                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00385-CR


THE STATE OF TEXAS                                                 APPELLANT

                                       V.

CORY RAY MOLDER                                                     APPELLEE


                                   ------------

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                   ------------

                                  OPINION
                                   ------------

      In four related points, the State appeals the trial court‘s order granting

appellee Cory Ray Molder‘s motion to suppress evidence that the police found in

his truck. The State contends that officers found the evidence during a legal

inventory. We affirm.

                              Background Facts

      One morning in June 2009, Texas Department of Public Safety (DPS)

Trooper Earl (―Dub‖) Gillum Jr. stopped at a gas station to wash his windshield.
While Trooper Gillum was there, Denisa Rudnicky, a clerk from the station,

walked outside, began talking to Trooper Gillum, and received a call on her cell

phone from appellee. Trooper Gillum heard appellee scream to Rudnicky that he

was going to ―f--- [her] up‖ and ―ram [her] vehicle.‖ Trooper Gillum put the phone

to his ear and said, ―This is Trooper Dub Gillum with the highway patrol.‖

Appellee hung up.

      Trooper Gillum traced the call to a Granbury motel, and he called

appellee‘s room. Trooper Gillum told appellee that he had heard the threats

appellee had made, and Trooper Gillum said that he was going to come to the

motel to talk to appellee. Appellee said that he would leave the motel. Trooper

Gillum called dispatch, and two Granbury Police Department officers went to the

motel to ensure that appellee did not leave.

      When Trooper Gillum arrived at the motel, appellee was outside in a

parking lot between the motel and another building that contained Song Hays

Chinese Restaurant.      An officer gave appellee‘s keys to Trooper Gillum.

Appellee was shirtless and handcuffed.         His eyes were dilated and moving

rapidly as if he was ―high on some type of drug.‖ Trooper Gillum told appellee

that he was under arrest for assault by threat.      Appellee expressed concern

about the motel owner‘s throwing his possessions away, but Trooper Gillum told

appellee that would not happen. One of the officers took appellee to jail.

      Trooper Gillum decided to take an inventory of appellee‘s truck—which

was parked and locked in a private lot near the motel but closer to Song Hays—

                                        2
and then have a wrecker transport the truck to an impound lot.           Two other

troopers brought Trooper Gillum an HQ-109 inventory form, which must be

completed as part of DPS‘s policy, and helped Trooper Gillum inventory the

truck.

         During the inventory, Trooper Gillum found a blue cloth bag that had a

rope around it and smelled like marijuana.       He opened the bag and saw a

cigarette box.     Inside the box, he discovered three clear plastic baggies

containing a crystal white substance that he believed to be methamphetamine.

Also inside the blue cloth bag, Trooper Gillum found another baggie with two

prescription pills, $166, an electronic gram scale, a glass pipe that could be used

to smoke methamphetamine, a metal pipe that contained marijuana residue, a

gas lighter, and approximately thirty empty plastic baggies.1

         A Hood County grand jury indicted appellee for possession of

methamphetamine and possession of methamphetamine with intent to deliver.2

Appellee filed a motion to suppress the evidence found in his truck, arguing that

officers had violated his constitutional and statutory rights by searching the truck

without a warrant or probable cause. He relied on the United States Supreme


         1
      The inventory form also shows that the truck contained valuable items
unassociated with drug use. Officers found an air tank, two chairs, two
hammers, and a cooler in the truck‘s bed. They found ―ammo‖ in a toolbox.
They also found a wallet inside the truck.
         2
      See Tex. Health & Safety Code Ann. §§ 481.102(6), .112(a), .115(a)
(Vernon 2010).

                                         3
Court‘s decision in Arizona v. Gant.3 The trial court held a hearing, at which the

State called Trooper Gillum in an attempt to prove that he had found the

evidence while conducting a lawful inventory. The trial court granted appellee‘s

motion, and the State filed notice of this appeal.4

                        The Suppression of the Evidence

      In four points, the State argues that the trial court erred by granting

appellee‘s motion to suppress. Specifically, the State contends that the court

erred by finding that (1) Trooper Gillum did not conduct the inventory under

DPS‘s general policy, (2) the impoundment of appellee‘s truck was unreasonable

and therefore illegal under federal and state law, and (3) Gant affects the legality

of inventories.

Standard of review

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

bifurcated standard of review.     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).

In reviewing the trial court‘s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the


      3
       129 S. Ct. 1710, 1723 (2009).
      4
       See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2010).

                                          4
weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006).

