REVERSE and REMAND; and Opinion Filed April 1, 2015.




                                                    S   In The
                                          Court of Appeals
                                   Fifth District of Texas at Dallas
                                                  No. 05-14-00553-CR

                                           JEFFREY RAY COX, Appellant
                                                      V.
                                          THE STATE OF TEXAS, Appellee

                                On Appeal from the 15th Judicial District Court
                                           Grayson County, Texas
                                       Trial Court Cause No. 063252

                                         MEMORANDUM OPINION
                                     Before Justices Bridges, Fillmore, and Brown
                                             Opinion by Justice Fillmore
          A jury found Jeffrey Ray Cox guilty of possession of less than one gram of

methamphetamine. The trial court sentenced Cox to eight years’ imprisonment, probated the

sentence, and placed Cox on community supervision for eight years. In his first two issues on

appeal, Cox asserts the trial court erred by denying his pretrial motion to suppress evidence

found during a warrantless search of a vehicle and his pretrial motion to suppress statements he

made before and after he was advised of his Miranda 1 rights. In his third issue, Cox contends the

evidence is insufficient to support the conviction for possession of a controlled substance. We

conclude that, because the State failed to meet its burden of establishing there was a valid

inventory search of the vehicle, the trial court erred by denying Cox’s motion to suppress


   1
       Miranda v. Arizona, 384 U.S. 436 (1966).
evidence found during the search of the vehicle and that Cox was harmed by the error.

Accordingly, we reverse the trial court’s judgment and remand this case to the trial court for

further proceedings.

                                          Background

       Collinsville police officer Michael Aguirre instigated a traffic stop after Cox failed to

stop at a designated point. After arresting Cox for the traffic violation, Officer Aguirre called a

tow truck to impound the pickup truck Cox was driving and conducted an inventory search of the

vehicle. During the search, Officer Aguirre found a digital scale on which there was the residue

of a crystal substance. Officer Aguirre advised Cox of his Miranda rights and, after agreeing to

answer Officer Aguirre’s questions, Cox said the substance was probably methamphetamine.

Officer Aguirre continued searching the truck and found a glass pipe containing a crystal residue.

The crystal substance on the scales was subsequently determined to be methamphetamine.

       Cox was charged with possession of less than one gram of methamphetamine. Cox filed

a pretrial motion to suppress all evidence found in the truck, arguing Officer Aguirre’s search

was conducted without a warrant and was not a valid inventory search. Cox also filed a motion

to suppress statements he made to Officer Aguirre on the ground that Officer Aguirre conducted

a custodial interrogation without informing Cox of his Miranda rights and then, after informing

him of his Miranda rights, continued the prior interrogation. After a hearing, the trial court

denied both motions to suppress.

       The jury found Cox guilty of the charge. The trial court sentenced Cox to eight years’

imprisonment, probated the sentence, and placed Cox on community supervision for eight years.

                                        Inventory Search

       In his first issue, Cox complains the trial court erred by denying his motion to suppress

all evidence obtained during the search of the vehicle. Cox specifically argues the search of the

                                               –2–
truck was not a proper inventory search because the vehicle was not lawfully impounded, the

impounding agency did not have an inventory policy and, even if a sufficient policy exists, it was

not followed.

                                          Relevant Facts

       At the hearing on Cox’s motions to suppress, Officer Aguirre testified he observed Cox

failing to stop at a designated point. Specifically, instead of stopping at a stop sign, Cox stopped

the pickup truck in the middle of the intersection. Officer Aguirre instigated a traffic stop based

on the violation. The stop was recorded by a chest camera worn by Officer Aguirre.

       After obtaining Cox’s identification, Officer Aguirre asked Cox a number of questions,

including whether he knew what time it was; where he worked and lived; what Cox was doing in

Collinsville; and whether there was anything illegal going on. Because it was 1:00 a.m., Officer

Aguirre requested, for officer safety purposes, that Cox get out of the truck. When Officer

Aguirre asked Cox to get out of the truck, he had already decided to arrest Cox on the traffic

violation.

