility
                                        13055 FM 3522
                                        Abilene, TX 79601




                                                                                      i
Appellant’s Trial
and Appellate Counsel:      Mr. John W. Stickels
                            SBOT No. 19225300
                            and
                            Bethel T. Zehaie
                            SBOT No. 24073791
                            P. O. Box 121431
                            770 N. Fielder Rd.
                            Fort Worth, Texas 76104-7666

Appellee:                   The State of Texas

Appellee’s Trial Counsel:   Mr. Jacob O. Mitchell
                            SBOT NO. 24060298
                                  and
                            Mr. William A. Vassar
                            SBOT NO. 24039224
                            Assistant District Attorneys
                            401 W. Belknap Street
                            Fort Worth, Texas 76196


Appellee’s Counsel
on Appeal:                  Tarrant County Criminal District Attorney
                            Appeals Division
                            401 Belknap
                            Fort Worth, Texas 76196




                                                                        ii
                                        TABLE OF CONTENTS

THE PARTIES........................................................................................................... i

TABLE OF CONTENTS......................................................................................... iii

TABLE OF AUTHORITIES ................................................................................... vi

PROCEDURAL HISTORY OF THE CASE ............................................................1

POINTS OF ERROR .................................................................................................3

POINT OF ERROR 1 ................................................................................................3

THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S
MOTION TO SUPPRESS EVIDENCE SEIZED FROM HIS PERSON IN
VIOLATION OF ARTICLE I, SECTIONS 9, 10, AND 19 OF THE TEXAS
CONSTITUTION. .....................................................................................................3

POINT OF ERROR 2 ................................................................................................3

THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S
MOTION TO SUPPRESS EVIDENCE SEIZED FROM HIS PERSON IN
VIOLATION OF ARTICLE 38.23 OF THE TEXAS CODE OF CRIMINAL
PROCEDURE............................................................................................................3

POINT OF ERROR 3 ................................................................................................3

THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S
MOTION TO SUPPRESS EVIDENCE SEIZED FROM HIS PERSON IN
VIOLATION OF ARTICLE 18.22 OF THE TEXAS CODE OF CRIMINAL
PROCEDURE............................................................................................................3




                                                                                                                     iii
POINT OF ERROR 4 ................................................................................................3

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
SUPPRESS EVIDENCE SEIZED FROM THE PERSON IN VIOLATION OF HIS
RIGHTS GUARANTEED UNDER THE FOURTH, FIFTH, AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION..................................................3

SUMMARY OF THE ARGUMENTS ......................................................................4

Appellant was wrongfully convicted of the felony offense of possession of a firearm
by a felon because the Court erred in overruling his Motion to Suppress the Search
of the Motor Vehicle. This error allowed the jury to consider evidence, the firearm,
which was obtained in violation of the 5th and 14th Amendments to the United States
Constitution and Article 1, Sections 9, 10, and 19 of the Texas Constitution. The jury
would not have convicted Appellant of this offense absent the Court’s error. .........4

STATEMENT OF THE FACTS ...............................................................................4

ARGUMENT AND AUTHORITIES........................................................................6

JURISDICTION.........................................................................................................6

ARGUMENT AND AUTHORITIES POINTS OF ERROR ....................................7

POINT OF ERROR 1 - RESTATED ........................................................................7

THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S
MOTION TO SUPPRESS EVIDENCE SEIZED FROM HIS PERSON IN
VIOLATION OF ARTICLE I, SECTIONS 9, 10, AND 19 OF THE TEXAS
CONSTITUTION. .....................................................................................................7

POINT OF ERROR 2 - RESTATED ........................................................................7

THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S
MOTION TO SUPPRESS EVIDENCE SEIZED FROM HIS PERSON IN
VIOLATION OF ARTICLE 38.23 OF THE TEXAS CODE OF CRIMINAL
PROCEDURE............................................................................................................7


                                                                                                                   iv
POINT OF ERROR 3 - RESTATED ........................................................................7

THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S
MOTION TO SUPPRESS EVIDENCE SEIZED FROM HIS PERSON IN
VIOLATION OF ARTICLE 18.22 OF THE TEXAS CODE OF CRIMINAL
PROCEDURE............................................................................................................7