      Therefore, we give almost total deference to the trial court‘s rulings on

(1) questions of historical fact, even if the trial court‘s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court‘s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court‘s ruling on a motion to

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

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

2006). When the trial court makes explicit fact findings, we determine whether

the evidence, when viewed in the light most favorable to the trial court‘s ruling,

supports those fact findings. Kelly, 204 S.W.3d at 818–19. We then review the

trial court‘s legal ruling de novo unless its explicit fact findings that are supported

by the record are also dispositive of the legal ruling. Id. at 818. We must uphold

                                           5
the trial court‘s ruling if it is supported by the record and correct under any theory

of law applicable to the case even if the trial court gave the wrong reason for its

ruling.     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) (―Our task . . .

is to determine whether the trial court could have reasonably denied appellant‘s

motion to suppress given the record evidence and given the applicable federal

and state law.‖), cert. denied, 541 U.S. 974 (2004).

The legality of Trooper Gillum’s inventory

          The United States and Texas constitutions protect against unreasonable

searches by government officials. U.S. Const. amend. IV; Tex. Const. art. I, § 9.

Once a defendant shows that a search occurred without a warrant, the burden

shifts to the State to prove that the search was reasonable under the totality of

the circumstances. Amador, 221 S.W.3d at 672–73; Torres v. State, 182 S.W.3d

899, 902 (Tex. Crim. App. 2005). Trooper Gillum found the items in appellee‘s

truck without a warrant.

          Thirty-five years ago, the Supreme Court recognized that in some

circumstances, the police‘s standardized, routine inventory of a vehicle may be

reasonable and valid. South Dakota v. Opperman, 428 U.S. 364, 375–76, 96 S.

Ct. 3092, 3100 (1976). Eleven years later, the Supreme Court repeated that

holding. Colorado v. Bertine, 479 U.S. 367, 369, 107 S. Ct. 738, 739–40 (1987);

see also Illinois v. Lafayette, 462 U.S. 640, 643, 103 S. Ct. 2605, 2608 (1983)



                                          6
(explaining that the absence of a warrant in an inventory is immaterial to the

inventory‘s reasonableness).

      In Opperman, the Vermillion, South Dakota police had towed a car to an

impound lot because it was unoccupied and illegally parked. 428 U.S. at 365–

66, 96 S. Ct. at 3095.      At the lot, an officer, using a standardized form,

inventoried the contents of the car, which included looking in an unlocked glove

compartment, and found marijuana.        Id. at 366, 96 S. Ct. at 3095.          After

Opperman came to the lot to claim his property, the police charged him with

possessing marijuana, and he filed a motion to suppress the evidence found

during the inventory. Id. at 366, 96 S. Ct. at 3095–96. The trial court denied his

motion, and a jury convicted him, but the South Dakota Supreme Court reversed

the conviction, holding that the marijuana had been obtained in violation of the

Fourth Amendment. Id. at 366–67, 96 S. Ct. at 3095–96. In reversing the South

Dakota court, the United States Supreme Court stated in part,

            When vehicles are impounded, local police departments
      generally follow a routine practice of securing and inventorying the
      automobiles‘ contents. These procedures developed in response to
      three distinct needs: the protection of the owner‘s property while it
      remains in police custody . . . ; the protection [of] the police against
      claims or disputes over lost or stolen property . . . ; and the
      protection of the police from potential danger . . . . The practice has
      been viewed as essential to respond to incidents of theft or
      vandalism. . . .

            ....

            The Vermillion police were indisputably engaged in a
      caretaking search of a lawfully impounded automobile.
      The inventory was conducted only after the car had been impounded

                                         7
      for multiple parking violations. The owner, having left his car illegally
      parked for an extended period, and thus subject to impoundment,
      was not present to make other arrangements for the safekeeping of
      his belongings. The inventory itself was prompted by the presence
      in plain view of a number of valuables inside the car. . . .

            On this record we conclude that in following standard police
      procedures, prevailing throughout the country and approved by the
      overwhelming majority of courts, the conduct of the police was not
      ―unreasonable‖ under the Fourth Amendment.

Id. at 368–76, 96 S. Ct. at 3097–3100 (citations and footnotes omitted).

      Similarly, in Bertine,

      a police officer in Boulder, Colorado, arrested [Bertine] for driving
      while under the influence of alcohol. After Bertine was taken into
      custody and before the arrival of a tow truck to take Bertine‘s van to
      an impoundment lot, a backup officer inventoried the contents of the
      van. The officer opened a closed backpack in which he found
      controlled substances, cocaine paraphernalia, and a large amount of
      cash. . . .