       Officer Aguirre returned to his patrol car to check Cox’s driver’s license status and

whether there were any warrants for Cox’s arrest. While Officer Aguirre was doing so, he

observed Cox making a telephone call. For officer safety purposes, Officer Aguirre immediately

got out of his patrol car and requested that Cox terminate the call. Cox told Officer Aguirre that

he had called the owner of the truck. Officer Aguirre asked Cox if the owner of the truck was

expecting Cox and why the owner was expecting Cox. He did not ask Cox if the owner of the

vehicle was coming to the location of the traffic stop.

       Officer Aguirre returned to his patrol car and learned there were no outstanding warrants

for Cox’s arrest. Officer Aguirre then arrested Cox for failing to stop at a designated point.

Officer Aguirre testified that, although it was pretty common for him to make a traffic stop for

                                                –3–
the failure to stop at a designated point, he did not often make an arrest for that traffic violation.

Officer Aguirre had “no reason” he could offer to distinguish the traffic violation cases he

believed justified an arrest from those that did not. It is “based on the violation,” and it was his

decision to arrest Cox.

       After he arrested Cox, Officer Aguirre asked whether Cox had any identification on him.

Cox indicated it was in his wallet. Officer Aguirre asked where Cox’s wallet was, and Cox

responded that it was in the truck. Officer Aguirre asked whether Cox had anything in his

pockets, how much money he had, where he worked, when he last worked, and whether he had

his money “separated.”

       Officer Aguirre contacted a tow truck to impound the truck and began to do an inventory

search of the vehicle. According to Officer Aguirre, there is a written policy in the “manual”

that a vehicle inventory is to be conducted for any vehicle that is impounded. The policy

underlying the necessity of conducting the inventory is “the property and things of value in the

vehicle, property of value, document everything in the vehicle before it’s released from our

custody.”   The policy required Officer Aguirre to “fill out the form,” or vehicle impoundment

record, when he conducts an inventory search or an impoundment.

       While searching the vehicle, Officer Aguirre found a digital scale in the seat that had the

residue of a crystal substance on it. Officer Aguirre returned to his patrol car and advised Cox of

his Miranda rights. Cox agreed to answer Officer Aguirre’s questions and told Officer Aguirre

the crystal substance was likely methamphetamine. Cox indicated a friend of his had been in the

truck earlier and had probably left the digital scales. Officer Aguirre inquired whether there was

any more methamphetamine in the truck or whether Cox had already sold it. Cox responded that

he used, but did not sell, methamphetamine. Officer Aguirre noted that Cox had said he was

coming from a friend’s house and inquired whether that friend had methamphetamine at his

                                                 –4–
house.      Cox responded the friend whose house he was coming from did not use

methamphetamine. Officer Aguirre then asked where the methamphetamine was coming from,

and Cox stated it was “all over.” Officer Aguirre returned to the truck and continued his search.

          Bobby Cloer, the owner of the truck arrived approximately five minutes after Officer

Aguirre found the digital scales. However, because Officer Aguirre had already discovered the

digital scales in the truck, he refused to release the vehicle to Cloer. Officer Aguirre resumed

searching the vehicle and found a glass pipe containing a crystal residue under the seat.

          The vehicle impoundment record completed by Officer Aguirre was admitted into

evidence. Under the section of the form for the description of any personal property left in the

vehicle, Officer Aguirre wrote only that the vehicle contained miscellaneous tools and

miscellaneous clothing. Officer Aguirre testified the camera he was wearing recorded any

property in the vehicle as well. He admitted, however, that the inventory policy in the manual

did not state that everything in the inventory must be recorded on the video.

          The video of the search was also admitted into evidence. The video shows Officer

Aguirre searching the entire truck, including emptying cans and jars of their contents, looking in

pill bottles, and unfolding crumpled pieces of paper. Officer Aguirre searched some areas of the

truck more than once. Officer Aguirre can be heard commenting to the tow truck driver that he

thinks he is missing something. A number of times, the video goes dark as Officer Aguirre

bends over during his search of the truck and obscures the camera, making it impossible to see

what property is in the truck. However, the video shows a number of items not listed on the

vehicle impoundment form, including what appears to be a car jack, some battery cables, a spare

tire, a number of tools, a heavy chain, a tape player with attached ear buds, a charger for an

electronic device, a blanket, some orange coveralls, the digital scales, the glass pipe, and a

wallet.

