                                                                     ACCEPTED
                                                                 12-15-00055-CR
                                                    TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                           9/18/2015 10:44:46 AM
                                                                       Pam Estes
                                                                          CLERK

      CAUSE NO. 12-15-00055-CR

                  IN THE                       RECEIVED IN
                                         12th COURT OF APPEALS
                                              TYLER, TEXAS
 THE 12th DISTRICT COURT OF      APPEALS 9/18/2015 10:44:46 AM
                                                PAM ESTES
                                                  Clerk
                FOR THE

            STATE OF TEXAS
                                                 9/18/2015

            JORGE ZEPEDA,

                         APPELLANT
                    V.

         THE STATE OF TEXAS,

                         APPELLEE


STATE’S REPLY TO APPELLANT’S BRIEF


          D. MATT BINGHAM
         Criminal District Attorney
           Smith County, Texas

            MICHAEL J. WEST
    Assistant Crimina1 District Attorney
        State Bar I.D. No. 21203300
         Smith County Courthouse
              100 N. Broadway
             Tyler, Texas 75702
            ph: (903) 590-1720
            fax: (903) 590-1719
         mwest@smith-county.com

     ORAL ARGUMENT NOT REQUESTED
                                            TABLE OF CONTENTS

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          iii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REPLY TO APPELLANT’S POINTS OF ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    2

COUNTERPOINT ONE: The Trial Court correctly overruled
Appellant’s motion to suppress where the record shows that the
officer involved fully followed the vehicle impound and inventory
policies of the Tyler Police Department . . . . . . . . . . . . . . . . . . . . . . . . . .                     2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               20

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21




                                                            ii
                                           INDEX OF AUTHORITIES
STATUTE/RULES                                                                                                    P AGE

TEX. TRANSP. CODE (Vernon 2014)

§ 545.104 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    7

TEX. R. EVID.

Rule 104 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   6

F EDERAL CASES                                                                                                   P AGE

Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738,
93 L.Ed.2d 739 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          3, 4

Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632,
109 L.Ed. 2d 1 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          4

STATE CASES                                                                                                      P AGE

Benavides v. State, 600 S.W.2d 809
(Tex.Crim.App. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           4

Brimage v. State, 918 S.W.2d 466
(Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         6

Brown v. State, 6 S.W.3d 571
(Tex.App. - Tyler 1999, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              17

Delgado v. State, 718 S.W.2d 718
(Tex.Crim.App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           4

DuBose v. State, 915 S.W.2d 493
(Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         6




                                                            iii
STATE CASES (CONT)                                                                                         P AGE

Garza v. State, 137 S.W.3d 878
(Tex.App. - Houston [1st Dist.] 2004, pet. ref'd) . . . . . . . . . . . . . . . . . . . . .                4, 14

Greer v. State, 436 S.W.3d 1
(Tex.App. - Waco 2014, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          14, 15

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

Mayberry v. State, 830 S.W.2d 176
(Tex.App. - Dallas 1992, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         13, 15

McVickers v. State, 874 S.W.2d 662
(Tex.Crim.App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     7

Moberg v. State, 810 S.W.2d 190
(Tex.Crim.App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     5, 13

Moulden v. State, 576 S.W.2d 817
(Tex.Crim.App. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     9

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

Oles v. State, 993 S.W.2d 103
(Tex.Crim.App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     5

State v. Carter, 915 S.W.2d 501
(Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     6, 19

Richards v. State, 150 S.W.3d 762
(Tex.App. - Houston [14th Dist.] 2004, pet. ref'd) . . . . . . . . . . . . . . . . . . . .                 4

Rippy v. State, 53 S.W.2d 619
(Tex.Crim.App. 1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   18

                                                         iv
STATE CASES (CONT)                                                                                         P AGE

Roberts v. State, 444 S.W.3d 770
(Tex. App. - Fort Worth 2014, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . .              5

State v. Mercado, 972 S.W.2d 75
(Tex.Crim.App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   17

Stephen v. State, 677 S.W.2d 42
(Tex.Crim.App. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   15

Trujillo v. State, 952 S.W.2d 879
(Tex.App. - Dallas 1997, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        3

Uballe v. State, 439 S.W.3d 380
(Tex. App. - Amarillo 2014, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          4

Willis v. State, 192 S.W.2d 585
(Tex.App. - Tyler 2006, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          5

Villarreal v. State, 935 S.W.2d 134
(Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   5




                                                         v
                           CAUSE NO. 12-15-00055-CR

                                      IN THE

                   THE 12th DISTRICT COURT OF APPEALS

                                     FOR THE

                                STATE OF TEXAS


                                 JORGE ZEPEDA,

                                              APPELLANT
                                         V.