             The backup officer inventoried the van in accordance with
      local police procedures, which require a detailed inspection and
      inventory of impounded vehicles. He found the backpack directly
      behind the frontseat of the van. Inside the pack, the officer observed
      a nylon bag containing metal canisters. Opening the canisters, the
      officer discovered that they contained cocaine, methaqualone
      tablets, cocaine paraphernalia, and $700 in cash. In an outside
      zippered pouch of the backpack, he also found $210 in cash in a
      sealed envelope. After completing the inventory of the van, the
      officer had the van towed to an impound lot and brought the
      backpack, money, and contraband to the police station.

            After Bertine was charged with [various offenses], he moved
      to suppress the evidence found during the inventory search on the
      ground, inter alia, that the search of the closed backpack and
      containers exceeded the permissible scope of such a search under
      the Fourth Amendment.[5]

      5
      In the Supreme Court‘s opinion, it noted that the Colorado trial court had
found that the ―standard procedures for impounding vehicles mandated a
                                         8
479 U.S. at 368–69, 107 S. Ct. at 739–40. The Supreme Court held that the

inventory was lawful, reasoning,

      [I]nventory searches are now a well-defined exception to the warrant
      requirement of the Fourth Amendment. The policies behind the
      warrant requirement are not implicated in an inventory search, . . .
      nor is the related concept of probable cause . . . .

            ....

             In the present case, as in Opperman and Lafayette, there was
      no showing that the police, who were following standardized
      procedures, acted in bad faith or for the sole purpose of
      investigation. In addition, the governmental interests justifying the
      inventory searches in Opperman and Lafayette are nearly the same
      as those which obtain here. In each case, the police were
      potentially responsible for the property taken into their custody.
      By securing the property, the police protected the property from
      unauthorized interference. . . .

            ....

             . . . We conclude that . . . reasonable police regulations
      relating to inventory procedures administered in good faith satisfy
      the Fourth Amendment . . . .

Id. at 371–74, 107 S. Ct. at 741–42 (citations and footnotes omitted); see also

Jurdi v. State, 980 S.W.2d 904, 906, 908 (Tex. App.—Fort Worth 1998, pet. ref‘d)

(relying on Bertine to overrule a defendant‘s challenge to the denial of his motion

to suppress evidence found during an inventory of a car); Starlling v. State, 743

S.W.2d 767, 772 (Tex. App.—Fort Worth 1988, pet. ref‘d) (citing Opperman to

hold that evidence obtained during an inventory was admissible).



‗detailed inventory involving the opening of containers and the listing of [their]
contents.‘‖ Bertine, 479 U.S. at 370, 107 S. Ct. at 740 (emphasis added).

                                        9
      The trial court recognized the existence of the inventory exception to the

warrant requirement but held that it is not applicable to this case. To support that

decision, the court concluded that Trooper Gillum‘s inventory was not authorized

because, in sum,

      it was not conducted according to DPS‘s general policy because DPS did
      not have possession of the truck or an obligation to protect it or its
      contents;

      it was not reasonable under federal and state law because the truck was
      not in DPS‘s possession, it was not creating a traffic hazard, it was parked
      and locked, and there were reasonable alternatives to impoundment
      because (1) appellee‘s confinement was expected to be short, and the
      truck would have been protected by leaving it parked and locked; and (2)
      appellee‘s family was at the arrest site;6 and

      Gant affects the validity of an inventory that would otherwise be authorized
      by Bertine.

The State‘s four points essentially attack these conclusions.        We need not

address any of these reasons for suppression, however, because we conclude

that the trial court‘s decision must be affirmed on a different, more specific legal

basis. See Armendariz, 123 S.W.3d at 404.

      In appellee‘s brief, he argues,

            It is noteworthy that [Trooper] Gillum had to pass through two
      closed containers during his inventory search before he arrived at
      several clear baggies of meth. The first closed container was a blue
      bag with a white rope around it. The second container was a
      cigarette box. There was no testimony developed by the State as to
      what the standard criteria was for the search policy regarding
      containers, and closed containers. Part of the reasonableness of an

      6
       However, according to Trooper Gillum, appellee‘s father arrived after the
inventory occurred while the ―wrecker was . . . hooking up to the truck.‖

                                        10
         inventory search derives from its standard and clearly defined
         manner.