                                               –5–
                                        Standard of Review

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

review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We review the trial

court’s factual findings for an abuse of discretion, but review the trial court’s application of the

law to the facts de novo. Id. We give almost total deference to the trial court’s determination of

historical facts, particularly when the trial court’s fact findings are based on an evaluation of

credibility and demeanor. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We

give the same deference to the trial court’s conclusions with respect to mixed questions of law

and fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim.

App. 2012). We review mixed questions of law and fact that do not turn on credibility and

demeanor as well as purely legal questions de novo. State v. Woodward, 341 S.W.3d 404, 410

(Tex. Crim. App. 2011).

       When, as in this case, the trial court does not make explicit findings of fact, we must view

the evidence in a light most favorable to the trial court’s ruling and assume the trial court

resolved any issues of historical fact or credibility consistently with its ultimate ruling. Hubert v.

State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010). We will reverse the trial court’s ruling

“only if it is arbitrary, unreasonable, or ‘outside the zone of reasonable disagreement.’” State v.

Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014) (quoting State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006)). We afford the prevailing party the strongest legitimate view of the

evidence and all reasonable inferences that may be drawn from that evidence. State v. Duran

396 S.W.3d 563, 571 (Tex. Crim. App. 2013). We will uphold the trial court’s ruling if it is

reasonably supported by the record and is correct on any theory of law applicable to the case.

Story, 445 S.W.3d at 732; Turrubiate, 399 S.W.3d at 150.




                                                 –6–
                                                              Analysis

          The Fourth Amendment to the United States Constitution protects against unreasonable

searches and seizures by government officials. U.S. CONST. amend. IV. 2 A defendant asserting a

search violates the Fourth Amendment bears the burden of producing evidence to rebut the

presumption of proper conduct by law enforcement. Woodward, 341 S.W.3d at 412. The

defendant can satisfy this burden by establishing the search occurred without a warrant. Amador

v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007). The burden then shifts to the State to

prove the search was reasonable under the totality of the circumstances. Id. at 672–73. The

State may satisfy its burden by proving the existence of an exception to the warrant requirement.

See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).

          The State concedes the search of the vehicle was conducted without a warrant, but argues

it was a valid inventory search following the impoundment of the vehicle.                                            Valid vehicle

inventory searches are an exception to the Fourth Amendment’s warrant requirement. Colorado

v. Bertine, 479 U.S. 367, 371 (1987). Law enforcement officials may make a warrantless

inventory search of a lawfully impounded vehicle, provided that the inventory is conducted in

good faith and in accordance with standardized criteria or an established routine. Id. at 371–74;

South Dakota v. Opperman, 428 U.S. 364, 372 (1976); Trujillo v. State, 952 S.W.2d 879, 882

(Tex. App.—Dallas 1997, no pet.) (inventory search is reasonable under Fourth Amendment so

long as it is performed in accordance with standard police procedures and not undertaken in bad

faith or for sole purpose of investigation); Moskey v. State, 333 S.W.3d 696, 700 (Tex. App.—

Houston [1st Dist.] 2010, no pet.). These searches “serve to protect an owner’s property while it

is in the custody of the police, to insure against claims of lost, stolen or vandalized property, and


     2
      The Fourth Amendment exclusionary rule is made applicable to the states through the due process clause of the Fourteenth Amendment.
Mapp v. Ohio, 367 U.S. 643, 650–51, 655 (1976); Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).



                                                                 –7–
to guard the police from danger.” Bertine, 479 U.S. at 372; see also Delgado v. State, 718

S.W.2d 718, 721 (Tex. Crim. App. 1986). The inventory search must be designed to produce an

inventory of the vehicle’s contents and must not be a “ruse for a general rummaging in order to

discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990); see also Richards v.

State, 150 S.W.3d 762, 771 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (en banc). “The

individual police officer must not be allowed so much latitude that inventory searches are turned

into ‘a purposeful and general means of discovering evidence of crime.’” Uballe v. State, 439

S.W.3d 380, 384 (Tex. App.—Amarillo 2014, pet. ref’d) (quoting Wells, 495 U.S. at 4).