                             THE STATE OF TEXAS,

                                              APPELLEE


                 STATE’S REPLY TO APPELLANT’S BRIEF


TO THE HONORABLE COURT OF APPEALS:

      Comes now the State of Texas, through the undersigned Assistant Criminal

District Attorney, and respectfully urges this Court to overrule Appellant’s alleged

errors and affirm the judgment of the trial court in the above-numbered cause.

                             STATEMENT OF THE CASE

      Appellant, Jorge Zepeda, was charged by information in Cause No. 002-82159-

14, in the County Court at Law #2 of Smith County, Texas, with the offense of

                                          1
Possession of a Marijuana. On February 11, 2015, the parties met in court, Appellant

with counsel, and after being fully admonished according to the law, Appellant

entered a negotiated plea of "Guilty" to the offense alleged by the information. (RR

2: 5). After hearing evidence, the Court imposed the agreed sentence sentence of two

years deferred adjudication probation and a $100 fine. (RR 2: 7).

      Appellant gave timely notice of appeal and a brief has been filed with the

Court. The State's response brief will be timely filed if the Court grants the attached

motion for extension.

                               STATEMENT OF F ACTS

      Appellant has stated the essential nature of the evidence presented at the

hearing on his motion to suppress. In the interest of judicial economy any other facts

not mentioned herein that may be relevant to disposition of Appellant's point of error

will be discussed in the State's arguments in response to that point.

     REPLY TO APPELLANT’S P OINTS OF ERROR AND SUMMARY OF ARGUMENT

COUNTERPOINT O NE : The Trial Court correctly overruled Appellant’s motion
to suppress where the record shows that the officer involved fully followed the
vehicle impound and inventory policies of the Tyler Police Department.

A.    Summary of Argument

      Police discovered two baggies of marijuana in Appellant's vehicle during an

inventory search after impounding the vehicle. (RR 2: 5-6). Appellant argues that the

                                           2
trial court incorrectly denied his motion to suppress evidence where the officer

involved failed to fully follow the allegedly inconsistent vehicle impound policy of

the Tyler Police Department (hereinafter "TPD") after stopping Appellant for a traffic

violation and discovering that he was an excluded driver on the vehicle's insurance

policy. (RR 1: 8-11). However, the record shows that the officer fully complied with

the mandatory and discretionary portions of the TDP policies.

B.    Vehicle Inventory is an Exception to the Warrant Requirement

      Valid vehicle inventory searches are an exception to the Fourth Amendment's

warrant requirement. Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 93 L.

Ed. 2d 739 (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; see also 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.).

      Inventory 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,

                                           3
and 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, 110 S.Ct. 1632, 109 L.Ed. 2d 1 (1990); see also Richards v. State, 150

S.W.3d 762, 771 (Tex.App. - Houston [14th Dist.] 2004, pet. ref'd). "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 law further provides that 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; see also Benavides v. State, 600 S.W.2d 809, 810 (Tex.Crim.App.

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; see also Garza v. State, 137 S.W.3d 878, 882 (Tex.App. -

Houston [1st Dist.] 2004, pet. ref'd).

                                          4
       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.

C.     The Standard of Review

       A trial court’s denial of a motion to suppress is generally reviewed for abuse

of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999); Willis v.

State, 192 S.W.2d 585, 590 (Tex.App. - Tyler 2006, pet. ref’d), citing Villarreal v.

State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996).

       In reviewing a trial court’s ruling on a motion to suppress, appellate courts

must give great deference to the trial court’s findings of historical fact as long as the

record supports the findings. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.