         After it decided Opperman and Bertine, the Supreme Court readdressed

inventories in Florida v. Wells. 495 U.S. 1, 4, 110 S. Ct. 1632, 1635 (1990). In

Wells,

                 A Florida Highway Patrol trooper stopped respondent Wells
         for speeding. After smelling alcohol on Wells‘ breath, the trooper
         arrested Wells for driving under the influence. Wells then agreed to
         accompany the trooper to the station to take a breathalyzer test.
         The trooper informed Wells that the car would be impounded and
         obtained Wells‘ permission to open the trunk. At the impoundment
         facility, an inventory search of the car turned up two marijuana
         cigarette butts in an ashtray and a locked suitcase in the trunk.
         Under the trooper‘s direction, employees of the facility forced open
         the suitcase and discovered a garbage bag containing a
         considerable amount of marijuana.

                Wells was charged with possession of a controlled substance.
         His motion to suppress the marijuana on the ground that it was
         seized in violation of the Fourth Amendment to the United States
         Constitution was denied by the trial court. . . . On appeal, the Florida
         District Court of Appeal . . . held . . . that the trial court erred in
         denying suppression of the marijuana found in the suitcase. Over a
         dissent, the Supreme Court of Florida affirmed.

Id. at 2–3, 110 S. Ct. at 1634. The United States Supreme Court affirmed the

suppression of the marijuana that was found in the closed suitcase, reasoning,

                Our view that standardized criteria . . . or established routine
         . . . must regulate the opening of containers found during inventory
         searches is based on the principle that an inventory search must not
         be a ruse for a general rummaging in order to discover incriminating
         evidence. The policy or practice governing inventory searches
         should be designed to produce an inventory. 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[.]‖


                                           11
            ....

            In the present case, the Supreme Court of Florida found that
      the Florida Highway Patrol had no policy whatever with respect to
      the opening of closed containers encountered during an inventory
      search. We hold that absent such a policy, the instant search was
      not sufficiently regulated to satisfy the Fourth Amendment and that
      the marijuana which was found in the suitcase, therefore, was
      properly suppressed by the Supreme Court of Florida.

Id. at 4–5, 110 S. Ct. at 1635 (citations omitted and emphasis added).

Thus, opening closed containers while conducting an inventory is lawful only

when there is evidence of a policy or established procedure that allows for such.

See id.; Rothenberg v. State, 176 S.W.3d 53, 57 (Tex. App.—Houston [1st Dist.]

2004, pet. ref‘d) (―[T]he Fourth Amendment . . . allows police to open closed—

even locked—containers as part of the inventory of an automobile, as long as

they do so in accordance with standardized police procedures‖); Richards v.

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

banc) (stating that either ―standardized criteria or established routine must

regulate the opening of closed containers during an inventory search‖ and

upholding a search because an officer testified that he was trained to inventory

any container he had access to); see also United States v. Salmon, 944 F.2d

1106, 1121 (3d Cir. 1991) (citing Wells and holding that based on ―the lack of

evidence of any criteria or established routine regarding the scope of an

inventory search, we conclude that the searching officers had impermissible

discretion regarding the . . . treatment of closed containers‖), cert. denied, 502

U.S. 1110 (1992); cf. Perry v. State, 933 S.W.2d 249, 252–53 (Tex. App.—

                                       12
Corpus Christi 1996, pet. ref‘d) (distinguishing the holding in Wells and holding

that an inventory of an ashtray was permissible because it was not a closed

container); 1975 Chevrolet v. State, 801 S.W.2d 565, 566–67 (Tex. App.—Dallas

1990, writ denied) (upholding the inventory of a closed container because the

police department‘s policy was to open locked containers if the police had access

to the keys of the container).

      The burden is on the State to show a lawful inventory. State v. Giles, 867

S.W.2d 105, 108 (Tex. App.—El Paso 1993, pet. ref‘d). Here, the State did not

provide the trial court with a written inventory policy.7 Instead, the sole evidence

of DPS‘s inventory policy came from testimony by Trooper Gillum when the State

asked him the following questions:

            Q . . . Let me ask you, does the Department of Public Safety
      have prescribed procedures for an arrest and when there‘s a vehicle
      involved and . . . people‘s property?

            A Yes, ma‘am. It‘s our policy that the arresting officer take
      control and secure that property in the safest way possible.

             Q Okay.

              A That property is now my responsibility as the arresting
      officer, so I have to take care of that property and do it through
      policy with an inventory and a written inventory and witnesses and
      filing of that inventory.