POINT OF ERROR 4 - RESTATED ........................................................................7

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
SUPPRESS EVIDENCE SEIZED FROM THE PERSON IN VIOLATION OF HIS
RIGHTS GUARANTEED UNDER THE FOURTH, FIFTH, AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION..................................................7

A. MOTION TO SUPPRESS – STANDARD OF REVIEW: ..................................7

B. MOTION TO SUPPRESS – THE APPLICABLE LAW: ...................................8

C. ERROR IN ADMITTING EVIDENCE – HARM ANALYSIS: ......................12

PRAYER ..................................................................................................................13

CERTIFICATE OF SERVICE ................................................................................13

CERTIFICATE OF COMPLIANCE.......................................................................14




                                                                                                                         v
                                         TABLE OF AUTHORITIES

Cases

Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007).......................................8

Benavides v. State, 600 S.W.2d 809 (Tex. Crim. App. 1980) ...................................9

Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000);..................................7

Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987)..8, 9

Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976)

................................................................................................................................8, 9

Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005).......................................8

Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990)..............9

Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005)............................................8

Garza v. State, 137 S.W.3d 878 (Tex. App.–Houston [1st Dist.] 2004, pet. ref'd)..9,

11

Greer v. State, 436 S.W.3d 1 (Tex. App.–Waco 2014, no pet.)..............................10

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). .......................................7

Moskey v. State, 333 S.W.3d 696 (Tex. App.–Houston [1st Dist.] 2010, no pet.)....9

Rodriquez v. State, 641 S.W.2d 955 (Tex. App.–Amarillo 1982, no writ) ...............9

Torres v. State, 182 S.W.3d 899 (Tex. Crim. App. 2005).........................................8




                                                                                                                                 vi
Statutes

Tex. Code Crim Proc. Art. 38.23(2001) ......................................................... 3, 7, 12

Tex. Code Crim. Proc. Art. 18.01(2007). ..................................................................8

Tex. Code Crim. Proc. Art. 18.04(2007). ..................................................................8

Tex. Code. Crim. Proc. Art. 18.22(2001). ...................................................... 3, 7, 12

Rules

Rule 38(a)................................................................................................................... i

Tex. R. App. P. 25.2(a)(2). ........................................................................................6

Tex. R. App. P. 9(4)(i)(1)..........................................................................................14

Constitutional Provisions

Tex. Const. Art. I, §§ 9 ................................................................................... 4, 8, 12

Tex. Const. Art. I, §19 .................................................................................... 4, 8, 12

Tex. Xonst. Art. I, §10 .................................................................................... 4, 8, 12

U.S. Const. Amend. IV ................................................................................... 4, 8, 12

U.S. Const. Amend. XIV ................................................................................ 4, 8, 12




                                                                                                                           vii
                             NO. 02-14-00493-CR

BRENCE J. WALKER ,                 §     IN THE COURT OF APPEALS
Appellant                          §
                                   §
VS.                                §     SECOND DISTRICT
                                   §
THE STATE OF TEXAS,                §
Appellee                           §     FORT WORTH, TEXAS

                      APPELLANT’S BRIEF ON APPEAL

TO THE HONORABLE COURT OF APPEALS:

      Now comes Appellant, Brence J. Walker, with his Brief on Appeal from the

judgment of the 396th District Court of Tarrant County, Texas, in Cause No.

1335687D and shows as follows:

                  PROCEDURAL HISTORY OF THE CASE

Nature of the case:                Criminal charges alleging the felony offense
                                   of possession of a firearm by a felon. The
                                   indictment also contained a habitual offender
                                   notification. (CR. 5).

Deadly weapon allegation:          Yes – a firearm. (CR. 5).

Course of the Proceedings:         Tried before a jury and convicted for the
                                   offense of possession of a firearm by a felon.
                                   (CR. 33-38, 50; 3 RR 130).




                                                                               1
Disposition of the case:     The judge sentenced Appellant to
                             confinement for thirty-two (32) years in the
                             Institutional Division of the Texas
                             Department of Criminal Justice for the
                             offense of possession of a firearm by a felon.
                             (C.R. 64; 5 RR 61). Appellant has remained
                             in custody pending appeal.

Habitual offender finding:   True. (CR. 64; 6 RR 6).