1997). This Court should afford the same amount of deference to the trial court’s

rulings on “mixed questions of law and fact” if the resolution of those ultimate

questions turns on an evaluation of witness credibility and demeanor. Id. Appellate

courts must view the record in the light most favorable to the trial court’s ruling and

sustain the trial court’s ruling if it is reasonably correct on any theory of law

                                            5
applicable to the case. Id. The Court of Criminal Appeals has decided that it is

improper for an appellate court to weigh the factual sufficiency of the evidence

elicited at the suppression hearing because the trial judge is the sole and exclusive

trier of fact and judge of the credibility of the witnesses, as well as the weight to be

given their testimony. DuBose v. State, 915 S.W.2d 493, 496 (Tex.Crim.App. 1996).

      Additionally, the trial judge is also the initial arbiter of the legal significance

of those facts. Id.; TEX. R. EVID. 104 (a). On appeal, the Court should limit its review

of the trial court’s rulings, both as to the facts and the legal significance of those

facts, to a determination of whether the trial court has abused its discretion. Id. The

Court of Criminal Appeals has specifically instructed appellate courts to give

deference to the trial court’s ruling with regard to a motion to suppress. State v.

Carter, 915 S.W.2d 501, 504 (Tex.Crim.App. 1996). Even if this Court would have

reached a different result on the issue of suppression, as long as the trial court’s

rulings are at least within the “zone of reasonable disagreement,” the Court should not

intercede. Id. at 496-97. The Fourth Amendment and the Texas Constitution forbids

only unreasonable searches and seizures. U.S. CONST. amend. IV; TEX. CONST. art.

I, § 9; Brimage v. State, 918 S.W.2d 466, 500 (Tex.Crim.App. 1996).




                                           6
D.    Application of the Law to the Facts.

      Appellant complains that the trial court abused its discretion in denying his

motion to suppress. First, because the officer involved did not fully follow TPD

impoundment policy. (Appellant's brief at 23-29). Secondly, because that policy itself

is not reasonable where it is "inconsistent as to what actions are required in the

decision-making process" where "some portions of the policy indicate that vehicles

'shall' be towed while other portions say that there are mitigating circumstances when

towing should not occur." Id. at 15.

      The State called a single witness to testify at the motion to suppress hearing.

Tyler Police Officer Charles Boyce testified that he pulled Appellant over for failing

to "signal the required distance." (RR 1: 8). See TEX. TRANSP. CODE § 545.104 (b)

(Vernon 2014). Prior to the start of testimony, Appellant specifically told the trial

court that he was "not contesting the reason for the traffic stop." (RR 1: 5). The law

provides that an officer may lawfully stop and detain a person for a traffic violation.

McVickers v. State, 874 S.W.2d 662, 664 (Tex.Crim.App. 1993).

      After stopping Appellant, the officer testified that he could smell the "aroma

of marijuana" although he did not document that in his report. (RR 1: 8). When asked

for proof of insurance on the vehicle he was operating, Appellant produced an

insurance card which indicated on its face that he was an "excluded driver" on the

                                           7
insurance policy. (RR 1: 8-9). This raised "red flags" for the officer and he requested

through dispatch a search of Appellant's driving history. (RR 1: 9). He was alerted by

dispatch that Appellant had prior convictions for "DWLI" (Driving Without a

License) and "FMFR" (Failure to Maintain Financial Responsibility). Id. The

conviction for "FMFR" was due to operating a vehicle without it being insured. Id.

      As a result of this driving history, Officer Boyce told the Court that he decided

that "I was going to tow the vehicle per our policy." (RR 1: 10). According to the

"Tyler Police Department policy for impoundment" subsection D:

      D.     If the driver's license check return indicates that the driver does
             not possess a driver's license or the license is suspended for not
             having insurance and the driver is unable to show proof of
             financial responsibility on the vehicle being operated, the officer
             shall impound the vehicle. No prior conviction for failing to
             maintain financial responsibility is necessary when the driver
             does not possess a driver's license. prior to impounding a vehicle
             under this policy, the officer shall comply with the same
             requirements as listed in requirements in subsections B through
             F as listed under "Accidents" in the policy. (emphasis supplied).