      7
        The trial court admitted DPS‘s property inventory form, which contained
the results of the particular inventory in this case but did not contain any
statement about DPS‘s policy. The general legality of an inventory is not
contingent on whether the inventory policy is written. See United States v.
Skillern, 947 F.2d 1268, 1275 (5th Cir. 1991), cert. denied, 503 U.S. 949 (1992);
Richards, 150 S.W.3d at 771.

                                        13
            ....

            Q Did you feel safe in leaving his vehicle there?

             A No, ma‘am, I didn‘t. I didn‘t know what was in the vehicle,
      so I inventoried it and then called the wrecker to store it in a safe,
      secure place.[8]

      Trooper Gillum‘s concise testimony establishes that DPS has a general

policy to inventory vehicles associated with defendants‘ arrests, but the testimony

relates nothing about the scope of the policy or how it affects closed containers

such as appellee‘s roped blue bag. DPS‘s actual inventory policy may require

opening all containers or some containers under specific circumstances, but

those details were not proved in this case.

      We recognize that courts have held that an officer does not need to

specifically mention ―closed containers‖ to establish a policy regarding them.

See, e.g., United States v. Mundy, 621 F.3d 283, 290–93 (3d Cir. 2010)

(explaining that ―[s]tandardized criteria or routine may adequately regulate the

opening of closed containers discovered during inventory searches without using

the words ‗closed container‘ or other equivalent terms‖ and holding that a policy

had sufficiently described the scope of an inventory to allow the opening of a

shoebox). But we hold that in this case, Trooper Hall‘s testimony, as the sole

evidence at the suppression hearing, was too barren to show any particular



      8
       Trooper Hall also testified about some exceptions to requiring an
inventory, but he did not give details about DPS‘s procedures when those
exceptions do not apply and an inventory therefore proceeds.

                                        14
standardized criteria or routine concerning the scope of the inventory; the

testimony is therefore insufficient for us to infer the extent of DPS‘s policy

regarding closed containers.    Also, we conclude that we cannot infer DPS‘s

policy to open closed containers from the mere fact that Trooper Hall did so; such

an inference would eviscerate the requirement described in Wells.

      Because the evidence at issue was found within a closed container, and

the State did not meet its burden to show the legality of the inventory of that

container, we hold that the trial court did not err by granting appellee‘s motion to

suppress, and we overrule all of the State‘s points that contest, on other grounds,

the trial court‘s suppression decision. See Wells, 495 U.S. at 4–5, 110 S. Ct. at

1635; Armendariz, 123 S.W.3d at 404.

                                   Conclusion

      Having overruled all of the State‘s points, we affirm the trial court‘s order

granting appellee‘s motion to suppress.



                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

MEIER, J. filed a concurring opinion.

PUBLISH

DELIVERED: February 24, 2011




                                          15
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00385-CR


THE STATE OF TEXAS                                                    APPELLANT

                                        V.

CORY RAY MOLDER                                                             STATE


                                     ----------

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                     ----------

                          CONCURRING OPINION
                                     ----------

      I concur in the result reached by the majority opinion, but I write separately

to voice my belief that the trial court‘s ruling to suppress the evidence found

during the inventory of Molder‘s truck was correct for the additional reason that

the truck should not have been impounded in the first place. The majority holds

that because the State did not offer evidence of any particular standardized

criteria concerning the scope of inventory searches that would lead to a

conclusion regarding DPS‘s policy as to opening closed containers, the State
failed to meet its burden to show the legality of the inventory of a closed

container found in Molder‘s vehicle. I join in the majority‘s analysis and ruling

concerning closed containers under the facts of this case.

      I write separately, however, to express my view and opinion that

regardless of what DPS‘s policy is toward closed containers, an inventory of

Molder‘s vehicle should have never occurred. And that is what the trial court

specifically found.

      An inventory search is permissible under the federal and state

constitutions if it is conducted pursuant to a lawful impoundment. South Dakota

v. Opperman, 428 U.S. 364, 375–76, 96 S. Ct. 3092, 3100 (1976); Benavides v.

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

impoundment to be lawful, the seizure of the vehicle must be reasonable under

the Fourth Amendment. Benavides, 600 S.W.2d at 811. Courts have identified a

number of circumstances in which law enforcement may reasonably impound an

automobile; principal among these circumstances is whether there is some

reasonable connection between the arrest and the vehicle. Id.; Delgado v. State,

718 S.W.2d 718, 721 (Tex. Crim. App. 1986); Daniels v. State, 600 S.W.2d 813,

815 (Tex. Crim. App. [Panel Op.] 1980). But to be sure, an inventory cannot

simply be a ―ruse for a general rummaging in order to discover incriminating

evidence.‖ Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 1635 (1990).