       The State bears the burden of proving the impounding of the vehicle and the subsequent

inventory search are lawful. Delgado, 718 S.W.2d at 721; Moskey, 333 S.W.3d at 700; see also

Benavides v. State, 600 S.W.2d 809, 810 (Tex. Crim. App. [Panel Op.] 1980) (subsequent

inventory search is proper when the vehicle’s impoundment is proper). A vehicle may be validly

impounded and inventoried when the driver is removed from the automobile and placed under

custodial arrest, and no other alternatives are available to ensure the protection of the driver’s

property. Delgado, 718 S.W.2d at 721; Greer v. State, 436 S.W.3d 1, 7 (Tex. App.—Waco

2014, no pet.); Garza v. State, 137 S.W.3d 878, 882 (Tex. App.—Houston [1st Dist.] 2004, pet.

ref’d). The subsequent inventory search is proper if the impounding agency had an inventory

policy and the policy was followed. Moberg v. State, 810 S.W.2d 190, 195 (Tex. Crim. App.

1991); Roberts v. State, 444 S.W.3d 770, 778 (Tex. App.—Fort Worth 2014, pet. ref’d). To be

lawful, an inventory search must not deviate from the impounding agency’s policy. Moberg, 810

S.W.2d at 195; Roberts, 444 S.W.3d at 778; Josey v. State 981 S.W.2d 831, 843 (Tex. App.—

Houston [14th Dist.] 1998, pet. ref’d).




                                               –8–
       Cox asserts the State failed to establish there was no alternative to impoundment of the

vehicle, the impounding agency had an inventory policy, or that the policy was followed. We

first consider Cox’s argument that the State failed to prove Officer Aguirre followed the

applicable inventory policy. Officer Aguirre testified there was a written policy that required an

inventory of any vehicle that was impounded. Although a copy of the written policy was not

admitted into evidence, Officer Aguirre testified it required “the property and things of value in

the vehicle, property of value, document everything in the vehicle before it’s released from our

custody.” The policy required Officer Aguirre to fill out a vehicle impoundment form. This

form required a description of any personal property left in the vehicle.

       Officer Aguirre’s description on the vehicle impoundment form of personal property in

the truck was miscellaneous tools and miscellaneous clothes. To supplement this description,

Officer Aguirre relied on the video of the search, and the State admitted at oral argument that,

without the video, the description of property on the vehicle impoundment form was not a

sufficient inventory. However, Officer Aguirre testified the inventory policy did not state that

everything in the inventory was required to be recorded on the video. There was no evidence the

policy allowed Officer Aguirre to supplement or replace the required vehicle impoundment form

with a video. Further, the inventory impoundment record did not reference the video and there

was no evidence the video was attached to the completed form. Finally, portions of the video are

black because Officer Aguirre’s movements obscured the camera, Officer Aguirre did not

verbally state on the video what property he was viewing in the vehicle, and nothing about the

video establishes it was intended to be an inventory of the contents of the vehicle.

       Viewing the evidence in the light most favorable to the trial court’s ruling, the only

evidence before the trial court about the applicable policy was that an inventory was required of

any impounded vehicle; the purpose of the inventory was to document property and things of

                                                –9–
value in the vehicle; and the officer impounding the vehicle was required to complete the vehicle

impoundment form, which included a description of personal property left in the vehicle. Officer

Aguirre admitted, and the video shows, there were a number of items of personal property in the

truck that were not listed on the vehicle impoundment form. By failing to list property of value

left in the truck on the vehicle impoundment form, Officer Aguirre failed to comply with the

requirements of the applicable inventory policy. See Moberg, 810 S.W.2d at 195 (inventory

search must not deviate from policy); State v. Stauder, 264 S.W.3d 360, 364 (Tex. App.—

Eastland 2008, pet. ref’d) (affirming suppression when trial court could have concluded that the

inventory search was merely a ruse based on the officers’ complete failure to fill out inventory

form as required). Because the State failed to meet its burden of establishing there was a valid

inventory search, the trial court erred by denying Cox’s motion to suppress the items found

during that search. See Gauldin v. State, 683 S.W.2d 411, 415 (Tex. Crim. App. 1984) (“In the

absence of testimony regarding actual adherence to standard police inventory procedure, the

State has not sustained its burden of proof.”), overruled on other grounds by State v. Guzman,

959 S.W.2d 631, 634 (Tex. Crim. App. 1998); see also Moberg, 810 S.W.2d at 195; Stauder, 264

S.W.3d at 364.

