                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-18-00629-CR

                                       Kevin Apolinar JOHNS,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2017CR2450
                             Honorable Joey Contreras, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Beth Watkins, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: July 10, 2019

AFFIRMED

           After the trial court denied his motion to suppress, Kevin Apolinar Johns pled guilty to

possession of a controlled substance and was sentenced as a repeat offender to fifteen years’

imprisonment. On appeal, Johns asserts the trial court erred by: (1) denying his motion to suppress;

(2) sua sponte questioning the witness at the suppression hearing; and (3) denying his motion for

new trial. We overrule Johns’s issues and affirm the trial court’s judgment.
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                                            BACKGROUND

       Deputy Kevin Rasmussen was the only witness to testify at the suppression hearing.

Deputy Rasmussen testified he stopped Johns because the taillights of the rental vehicle he was

driving were not working. Johns told Deputy Rasmussen that he was on probation and might have

outstanding warrants. Deputy Rasmussen asked Johns to exit the vehicle and patted him down for

weapons. Johns then consented to a search of his person. In searching Johns, Deputy Rasmussen

discovered a substance in his pocket which he believed was methamphetamines. After arresting

Johns and placing him in the back of the patrol car, Deputy Rasmussen searched Johns’s vehicle

and discovered more controlled substances in Johns’s wallet and a handgun under the driver’s seat.

       As previously noted, Johns pled guilty to possessing a controlled substance after his motion

to suppress was denied. Johns later filed a motion for new trial based on newly discovered

evidence. The trial court denied the motion for new trial after a hearing. Johns appeals.

                                      MOTION TO SUPPRESS

       In his first issue, Johns contends the trial court erred in denying his motion to suppress

because Deputy Rasmussen did not have a warrant to search his vehicle and no exception to the

warrant requirement applied. The State responds the search was valid as a search incident to

Johns’s arrest or as an inventory search.

       A.      Standard of Review

       We review a trial court’s ruling on a motion to suppress evidence under a bifurcated

standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App. 2018). “Although

we give almost total deference to the trial court’s determination of historical facts, we conduct a

de novo review of the trial court’s application of the law to those facts.” Love v. State, 543 S.W.3d

835, 840 (Tex. Crim. App. 2016) (internal quotation omitted). As an appellate court, we will

affirm the trial court’s ruling if “it is correct under any theory of law applicable to the case, even


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if the trial court did not rely on that theory.” Leming v. State, 493 S.W.3d 552, 562 (Tex. Crim.

App. 2016).

       B.      Applicable Law

       “[O]nce the occupant of a vehicle is lawfully arrested, the Fourth Amendment permits a

warrantless search of the vehicle’s passenger compartment . . . ‘when it is reasonable to believe

that evidence of the offense of arrest might be found in the vehicle.’” State v. Sanchez, 538 S.W.3d

545, 548 (Tex. Crim. App. 2017) (quoting Arizona v. Gant, 556 U.S. 332, 335 (2009)). For

example, when a driver is lawfully arrested for a drug offense, it is reasonable for the arresting

officer “‘to believe that further contraband or similar evidence relevant to the crime for which he

had been arrested might be found in the vehicle from which he had just alighted and which was

still within his vicinity at the time of arrest.’” Id. at 548-59 (quoting Justice Scalia’s concurring

opinion in Thornton v. United States, 541 U.S. 615, 632 (Scalia, J., concurring) and noting Gant

adopted that opinion).

       An inventory search is permissible under the state and federal constitutions if it is

conducted pursuant to a lawful impoundment. Benavides v. State, 600 S.W.2d 809, 810 (Tex.

Crim. App. [Panel Op.] 1980). An impoundment is lawful if the driver is removed from his vehicle

and placed under custodial arrest and no other alternatives are available other than impoundment

to ensure the protection of the vehicle. Id. at 811; see also Yaws v. State, 38 S.W.3d 720, 724

(Tex. App.—Texarkana 2001, pet. ref’d) (noting impoundment reasonable when driver is alone

when arrested); Mayberry v. State, 830 S.W.2d 176, 180 (Tex. App.—Dallas 1992, pet. ref’d)

(holding the State met its burden to show that impoundment was lawful when the arrestee was

alone and no one was readily available to take care of the car). An inventory search is not unlawful

simply because it is conducted before the vehicle is actually towed and impounded. Daniels v.