                                     (RR 1: 10; see also State's Exhibit 1, p.1).

      According to Officer Boyce, an insurance card which specifically lists a person

as an "excluded driver" means that "there is no insurance on the vehicle when they

are operating the vehicle." (RR 1: 11). It was also his believe that if he let Appellant

to continue to drive the vehicle and an accident occurred, "[t]hey could come back



                                           8
and sue the department plus sue me." (RR 1: 11). Officer Boyce further testified that

in his opinion he was mandated by departmental policy to tow Appellant's vehicle

under subsection C as well which provides:

      C.       If the officer, either through a driver's license check or through
               personal contacts, determines that the driver has been previously
               convicted for operating a motor vehicle with no financial
               responsibility, the officer shall impound the vehicle. Before the
               officer impounds a vehicle under this policy, the officer shall
               comply with the requirements in Subsections B - F under
               "Accidents" in the policy. (emphasis supplied).

                                                       (RR 1: State's Exhibit 1, p.1).

      It was Officer Boyce's belief that the smell of marijuana in the vehicle gave him

probable cause to search it without a warrant. (RR 1: 13). This belief has long been

supported by the law. See, e.g. Moulden v. State, 576 S.W.2d 817, 818-20

(Tex.Crim.App. 1978) (police officers who stopped motorist and smelled odor of

burnt marihuana coming from inside car had probable cause to search car).

Nevertheless, the officer decided to impound the vehicle and conduct an inventory

instead. (RR 1: 13). He then conducted an inventory of the vehicle pursuant to TPD

inventory policy which uncovered the marijuana in an ash tray. (RR 1: 13-14).1

      A video of the stop and Officer Boyce's actions during it was played for the

trial court. (RR 1: 15). On the video, the officer is apparently heard asking Appellant

      1
          Appellant has not attacked the TPD inventory policy on any grounds.

                                                9
when was the last time he had smoked marijuana in the vehicle. (RR 1: 15). He asked

Appellant several other questions about marijuana to "buy[] time until my back up got

there." (RR 1:16).

      On cross-examination, it was noted that, although Officer Boyce asked

Appellant questions on the video about marijuana, he did not specifically tell

Appellant that he smelled marijuana, and he also did not mention the smell in his

report. (RR 1: 17). The officer explained that he did not search pursuant to the smell

of marijuana because "I couldn't do that without my backup." (RR 1: 17). He also

noted that the smell of marijuana "could have been there from days ago." (RR 1: 18,

21). He did not note in his report that he smelled marijuana in Appellant's vehicle

because "I dropped the ball." (RR 1: 19).

      Officer Boyce stated that he believed that Appellant's father, Mr. Juan Zepeda,

was covered by insurance for the vehicle Appellant was driving. (RR 1: 24). He did

not contact Appellant's father before towing the vehicle because his father had

already allowed Appellant to drive the vehicle. (RR 1: 24). Officer Boyce was of the

opinion that there were no mitigating circumstances under the TPD impoundment

policy which prohibited him from having the vehicle impounded. (RR 1: 25). He

testified that the TPD policy requires that an officer should "consider" mitigating

circumstances, but he maintained that he did not feel there were any existing. (RR

                                            10
1: 26). He did not take Appellant's phone, but left it in the vehicle where it could not

be used because he was not letting Appellant get back into the vehicle for reasons of

officer safety. (RR 1: 26-27). He would not have let Appellant call to have his father

come because "his father had allowed an unlicensed driver to operate a motor vehicle

with insurance that has him as an excluded driver." (RR 1: 28).

      On re-direct it was finally established that, in addition to being an excluded

driver and having a prior FMFR conviction, Appellant's driver's license was also

suspended at the time of the stop. (RR 1: 33). This meant that TPD policy mandated

towing under both subsections C and D cited above. (RR 1: 33). Officer Boyce stated

that he did, as required by TPD policy, consider possible mitigating circumstances but

felt that none existed. (RR 1: 34). Had he not discovered the marijuana during the

inventory, Officer Boyce would have ensured that Appellant had a way to get home,

or would have given him a ride. (RR 1: 34).