       Having concluded the trial court erred by failing to suppress the digital scales on which

there was a residue of methamphetamine, as well as the glass pipe, we must consider whether

this error harmed Cox. See State v. Daugherty, 931 S.W.2d 268, 273 (Tex. Crim. App. 1996).

Because the denial of Cox’s motion to suppress and the admission of the fruits of the unlawful

search of the truck violated his Fourth Amendment rights, we must reverse the trial court’s

judgment unless we determine beyond a reasonable doubt that the error did not contribute to the

conviction or punishment. See TEX. R. APP. P. 44.2(a); Hernandez v. State, 60 S.W.3d 106, 106,

108 (Tex. Crim. App. 2001); Chidyausiku v. State, Nos. 02-14-00077-CR & 02-14-00078-CR,

                                              –10–
2015 WL 737391, at *3 (Tex. App.—Fort Worth Feb. 19, 2015, no pet. h.). Error does not

contribute to the conviction or punishment if the jury’s verdict would have been the same even if

the erroneous evidence had not been admitted. Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim.

App. 2007). However, if the error has more than a “slight effect,” it is not, beyond a reasonable

doubt, harmless. Phillips v. State, 193 S.W.3d 904, 913 (Tex. Crim. App. 2006). In conducting

our review, we evaluate the entire record in a neutral, impartial, and even-handed manner, not in

the light most favorable to the prosecution. Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim.

App. 1989); Tijerina v. State, 334 S.W.3d 825, 835 (Tex. App.—Amarillo 2011 pet. ref’d).

           The only evidence that Cox possessed less than one gram of methamphetamine stemmed

from Officer Aguirre’s discovery of the digital scales during his search of the vehicle.

Accordingly, we cannot conclude beyond a reasonable doubt that the trial court’s error in

denying Cox’s motion to suppress this evidence did not contribute to Cox’s conviction or had but

slight effect. See Gibson v. State, 253 S.W.3d 709, 717 (Tex. App.—Amarillo 2007, pet. ref’d)

(applying 44.2(a) and concluding appellant was harmed because “the evidence obtained as a

result of the illegal stop formed the basis of appellant’s conviction”). 3 As a result, the error

cannot be harmless.

           We resolve Cox’s first issue in his favor. 4 We reverse the trial court’s judgment and

remand this case to the trial court for further proceedings.




     3
       See also Carillo v. State, No. 05-12-00544-CR, 2014 WL 465424, at *6 (Tex. App.—Dallas Feb. 4, 2014, no pet.) (mem. op., not
designated for publication) (“Because the drug evidence found in appellant’s truck was the only evidence at trial establishing appellant possessed
cocaine, we conclude there is a reasonable likelihood the error contributed directly to appellant’s conviction.”).
     4
       Because we have concluded the evidence does not support the trial court’s implicit finding that Officer Aguirre complied with the
applicable inventory policy, we need not address Cox’s complaints the State failed to establish either that the pickup truck was lawfully
impounded or there was a policy pertaining to an inventory of an impounded vehicle. See TEX. R. APP. P. 47.1.



                                                                     –11–
       Based on our resolution of Cox’s first issue, we need not address his second issue

regarding the trial court’s denial of his motion to suppress the statements he made to Officer

Aguirre or his third issue pertaining to the sufficiency of the evidence to support the conviction.

See TEX. R. APP. P. 47.1.




                                                   /Robert M. Fillmore/
                                                   ROBERT M. FILLMORE
                                                   JUSTICE


Do Not Publish
TEX. R. APP. P. 47

140553F.U05




                                              –12–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

JEFFREY RAY COX, Appellant                             On Appeal from the 15th Judicial District
                                                       Court, Grayson County, Texas,
No. 05-14-00553-CR         V.                          Trial Court Cause No. 063252.
                                                       Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                           Justices Bridges and Brown participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings consistent with this opinion.


Judgment entered this 1st day of April, 2015.




                                                –13–