                                                                         2
                POINTS OF ERROR

                 POINT OF ERROR 1

THE TRIAL COURT ERRED WHEN IT OVERRULED
APPELLANT’S MOTION TO SUPPRESS EVIDENCE SEIZED
FROM HIS PERSON IN VIOLATION OF ARTICLE I, SECTIONS
9, 10, AND 19 OF THE TEXAS CONSTITUTION.

                 POINT OF ERROR 2

THE TRIAL COURT ERRED WHEN IT OVERRULED
APPELLANT’S MOTION TO SUPPRESS EVIDENCE SEIZED
FROM HIS PERSON IN VIOLATION OF ARTICLE 38.23 OF THE
TEXAS CODE OF CRIMINAL PROCEDURE

                 POINT OF ERROR 3

THE TRIAL COURT ERRED WHEN IT OVERRULED
APPELLANT’S MOTION TO SUPPRESS EVIDENCE SEIZED
FROM HIS PERSON IN VIOLATION OF ARTICLE 18.22 OF THE
TEXAS CODE OF CRIMINAL PROCEDURE

                 POINT OF ERROR 4

THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION TO SUPPRESS EVIDENCE SEIZED FROM THE
PERSON IN VIOLATION OF HIS RIGHTS GUARANTEED
UNDER THE FOURTH, FIFTH, AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION.




                                                       3
                          SUMMARY OF THE ARGUMENTS

         Appellant was wrongfully convicted of the felony offense of possession
         of a firearm by a felon because the Court erred in overruling his Motion
         to Suppress the Search of the Motor Vehicle. This error allowed the
         jury to consider evidence, the firearm, which was obtained in violation
         of the 5th and 14th Amendments to the United States Constitution and
         Article 1, Sections 9, 10, and 19 of the Texas Constitution. The jury
         would not have convicted Appellant of this offense absent the Court’s
         error.

                              STATEMENT OF THE FACTS

      The Court erred in overruling Appellant’s Motion to Suppress the Search of

the Motor Vehicle; thus, the jury wrongfully convicted Appellant of the felony

offense of possession of a firearm by a felon. This error allowed the jury to consider

evidence, the firearm, which was obtained in violation of the 5th and 14th

Amendments to the U. S. Constitution and Article 1, Sections 8, 9, and 19 of the

Texas Constitution. U. S. Const. Amend V and XIV; Tex. Const. Art. 1, §§9, 10.

And 19. The jury would not have convicted Appellant of this offense without the

Court’s error.

      On July 25, 2013, Fort Worth Police Officer Evans arrested Appellant at a

Chevron station in Fort Worth, Texas. (4 RR 16). Appellant drove a Chevrolet

impala into the station and Officer Evans recognized Appellant because there were

warrants issued for his arrest for traffic violations. (4 RR 16-17). After Appellant

exited the vehicle and entered the Chevron, Officer Evans followed Appellant into

                                                                                    4
the Chevron station and arrested him based on the outstanding warrants. (4 RR 17,

19-21). Officer Evans moved Appellant out of the station and placed him in the back

seat of the patrol car. (4 RR 21). Officer Evans waited for additional officers to

arrive at the Chevron station. (4 RR 21). After the other officers arrived at the scene,

Officer Evans transported Appellant to the jail. (4 RR 21-22).

      Subsequent to Appellant being transported, Officer Evans looked in the

Chevrolet Impala and saw a pit bull and a black bag in the Impala. (4 RR 21-22).

Officer Evans then made a decision to impound the Chevrolet impala. (4 RR 22, 28).

As support for his decision to impound the Chevrolet impala, Officer Evans stated

that “the location of the vehicle was in a high crime area. The reason I was there to

begin with, being a GM product and Chevy Impala, they are stolen mostly in the

City of Fort Worth.” (4 RR 28, ln. 18-23) Later, Officer Evans testified that he

impounded the Chevrolet Impala “For the protection of the vehicle, the property

itself. And also there was an animal inside the vehicle that had to be removed and

taken into custody.” (4 RR 31. ln.11-16)

      Officer Morehouse arrived at the Chevrolet station and conducted an

inventory search of the Impala. (4 RR 42-44). During the search Officer Morehouse

found a firearm inside the black bag in the vehicle. (4 RR 55-57). Subsequent to

the inventory search, the owner of the Chevrolet Impala arrived at the Chevron


                                                                                      5
station prior to the impala being impounded and the Impala was released to her. (4

RR 27-28, 31, 65).