      After a somewhat redundant round of re-cross and re-direct, the State rested it's

case. (RR 1: 40). Appellant then called Mr. Juan Zepeda, his father, to verify that the

vehicle was insured and that he owned it. (RR 1: 41). He had thought that Appellant

was covered on his policy, but an insurance company representative later informed

him that he was not. (RR 1: 42). He also testified that the no-insurance ticket issued

to Appellant by Officer Boyce was subsequently dismissed in city court because

                                           11
Appellant was told he didn't have to pay because he was insured. (RR 1: 42). He also

testified that he was home and available to pickup the vehicle at the time Appellant

was arrested. (RR 1: 42). On cross-examination, Mr. Zepeda agreed that Appellant

was an excluded driver on his insurance policy when he was stopped by Officer

Boyce. (RR 1: 45). After Mr. Zepeda was excused from the stand, both sides rested

and closed. (RR 1: 45).

      Regarding mitigating circumstances, the TDP policy on "Impoundment for

Failure to Maintain Financial Responsibility" provides that:

      B.     Impoundment should generally be restricted to those cases where
             the driver admits to not having financial responsibility or the
             officer is able to verify that no coverage exists.

                                                 (RR 1: State's Exhibit 1, p. 2).

      The same policy states on its face that there are seven mitigating circumstances

that officers "should" consider before impounding a vehicle: (1) Time of day; (2)

Location; (3) Ability of operator to safely leave location; (4) Availability of other

units to assist with the safe removal of other occupants; (5) Call demand; (6) Weather

conditions; and (7) Lighting. (RR 1: State's Exhibit 1, p. 2).

      Of these seven, it is submitted that only the first three have any relation to the

offense in this case. Officer Boyce admitted that he considered these. The first two

would have been considered in his decision to not allow Mr. Juan Zepeda to be called

                                          12
when the officer decided that "his father had allowed an unlicensed driver to operate

a motor vehicle with insurance that has him as an excluded driver." (RR 1: 28). The

third circumstance, "Ability of operator to safely leave location" was obviously not

a concern once Appellant was arrested after the marijuana was found in his car.

Nevertheless, Officer Boyce testified that he otherwise would have made sure that

Appellant had a ride home after the vehicle was towed or he would have given him

a ride. (RR 1: 34, 36).

1.    Officer Boyce followed TPD Policy

      Appellant argues that Officer Boyce failed to follow TPD policy essentially by

not contacting his father to come and take the vehicle. (Appellant's brief at 24-26).

However, nowhere in the TPD policy does it state that the officer must first call a

relative to come and get the vehicle before it can be impounded.

      More importantly, the same policy mandated for two separate reasons that "the

officer shall impound the vehicle." (RR 1: State's Exhibit 1, p.1 subsections C & D).

Similarly, Officer Boyce complied with TPD policy by "considering" possible

mitigating circumstances. (RR 1: State's Exhibit 1, p. 2 section 07.506 (A)). Officer

Boyce's testimony is sufficient to show that an inventory search policy existed and

that the policy was followed. See Mayberry v. State, 830 S.W.2d 176, 181 (Tex.App. -

Dallas 1992, pet. ref'd) citing Moberg, 810 S.W.2d at 13.

                                         13
      The trial court in denying the motion to suppress did state, "It's clear the officer

didn't consider any mitigating circumstances . . ." (RR 1: 52). However, that finding

is obviously inconsistent with Officer Boyce's repeated testimony that he did in fact

consider the possibility of mitigating circumstances, but he did not believe that any

existed. (RR 1: 25, 28, 34, 36-39).

      Appellant refers the Court to Garza v. State, supra wherein the Court set out

the State's burden to show a lawful impoundment. That Court held that the State may

satisfy its burden on a lawful impoundment by showing: (1) the driver was arrested,

(2) no alternatives other than impoundment were available to insure the automobile's

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

followed. Id. at 882. Each of these elements are present in this case and most are

found in the testimony of Officer Boyce.

(i)   The driver was arrested.