State, 600 S.W.2d 813, 815 (Tex. Crim. App. [Panel Op.] 1980); Jackson v. State, 468 S.W.3d


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189, 195 (Tex. App.—Houston [14th Dist.] 2015, no pet.). 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 automobile’s

protection, (3) the impounding agency had an inventory policy, and (4) the policy was followed.

State v. Cook, 389 S.W.3d 376, 380 (Tex. App.—Texarkana 2012, no pet.); Garza v. State, 137

S.W.3d 878, 882 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).

       C.      Analysis

       Because Johns was arrested for possession of a controlled substance, it was reasonable for

Deputy Rasmussen “‘to believe that further contraband or similar evidence relevant to the crime

for which [Johns] had been arrested might be found in the vehicle from which he had just alighted

and which was still within his vicinity at the time of arrest.’” Sanchez, 538 S.W.3d at 548 (quoting

Thornton, 541 U.S. at 632 (Scalia, J., concurring)). Therefore, the trial court did not abuse its

discretion in denying the motion to suppress because the search of Johns’s vehicle was permissible

under the search incident to arrest exception to the warrant requirement.

       Furthermore, Johns was the only occupant of the vehicle; therefore, no alternatives other

than impoundment were available to ensure the vehicle’s protection.           In addition, Deputy

Rasmussen testified he was required to inventory Johns’s vehicle or the tow company would not

pick up the vehicle. Accordingly, the trial court also did not abuse its discretion in denying the

motion to suppress because the search of Johns’s vehicle was permissible under the inventory

exception to the warrant requirement.

       Johns’s first issue is overruled.




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                                     QUESTIONING WITNESS

       In his second issue, Johns contends the trial court violated his right to a fair trial by

questioning Deputy Rasmussen at the suppression hearing. Johns asserts the trial court assumed

the role of a prosecutor in asking the questions.

       A.      Preservation

       Acknowledging that no objection was made to the trial judge’s questioning of Deputy

Rasmussen, Johns cites Proenza v. State, 541 S.W.3d 786 (Tex. Crim. App. 2017), to assert no

objection was required because the questioning was fundamental error. In Proenza, the Texas

Court of Criminal Appeals held claims of improper judicial comments raised under Article 38.05

do not require an objection to preserve the complaint for appellate review. 541 S.W.3d at 801.

Although we believe a distinction exists between a trial judge’s questioning of a witness at a

suppression hearing, and a trial judge’s commenting on the evidence at a jury trial, we will assume

for purposes of this appeal that error was preserved. See Brewer v. State, 572 S.W.2d 719, 721

(Tex. Crim. App. [Panel Op.] 1978) (overruling complaint regarding trial judge’s questioning of

witnesses despite absence of objection but noting conduct of the trial court in questioning

witnesses could only be challenged if conduct was fundamentally erroneous).

       B.      Standard of Review and Applicable law

       “Due process requires a neutral and detached hearing body or officer.” Brumit v. State,

206 S.W.3d 639, 645 (Tex. Crim. App. 2006). A reviewing court presumes the trial court was

neutral and detached absent a clear showing to the contrary. Id. A trial judge is permitted to

question a witness when seeking information to clarify a point or to obtain a clearer idea of the

merits of the case. See Brewer, 572 S.W.2d at 721 (holding questioning by trial court for purpose

of clarifying an issue is permissible); Marshall v. State, 297 S.W.2d 135, 136-37 (Tex. Crim. App.

1956) (holding “court had the right to question the witness in order to obtain a clearer idea of the


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merits of the case” in a case tried without a jury). In bench trials, “a trial judge may question a

witness in order to clarify an issue the trial judge must decide in fulfilling his fact-finding role.”