      Appellant was arrested and charged with the offense of felon in possession of

a firearm. His trial was held in the 396th District Court of Tarrant County, Texas

before the Honorable Elizabeth Berry. The jury convicted Appellant and the

Honorable Judge Berry sentenced Appellant to thirty-two (32) years confinement in

the Institutional Division of the Texas Department of Criminal Justice and has

remained in custody pending trial.

                           ARGUMENT AND AUTHORITIES

                                  JURISDICTION

      Pursuant to Appellate Rule 25.2(a)(2), the trial court has filed with the papers

of this cause a Certificate of Defendant’s Right to Appeal which states that this is

not a plea-bargain case, and the defendant has the right to appeal since the revocation

“is not a plea-bargain case, and the defendant has the right to appeal).” (C.R. 70).

Thus, this Court has jurisdiction to hear Appellant’s appeal. Tex. R. App. P.

25.2(a)(2).




                                                                                     6
           ARGUMENT AND AUTHORITIES POINTS OF ERROR

                            POINT OF ERROR 1 - RESTATED

         THE TRIAL COURT ERRED WHEN IT OVERRULED
         APPELLANT’S MOTION TO SUPPRESS EVIDENCE SEIZED
         FROM HIS PERSON IN VIOLATION OF ARTICLE I, SECTIONS
         9, 10, AND 19 OF THE TEXAS CONSTITUTION.

                            POINT OF ERROR 2 - RESTATED

         THE TRIAL COURT ERRED WHEN IT OVERRULED
         APPELLANT’S MOTION TO SUPPRESS EVIDENCE SEIZED
         FROM HIS PERSON IN VIOLATION OF ARTICLE 38.23 OF THE
         TEXAS CODE OF CRIMINAL PROCEDURE

                            POINT OF ERROR 3 - RESTATED

         THE TRIAL COURT ERRED WHEN IT OVERRULED
         APPELLANT’S MOTION TO SUPPRESS EVIDENCE SEIZED
         FROM HIS PERSON IN VIOLATION OF ARTICLE 18.22 OF THE
         TEXAS CODE OF CRIMINAL PROCEDURE

                            POINT OF ERROR 4 - RESTATED

         THE TRIAL COURT ERRED IN DENYING APPELLANT’S
         MOTION TO SUPPRESS EVIDENCE SEIZED FROM THE
         PERSON IN VIOLATION OF HIS RIGHTS GUARANTEED
         UNDER THE FOURTH, FIFTH, AND FOURTEENTH
         AMENDMENTS TO THE U.S. CONSTITUTION.

A. MOTION TO SUPPRESS – STANDARD OF REVIEW:

      A trial court’s ruling on a motion to suppress is reviewed under a bifurcated standard

of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); see also

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court’s denial of a

motion to suppress is reviewed for an abuse of discretion, Oles v. State, 993 S.W.2d 103,

                                                                                          7
106 (Tex. Crim. App. 1999), but when the trial court’s rulings do not turn on the credibility

and demeanor of the witnesses, Appellate Courts apply a de novo standard of review.

Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).

B. MOTION TO SUPPRESS – THE APPLICABLE LAW:

       The Fourth Amendment protects against unreasonable searches and seizures by

government officials. U.S. Const. Amend. IV; U.S. Const. Amend. XIV; Wiede v. State,

214 S.W.3d 17, 24 (Tex. Crim. App. 2007). The Texas Constitution contains similar rights.

Tex. Const. Art. I, §§ 9, 10, and 19. The defendant bears the initial burden of producing

evidence that rebuts the presumption of proper police conduct when alleging a violation of

the U.S. or Texas constitution. Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App.

2007). A defendant satisfies this burden by establishing that a search or seizure occurred

without a warrant. Id. Once the defendant has made this showing, the burden of proof shifts

to the State, who is then required to establish that the search or seizure was conducted

pursuant to a warrant or the search was reasonable. Tex. Code Crim. Proc. Arts. 18.01&

18.04 (2007); Amador, 221 S.W.3d at 673; Torres v. State, 182 S.W.3d 899, 902 (Tex.

Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

       A police officer’s inventory search of the contents of an automobile is permissible

under the Fourth Amendment of the United States Constitution and Article 1, Section 9 of

the Texas Constitution if conducted pursuant to a lawful impoundment. See Colorado v.

Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987); S. Dakota v.

Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976); Benavides v.

                                                                                           8
State, 600 S.W.2d 809, 810 (Tex. Crim. App. 1980); Moskey v. State, 333 S.W.3d 696, 702

(Tex. App.–Houston [1st Dist.] 2010, no pet.).

       Inventories serve to protect the following: (1) the owner's property while it is in

custody, (2) the police against claims or disputes over lost or stolen property, and (3) the

police from potential danger. Opperman, 428 U.S. at 369, 96 S.Ct. at 3097. Inventory

searches should be designed to produce an inventory, not turned into a purposeful and

general means of discovering evidence of a crime. Florida v. Wells, 495 U.S. 1, 4, 110

S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990). The officer may conduct an inventory search

subsequent to a decision to impound a vehicle, unless there has been a showing that the

officer acted in bad faith or for the sole purpose of investigation. Bertine, 479 U.S. at 372–

73, 107 S.Ct. at 741–42.

       The state bears the burden of proving that an impoundment is lawful and may satisfy

its burden by showing that (1) the driver was arrested, (2) no alternatives other than

impoundment were available to ensure the vehicle's protection, (3) the impounding agency

had an inventory policy, and (4) the policy was followed. Garza v. State, 137 S.W.3d 878,

882 (Tex. App.–Houston [1st Dist.] 2004, pet. ref'd).

       Two general categories of events will justify impoundment. See Rodriquez v. State,

641 S.W.2d 955, 958 (Tex. App.–Amarillo 1982, no writ). First, an officer may impound

a vehicle when the vehicle is a danger to traffic. Id. Second, an officer may impound a

vehicle after the arrest of the vehicle's driver when the vehicle cannot be protected by any

means other than impoundment. Id.; Greer v. State, 436 S.W.3d 1, 7 (Tex. App.–Waco

                                                                                            9
2014, no pet.). An officer need not independently investigate possible alternatives to

impoundment absent some objectively demonstrable evidence that alternatives did exist.

Greer, 436 S.W.3d at 7.

      The Fort Worth Police Department issued Policies and Procedures (Policy 320.01

A). This governs when and under what circumstances a motor vehicle may be impounded.

Policy 320.01 A was admitted as State’s Exhibit 1 and reads as follows:

       An officer of the department may impound a motor vehicle and conduct a standard
inventory of its contents under the following circumstances:

   1. Removal of motor vehicles from the scene of an accident.
   2. Impoundment of motor vehicles parked in a tow away zone.
   3. The motor vehicle is stolen or the officer has probable cause to believe that it is
      stolen.
   4. The driver is removed from the vehicle and placed under arrest, there is reasonable
      connection between the arrest and the vehicle, and no other alternatives are
      available other than impoundment to ensure the protection n of the vehicle.
   5. The owner or driver requests or consents to the impoundment by the officer.
   6. A motor vehicle which is being stored on any public street, parkway, sidewalk, or
      alley in accordance with General Order 320.07,
   7. A motor vehicle, which constitutes a danger, hazard, or obstruction to others using
      the public to others using the public streets or highways.
   8. The officer is authorized to seize and impound the motor vehicle under statute
      (e.g., section 103.03 of the Alcoholic Beverage code), a city ordinance, a court
      order, or the laws of search or seizure.

      None of the conditions listed above were present at the time of the impoundment.

Officer Evans did not follow the procedures of the Fort Worth Police Department when he

decided to impound the Chevrolet Impala automobile. The Impala was not involved in an

accident nor was it illegally parked. (4-24, 25). Appellant was not removed from the

Impala for an arrest. According to Officer Evans—the arresting officer—Appellant was


                                                                                      10
arrested inside the Chevron station, while he was outside of the vehicle; thus, he was not

removed from the Impala for an arrest. Officer Evans admitted, multiple times, that he did

not follow the policies and procedures of the Fort Worth Police Department when he

impounded the Impala. Based on Officer Evans’s own testimony, none of the permitted

circumstances for impoundment were present in this instant case. According to Officer

Evans, the reason for the impoundment was: “For protection of the vehicle, the property

itself. And also there was an animal inside the vehicle which had to be removed and taken

into safety.” This is not a valid reason for impounding the Impala under the policies and

procedures of the Fort Worth Police Department.

