                                      NO. 12-15-00055-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

JORGE ZEPEDA,                                   §      APPEAL FROM THE
APPELLANT

V.                                              §      COUNTY COURT AT LAW NO. 2

THE STATE OF TEXAS,
APPELLEE                                        §      SMITH COUNTY, TEXAS

                                      MEMORANDUM OPINION
       Jorge Zepeda appeals his conviction for possession of a usable quantity of marijuana in
an amount of less than two ounces. In one issue, Appellant argues that the trial court erred when
it denied Appellant’s motion to suppress evidence. We affirm.


                                          BACKGROUND
       Tyler Police Officer Charles Boyce initiated a traffic stop after witnessing Appellant’s
failure to signal properly. Boyce discovered that Appellant’s driver’s license was suspended.
Further, although the owner of the vehicle, Appellant’s father, had insured the vehicle, Appellant
was listed as an excluded driver. Additionally, police dispatch informed Boyce that Appellant
had prior convictions for driving without a valid license and failure to maintain financial
responsibility (lack of insurance).
       Due to Appellant’s failure to have a valid license or insurance coverage, and his prior
convictions for the same offenses, Officer Boyce decided to impound the vehicle.           Boyce
contacted a towing company and then conducted an inventory search of the vehicle. During the
inventory search, Boyce found marijuana in the vehicle’s ashtray.
       Appellant was charged by information with the offense of possession of a usable quantity
of marijuana in an amount of less than two ounces. Appellant filed a motion to suppress,
asserting that the inventory search was illegal. The trial court found that the Tyler Police
Department’s policy regarding the impoundment and inventorying of vehicles mandates
impoundment following (1) confirmation that the defendant has a previous conviction for failing
to maintain financial responsibility or (2) upon determination that the defendant’s license is
currently suspended for not having insurance and the defendant fails to prove financial
responsibility on the vehicle being operated. The trial court also found that a lawful inventory of
Appellant’s vehicle was performed pursuant to Tyler Police Department’s policy. The trial court
determined that Officer Boyce was acting in good faith and was not motivated by a desire to
uncover evidence.
       The trial court concluded that a green leafy substance believed to be marijuana was
discovered during a lawful inventory search pursuant to Tyler Police Department guidelines,
Appellant’s vehicle was lawfully towed pursuant to Tyler Police Department guidelines, Officer
Boyce’s inventory search was in compliance with Tyler Police Department policy, and the
substance believed to be marijuana was obtained pursuant to a lawful impoundment and
inventory of Appellant’s vehicle. Accordingly, the trial court denied Appellant’s motion to
suppress.
       Appellant later pleaded “guilty” to the charged offense. The trial court placed Appellant
on deferred adjudication community supervision for two years and assessed a one hundred dollar
fine. The trial court then certified that Appellant had a right to appeal, and this appeal followed.


                                      MOTION TO SUPPRESS
       In his sole issue, asserting that discovery of the marijuana was the result of an illegal
search, Appellant contends that the trial court erred in denying his motion to suppress. Appellant
argues that the search was improper because Officer Boyce did not consider mitigating
circumstances before impounding the vehicle. Further, Appellant contends that the Tyler Police
Department’s impoundment policy is not reasonable because it is inconsistent. He argues that
one section mandates that a vehicle be impounded while certain subsections indicate that
impounding is not automatic if certain mitigating circumstances exist.
Standard of Review
       A trial court’s decision to grant or deny a motion to suppress is generally reviewed under
an abuse of discretion standard. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App.



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2008). However, we review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give
almost total deference to a trial court’s determination of historical facts, especially if those
determinations turn on witness credibility or demeanor, and review de novo the trial court’s
application of the law to facts not based on an evaluation of credibility and demeanor. Neal v.
State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). When deciding a motion to suppress
evidence, a trial court is the exclusive trier of fact and judge of the witnesses’ credibility.
Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). Accordingly, a trial court may
choose to believe or disbelieve all or any part of a witness’s testimony. See State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000) (en banc). Moreover, if, as here, the trial court makes
express findings of fact, we view the evidence in the light most favorable to the ruling and
determine whether the evidence supports those factual findings. Valtierra v. State, 310 S.W.3d
442, 447 (Tex. Crim. App. 2010). When there is not an express finding on an issue, we infer
implicit findings of fact that support the trial court's ruling as long as those findings are
supported by the record. See id.
       The prevailing party is entitled to “the strongest legitimate view of the evidence and all
reasonable inferences that may be drawn from that evidence.” State v. Castleberry, 332 S.W.3d
460, 465 (Tex. Crim. App. 2011). When all evidence is viewed in the light most favorable to the
trial court’s ruling, an appellate court is obligated to uphold the ruling on a motion to suppress if
that ruling was supported by the record and was correct under any theory of law applicable to the
case. See Valtierra, 310 S.W.3d at 447-48; Ross, 32 S.W.3d at 856.
Applicable Law
       If conducted pursuant to a lawful impoundment, a police officer’s inventory search of the
contents of an automobile is permissible under the Fourth Amendment of the United States
Constitution. See Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741, 93 L. Ed. 2d 739
(1987); Benavides v. State, 600 S.W.2d 809, 810 (Tex. Crim. App. [Panel Op.] 1980).
Inventories serve to protect (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, 479 U.S. at 372, 107 S. Ct. at 741. 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). Unless