      According to the trial court‘s findings of facts, Molder‘s truck was parked

and locked approximately 175 feet from Molder‘s hotel room in front of a nearby

                                        2
business—as the trial court phrased it, ―a private parking lot and not the street.‖

Molder‘s truck faced the street, but otherwise was not impeding the flow of traffic

nor was it a danger to public safety. The trial court found that the distance

between where Molder was detained and eventually arrested was approximately

100 feet from his truck. The trial court further found that there was no reasonable

connection between the arrest and Molder‘s truck; that Molder had not consented

to the search of his truck; that the truck was not blocking traffic; that no exigent

circumstances existed to authorize the search of Molder‘s truck; and that there

was ―no likely evidence of ‗assault by threat‘ to be found‖ in the truck and that

there was no evidence that ―Molder‘s truck had been used in the commission of

this or any other crimes.‖ Furthermore, the trial court determined that Molder

―was not in the proximity of his truck such that he could gain access to the

passenger compartment.‖ Regarding its legal determination of whether a valid

inventory of Molder‘s truck occurred, the trial court specifically concluded that as

a matter of law Molder‘s truck ―never validly came into the possession or

responsibility of the DPS and therefore should not have been impounded.‖

      This conclusion by the trial court regarding the impoundment and inventory

of Molder‘s truck is supported by the court of criminal appeals‘s decision in

Benavides.    600 S.W.2d at 810.       In Benavides, the police discovered the

defendant and his wife in their home; both had been shot, and the defendant‘s

wife was dead. Id. The police discovered the type of car the defendant drove

and began looking for it. The car was found locked and legally parked about two

                                         3
blocks away from where the defendant and his wife were found. The police

impounded the car for ―protective custody‖ and ―safekeeping.‖ Before towing the

car, the police inventoried its contents and discovered a suicide note

incriminating the defendant. Id. at 810–11.

      The court of criminal appeals held the car was unlawfully impounded

because (1) there was no evidence that the car was impeding the flow of traffic or

a danger to public safety; (2) the vehicle was legally parked in a residential area

and locked; (3) while the appellant may not have been able to retrieve the car,

there may have been someone else who could have done so for him, and (4)

there was no reasonable connection between the arrest and the vehicle. Id. at

812. In so holding, the court stated, ―The mere arrest of a defendant cannot be

construed to authorize the seizure of his automobile when the arrest took place

two or more blocks away from the automobile.‖ Id.1

      This case is similar to Benavides.      Molder was detained and arrested

approximately 100 feet from his truck. His truck was legally parked. The trial

court specifically found that there was no evidence Molder‘s truck was impeding

the flow of traffic.   The trial court, which listened to the arresting officer‘s

testimony and reviewed the photographs depicting where Molder was in

      1
        The rule in Benavides that the mere arrest of a defendant cannot be
construed to authorize the search of his automobile has been expanded by some
courts to encompass those situations where there is a reasonable connection
between the crime of arrest and the vehicle. Lagaite v. State, 995 S.W.2d 860,
865 (Tex. App.—Houston [1st Dist.] 1999, pet. ref‘d). The trial court in this case
specifically found there was no reasonable connection between the crime for
which Molder was arrested and his truck.
                                        4
relationship to his truck when he was arrested, found that there was no

reasonable connection between Molder‘s arrest and his truck. I conclude that

there is no reasonable distinction that the distance in Benavides was two blocks

and in this case approximately 100 feet. The gravamen of Benavides, like in this

case, is that the defendant‘s mere arrest does not automatically give the State

the authority to conduct an inventory. Id. I would hold that the mere arrest of

Molder did not authorize the seizure of his truck and that, given the record

evidence and the applicable federal and state law, the trial court could have

reasonably granted Molder‘s motion to suppress upon this additional ground.

See Armendariz v. State, 123 S.W.3d 401, 403 (Tex. Crim. App. 2003) (We must

―uphold the trial court‘s ruling on appellant's motion to suppress if that ruling was

supported by the record and was correct under any theory of law applicable to

the case.‖), cert. denied, 541 U.S. 974 (2004). Because I would affirm the trial

court‘s judgment granting the motion to suppress on this basis, I concur with the

majority‘s opinion.




                                                    BILL MEIER
                                                    JUSTICE

PUBLISH

DELIVERED: February 24, 2011




                                         5