       Needing to impound the vehicle for the safety of the animal is not a valid condition

for impounding the Impala. Even then, according to Officer Morehouse, the animal was

removed from the vehicle before he even started to inventory the Impala. Therefore, any

reasoning provided by the officers of the Fort Worth Police Department do not support a

proper inventory search. An inventory search is only authorized when a vehicle is

impounded. Officer Morehead admitted that the policies and procedures of the Fort Worth

Police Department did not authorize impounding the Impala.

       The impoundment of the Impala was not authorized under the policies and

procedures of the Fort Worth Police Department; thus, the impoundment and subsequent

inventory search of the vehicle was unconstitutional. Under Garza v. State, the state carries

the burden of proving that the impoundment is lawful. Garza v. State, 137 S.W.3d 878, 882

(Tex. App.–Houston [1st Dist.] 2004, pet. ref’d). They may satisfy this burden by proving

                                                                                          11
the following: (1) the driver was arrested, (2) no alternatives other than impoundment were

available to ensure the vehicle's protection, (3) the impounding agency had an inventory

policy, and (4) the policy was followed. The state did not prove that the policies and

procedures of the Fort Worth Police Department were followed when the Impala was

impounded. Id. Based on testimony of officers involved and their admissions, they did not

follow their own inventory policy.      The inventory search was invalid because the

impoundment was not authorized and Appellant’s rights were violated under the 4th and

14th Amendments to the U. S. Constitution.

C. ERROR IN ADMITTING EVIDENCE – HARM ANALYSIS:

       The firearm seized from the vehicle was the only evidence that supported

Appellant’s conviction. The harm to Appellant resulting from the trial court’s wrongful

overruling of his Motion to Suppress Evidence is evident. This Court should reverse

Appellant’s conviction and order a new trial because the fruits of the illegal conduct

harmed Appellant. Based on the above and foregoing, Appellant’s rights as guaranteed

under the Fourth, Fifth, and Fourteenth Amendments to the U. S. Constitution, Article

38.23 of the Texas Code of Criminal Procedure, and Article 1, Sections 9, 10, and 19 of

the Texas Constitution were violated and such violations require Appellant’s conviction to

be reversed. U.S. Const. Amend. IV, V, XIV; Tex. Const. Art. I, §9; §10, and §19; and

Tex. Code Crim. Proc. Art. 38.23 (2001); Tex. Code. Crim. Proc. Art. 18.22(2001).




                                                                                        12
                                          PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays:

      1.     That the judgment in this case be reformed and the deadly weapon finding

be stricken from the judgment;

      2.     To any further relief to which the Appellant may be entitled.


                                        Respectfully submitted,

                                        Stickels & Associates, P.C.
                                        P. O. Box 121431
                                        Arlington, Texas 76012
                                        Phone: (817) 479-9282
                                        Fax: (817) 622-8071



                                        BY: /S/ John W. Stickels
                                              John W. Stickels
                                              State Bar No. 19225300
                                              john@stickelslaw.com
                                              Bethel T. Zehaie
                                              SBOT No. 24073791
                                              bethel@stickelslaw.com
                                              Attorneys for Brence J. Walker


                          CERTIFICATE OF SERVICE

             I hereby certify that a true and correct copy of this Brief has been served
on the office of the Attorney for the State, on the 2nd day of July, 2015.

                                        /S/ John W. Stickels
                                        John W. Stickels


                                                                                     13
                          CERTIFICATE OF COMPLIANCE

       1.     This brief complies with the type-volume limitation of Tex. R. App. P.
9.4(i)(2) because it contains 3,040 words, excluding the parts of the brief exempted by
Tex. R. App. P. 9(4)(i)(1).

       2.     This brief complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in proportional spaced typeface using Microsoft
Word software in Times New Roman 14-Point text and Times New Roman 12-point
font in footnotes.


                                              /S/ John W. Stickels
                                              John W. Stickels




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