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there has been a showing that the officer acted in bad faith or for the sole purpose of
investigation, the officer may conduct an inventory search subsequent to a decision to impound a
vehicle. 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). Impoundment may be justified if the driver is unavailable
to drive the vehicle, even if he was not arrested. See Moskey v. State, 333 S.W.3d 696, 701
(Tex. App—Houston [1st Dist.] 2010, no pet.) (recognizing that law enforcement may impound
vehicle when it is unable to be legally driven from the scene by anyone present); see also
Rodriquez v. State, 641 S.W.2d 955, 958 (Tex. App.–Amarillo 1982, no pet.) (noting that law
enforcement may impound vehicle when driver becomes too ill to drive).
       However, the state is not required to prove that impoundment and an inventory search
was the least intrusive means of protecting the vehicle. Moskey, 333 S.W.3d at 700. Further, an
officer need not independently investigate possible alternatives to impoundment absent some
objectively demonstrable evidence that alternatives did, in fact, exist. Garza, 137 S.W.3d at 882.
Analysis
       The State presented evidence that supports the trial court’s findings. Officer Boyce
testified, explaining that he saw Appellant commit a traffic violation and initiated a traffic stop.
He immediately smelled the odor of marijuana in Appellant’s vehicle.              Boyce requested
Appellant’s driver’s license and proof of insurance, and quickly recognized that Appellant was
listed as an excluded driver on the insurance. Also, Appellant’s license was suspended. Boyce
contacted dispatch, and learned that Appellant had prior convictions for driving while his license
was invalid and failure to maintain financial responsibility.
       Officer Boyce decided that Appellant’s vehicle should be impounded because Appellant
was not covered by the insurance for the vehicle, had a suspended license, and had prior
convictions for driving without insurance and a valid license. Boyce conducted an inventory
search of the vehicle after deciding to impound the vehicle. It was during this inventory search
that Boyce discovered marijuana in the vehicle’s ashtray. Boyce believed that he followed Tyler




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Police Department’s policy when he impounded the vehicle. The State placed the applicable
police department policies into evidence.
       Appellant argues that Officer Boyce’s inventory search was unlawful because Boyce did
not properly consider mitigating circumstances when he decided to impound the vehicle. We
first note that Officer Boyce said that he considered mitigating circumstances, but did not believe
that those circumstances required him to change his decision to impound the vehicle. As for the
mitigating circumstances raised by Appellant, we address those in turn.
       The record shows that Appellant’s father had insurance on the vehicle. However, Officer
Boyce recognized that the insurance policy was of no effect as to Appellant because Appellant
was named as an excluded driver. Accordingly, Boyce knew that he could not allow Appellant
to drive the vehicle. No one else was with Appellant. Therefore, there was no one at the scene
who could lawfully drive the vehicle. See Moskey, 333 S.W.3d at 701.
       Appellant points out that Officer Boyce failed to contact Appellant’s father or allow
Appellant to contact his father. At the hearing, Appellant’s father contended that, if he had been
called, he could have arrived at the scene of the traffic stop within ten minutes and he could have
retrieved the vehicle. However, Boyce did not know how long it would take for Appellant’s
father to arrive at the scene, and he was under no obligation to investigate this potential
alternative to impoundment. See Garza, 137 S.W.3d at 882.
       Finally, Appellant notes that Officer Boyce stopped Appellant in the daytime near a
parking lot, but did not consider moving the vehicle to the parking lot instead of having it towed.
Even if we assume that Boyce determined this action would adequately protect Appellant’s
vehicle, the State is not required to prove that impoundment and an inventory search was the
least intrusive means of protecting the vehicle. Moskey, 333 S.W.3d at 700.
       Appellant further argues that the Tyler Police Department policy on impoundment is
unreasonable because it both requires impoundment and allows officers to avoid impoundment if
mitigating circumstances apply. We do not read the policy to restrict an officer’s discretion to
consider mitigating circumstances. In fact, the policy specifically authorizes officers to exercise
such discretion, and Officer Boyce testified that he considered mitigating circumstances in this
case. Boyce simply chose to impound the vehicle because he did not believe that mitigating
circumstances warranted a different decision. There is no showing that Boyce acted in bad faith
or for the sole purpose of investigation. See Bertine, 479 U.S. at 372-73, 107 S. Ct. at 741-42.



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         Based on our review of the record, we conclude that the evidence supports the trial
court’s findings that Officer Boyce properly impounded Appellant’s vehicle and properly
conducted an inventory search subsequent to the decision to impound. See Garza, 137 S.W.3d at
882. Accordingly, the trial court did not abuse its discretion in denying Appellant’s motion to
suppress. Appellant’s sole issue is overruled.


                                                   DISPOSITION

         We affirm the trial court’s judgment.
                                                                 BRIAN HOYLE
                                                                    Justice



Opinion delivered May 27, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                              MAY 27, 2016


                                         NO. 12-15-00055-CR


                                        JORGE ZEPEDA,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                            Appeal from the County Court at Law No 2
                        of Smith County, Texas (Tr.Ct.No. 002-82159-14)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