      First, the record shows that Appellant, the driver of the vehicle, was arrested

for possession of the marijuana that was discovered. (RR 1: 4). The State must

concede that Appellant was not arrested until after the inventory search had begun.

      However, probable cause existed to arrest Appellant from moment it was

discovered that he was driving with a suspended license and without insurance. The

undersigned was unable to find any authority ruling on a similar factual situation

                                           14
which indicates whether the timing of the arrest is fatal in an impoundment review.

Appellant has provided no authority which stands for the proposition that it is.

      More importantly, once Officer Boyce was aware that Appellant's license was

suspended and that Appellant was excluded from the insurance policy covering the

vehicle, he was obviously unable to legally let Appellant drive the vehicle away from

the scene. Appellant was already twice in violation of the law by driving in the first

place. And, the officer was specifically aware of the potential civil liability to TPD

if Appellant subsequently damaged anyone should he be let go in the vehicle. (RR 1:

11). This very situation appears to have been contemplated by the TPD impoundment

policy which makes it mandatory for an officer to impound a vehicle under such

circumstances without any mention of an arrest being made. (RR 1: 10; see also

State's Exhibit 1, p.1 subsection D).

      Consequently, where the driver cannot be legally allowed to drive a vehicle due

to a discovered lack of a license and/or insurance, the State suggests that the arrest

element has in essence been met. There is seemingly little or no substantial difference

between whether the driver is under arrest or is otherwise unable to legally operate

a motor vehicle - he is equally precluded from driving the vehicle away from where

it was stopped under either scenario. And, regardless of the driver's status, both

situations can still meet the other required elements of a lawful impoundment.

                                          15
        Thus, it is submitted that the facts of this case are akin to situations where a

driver is arrested and no other occupant of the vehicle has a valid license to drive. See

e.g. Stephen v. State, 677 S.W.2d 42, 43-44 (Tex.Crim.App. 1984) (impoundment

proper where driver arrested and passenger was unable to furnish any kind of

identification or a driver's license).

(ii)    No alternatives other than impoundment were available.

        Secondly, while Officer Boyce did not call Appellant's father, neither the TPD

impoundment policy, nor the law, require that an officer must make any attempt

locate someone to come and pick up the vehicle. See (RR 1: State's Exhibit 1); see

also Greer v. State, 436 S.W.3d 1, 7 (Tex.App. - Waco 2014, no pet.) ("We note that

peace officers need not independently investigate possible alternatives to

impoundment absent some objectively demonstrable evidence that alternatives did,

in fact, exist.") citing Mayberry, 830 S.W.2d at 180 (as a factor in determining lawful

impoundment courts have considered "the availability of someone at the scene of

the arrest to whom the police could have given possession of the vehicle.")

(emphasis supplied).

(iii)   The impounding agency had an inventory policy.

        Thirdly, the evidence is undisputed that the Tyler Police Department has an

impoundment policy. (RR 1: State's Exhibit 1).

                                           16
(iv)   The impoundment policy was followed.

       Finally, the evidence supports that Officer Boyce was fully aware of the TPD

impoundment policy and consciously followed it. (RR 1: 10-12, 24-26, 33-34).

       Given that the evidence in this case met the required elements, constructively

or directly, the trial court's denial of Appellant's motion to suppress, when viewed in

"the light most favorable to the trial court’s ruling," was not an unreasonable abuse

of the court's discretion. See Guzman, 955 S.W.2d at 89.

2.     The TPD Impoundment Policy is not Inconsistent

       Appellant further alleges that the trial court's denial of his motion to suppress

was unreasonable and should also be overturned where the TPD impoundment policy

is inconsistent or unclear. (Appellant's brief at 15, 23-24). However, while Appellant

briefly noted in closing what he thought was an inconsistency in that policy, he did

not argue it as a basis for suppression at trial. (RR 1: 5, 49-51). As such, Appellant

has waived this complaint. See State v. Mercado, 972 S.W.2d 75, 78 (Tex.Crim.App.

1998) (holding points not argued at trial are deemed waived on appeal); see also

Brown v. State, 6 S.W.3d 571, 582 (Tex.App. - Tyler 1999, pet. ref'd) (to preserve

error, the complaint on appeal must comport with the objection made at trial).