In re R.P., 37 S.W.3d 76, 79 (Tex. App.—San Antonio 2000, no pet.). However, a trial judge must

avoid becoming involved as an advocate to the extent that he cannot make an objective finding of

fact in the case. Id. “When reviewing complaints about the trial judge’s questioning of a witness,

we apply an abuse of discretion standard.” Badillo v. State, No. 07-07-0081-CR, 2009 WL

425149, at *6 (Tex. App.—Amarillo Feb. 20, 2009, no pet.) (not designated for publication).

       C.      Analysis

       In this case, the questioning occurred during a suppression hearing, so there was no danger

of influencing a jury. In addition, the trial judge’s questions sought to clarify issues relating to

Johns’s verbal consent to search and Deputy Rasmussen’s search of the vehicle, and the trial court

was required to make factual findings regarding these issues in ruling on the motion to suppress.

Finally, the record does not indicate the trial judge abandoned his neutral and detached role.

Accordingly, the trial court did not abuse its discretion in questioning Deputy Rasmussen, and

Johns’s second issue is overruled.

                                     MOTION FOR NEW TRIAL

       In his third issue, Johns contends the trial court erred in denying his motion for new trial

based on newly discovered evidence.

       A.      Standard of Review

       “We review a trial court’s denial of a motion for new trial under an abuse of discretion

standard.” McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012). “A trial court

abuses its discretion in denying a motion for new trial when no reasonable view of the record could

support the trial court’s ruling.” Id.




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        Article 40.001 of the Texas Code of Criminal Procedure provides, “A new trial shall be

granted an accused where material evidence favorable to the accused has been discovered since

trial.” TEX. CODE CRIM. PROC. ANN. art. 40.001. “To obtain relief under this provision, the

defendant must satisfy the following four-prong test: (1) the newly discovered evidence was

unknown or unavailable to the defendant at the time of trial; (2) the defendant’s failure to discover

or obtain the new evidence was not due to the defendant’s lack of due diligence; (3) the new

evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and

(4) the new evidence is probably true and will probably bring about a different result in a new

trial.” State v. Arizmendi, 519 S.W.3d 143, 149 (Tex. Crim. App. 2017).

        B.      Analysis

        Johns’s motion for new trial asserted records from the car rental company from which he

rented the vehicle he was driving the night he was arrested constituted “newly discovered

evidence.” Johns contends the records showed no repairs to the taillights were made after the

rental car was returned which would contradict Deputy Rasmussen’s testimony regarding the

reason for the traffic stop.

        Under the first prong of the applicable test, however, no showing was made that the records

were unknown or unavailable to Johns at the time of trial. In fact, Johns’s attorney made reference

to the records as a basis for a verbal motion for continuance at the suppression hearing. Although

Johns’s attorney stated she was recently appointed, the suppression hearing was held two years

after Johns was arrested, and no evidence was presented regarding the reason the records were not

previously obtained. In addition, Johns’s trial attorney testified at the hearing on the motion for

new trial that the records were not necessary, and she only requested the continuance because

Johns insisted the records be obtained. Finally, the trial court noted the records presented at the

hearing were not clear with regard to the issue of whether the taillights were operable when Johns


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was arrested. Although the attorney representing Johns on the motion for new trial sent an email

to the car rental company asking if any repairs were made to the car after it was returned and

received a response that no repairs were made, the trial court questioned whether the car rental

company would consider changing a light bulb in a taillight to be a repair. The trial court also

noted the email could specifically have asked about the taillights rather than asking about repairs.

Given the two-year time period between the day of Johns’s arrest and the suppression hearing, the

availability of the records, and the nature of the records presented at the hearing, we hold the trial

court did not abuse its discretion in denying the motion for new trial because Johns did not satisfy

the applicable four-prong test. Johns’s third issue is overruled.

                                           CONCLUSION

       The trial court’s judgment is affirmed.

                                                   Rebeca C. Martinez, Justice

DO NOT PUBLISH




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