       Alternatively, the TPD policy is not inconsistent or unclear for the mere fact

that it allows officers to consider mitigating circumstances in what would otherwise

                                           17
be a situation calling for a mandatory impoundment of a vehicle. The policy must out

of necessity cover every potential factual situation that an officer may face while

patrolling the streets of Tyler.

       The law has long recognized that a police officer must necessarily exercise his

discretion in deciding whether to charge a criminal offense. See Rippy v. State, 53

S.W.2d 619, 625 (Tex.Crim.App. 1932) ("Peace officers are not lawyers or judges,

but men charged with the conservation of the peace, and in most cases the protection

of society, and the exercise of their discretion in matters such as are here set forth

should not be overturned or revised except possibly in cases clearly evidencing some

abuse . . ."). Where an officer may lawfully exercise discretion in charging an

individual with an offense, the grant of discretion here in deciding whether to

impound a vehicle based upon a consideration of potentially mitigating circumstances

is certainly not unreasonable. It is in fact equally necessary to provide the officer with

the flexibility that may required to meet whatever unusual circumstances that may

arise at a traffic stop.

       The trial court found that there existed a conflict in the TPD policy. (RR 1: 52).

The State respectfully disagrees. But, in any event, the trial court did not base its

denial of Appellant's motion to suppress upon a lack of conflict or clarity in the TPD

impoundment policy. The court denied Appellant's motion upon the fact that it felt

                                            18
the officer complied with the mandatory portion of the TPD policy. (RR 1: 52) ("So

based on that basis, the shall part, I am going to deny your motion to suppress."). As

argued above, the State believes that there was no abuse of discretion in that ruling.

      The Court of Criminal Appeals has specifically instructed appellate courts to

give deference to the trial court’s ruling with regard to a motion to suppress. State v.

Carter, 915 S.W.2d at 504. Even if this Court would reach a different result on the

issue of suppression, as long as the trial court’s rulings are at least within the “zone

of reasonable disagreement,” the Court should not intercede. Id. at 496-97.

      For these reasons, there is no merit to Appellant's Point of Error and it should

be overruled.




                                           19
                                      P RAYER

      WHEREFORE, for the reasons stated herein, the State of Texas prays that the

Court of Appeals overrule Appellant’s Points of Error and affirm the judgment of the

County Court at Law #2, Smith County, Texas, in this case.

                                       Respectfully submitted,

                                       D. MATT BINGHAM
                                       Smith County Criminal District Attorney


                                        /s/ Michael J. West
                                       _________________________
                                       Michael J. West
                                       Asst. Criminal District Attorney
                                       Bar I.D. No. 21203300
                                       100 N. Broadway, 4th Fl.
                                       Tyler, Texas 75702
                                       (903) 590-1720
                                       (903) 590-1719 (fax)


                          CERTIFICATE OF COMPLIANCE

      The undersigned hereby certifies that the pertinent sections of the State’s Reply

Brief in the above numbered cause contain 4,082 words, an amount which complies

with Texas Rule of Appellate Procedure 9.4 (i) (Vernon 2015).


                                        /s/ Michael J. West
                                       _________________________
                                       Michael J. West
                                       Asst. Criminal District Attorney
                                       Bar I.D. No. 21203300

                                          20
                            CERTIFICATE OF SERVICE

      The undersigned hereby certifies that on this _____         September
                                                     18th day of ________________,
2015, the following have been completed:

      (1) The original of the State’s Response to Appellant’s Brief in the above
      numbered cause has been sent via electronic filing to the Clerk of the Court of
      Twelfth Court of Appeals.

      (2) A legible copy of the State’s Response to Appellant’s Brief in the above
      numbered cause has been sent via electronic filing to:

      Mr. Jeffery Sanders
      Attorney at Law
      120 S. Broadway, Ste. 112
      Tyler, Texas 75702


                                        /s/ Michael J. West
                                       _________________________
                                       Michael J. West
                                       Asst. Criminal District Attorney
                                       Bar I.D. No. 21203300




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