             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00002-CR
     ___________________________

       ERIC STALLONS, Appellant

                     V.

          THE STATE OF TEXAS


  On Appeal from the 16th District Court
        Denton County, Texas
      Trial Court No. F16-629-16


  Before Gabriel, Pittman, and Birdwell, JJ.
  Memorandum Opinion by Justice Gabriel
                           MEMORANDUM OPINION

      Appellant Eric Stallons appeals from his conviction and resulting seventeen-

year sentence for intentionally or knowingly possessing four or more grams, but less

than two hundred grams, of a controlled substance (methamphetamine). See Tex.

Health & Safety Code Ann. § 481.115(a), (d); Tex. Penal Code Ann. § 12.42(b). In a

single issue, he argues the trial court erroneously denied his motion to suppress

evidence. We affirm.

                                 I. BACKGROUND

      While on patrol on April 19, 2015, Denton police officer Jared Stevenson, who

had a police recruit riding with him as an observer, noticed Stallons driving a car that

had an expired temporary license plate. Officer Stevenson stopped Stallons, informed

him why he had been stopped, and asked him for his driver’s license and proof of

insurance. Stallons produced his driver’s license but did not have proof of insurance.

While talking with Stallons, Officer Stevenson noticed that Stallons’s hands were

shaking and that he started sweating. Officer Stevenson went back to his patrol car to

check if Stallons had any warrants and to make sure his driver’s license was valid.

      As Officer Stevenson returned to Stallons’s car, he noticed that Stallons

appeared to be stuffing something between the driver’s seat and the center console.

When Officer Stevenson reached the driver’s side window, he asked Stallons about

the movement he had just seen. Stallons became even more nervous and told Officer

Stevenson that he had just been reaching for his phone. But Officer Stevenson

                                           2
noticed that Stallons’s phone was on top of the center console, not between the

driver’s seat and the console.

      Officer Stevenson became “a little nervous” given Stallons’s “furtive

movement” inside the car because he did not know whether there was a weapon

between the driver’s seat and center console, so he asked Stallons if he could speak

with Stallons outside of the car. Officer Stevenson added that Stallons was not in any

trouble but that he would prefer to speak with Stallons outside of the car because

Stallons’s movement inside the car had made him uncomfortable. Stallons declined to

speak with Officer Stevenson outside of the car. Officer Stevenson then walked to

the front passenger window and looked inside the car, but he did not see anything

from that vantage point that would have made it immediately necessary to get Stallons

out of the car. Officer Stevenson continued speaking with Stallons through the front

passenger window, and during that conversation, Stallons informed Officer Stevenson

that he had received a ticket in Northlake for lack of insurance. Stallons further stated

that he would not be able to prove to Officer Stevenson that he had insurance. After

Stallons told Officer Stevenson that he had received a ticket in Northlake for lack of

insurance and that he could not prove that he had insurance, Officer Stevenson

decided to impound Stallons’s car.

      Officer Stevenson walked back around the car and to the front driver’s side.

As he did so, he told the recruit, who was standing nearby, that he was going to get

Stallons out of the car. When he reached the driver’s side, Officer Stevenson told

                                           3
Stallons that he needed to get out of the car, Stallons complied, and Officer Stevenson

had him walk to the back of the car. Officer Stevenson asked Stallons what he had

put between his seat and the center console. Officer Stevenson told Stallons that he

did not believe Stallons was reaching for his phone. Stallons replied that he had not

put anything between the seat and center console but instead had been reaching for a

wire that was connected to his phone.

      Officer Stevenson asked Stallons again if he had put anything between the seat

and center console. Officer Stevenson told Stallons that he was going to impound

Stallons’s car because he did not have insurance but that he wanted to make sure

Stallons had not been doing anything illegal. Officer Stevenson asked Stallons if he

had ever been arrested, and Stallons replied that he had, though he volunteered that

he had not been arrested for anything drug-related. Officer Stevenson again asked

Stallons if he had anything in his car that he should not have had or that he was trying

to hide, and Stallons replied that he was not trying to hide anything.          Officer

Stevenson asked Stallons what he needed to get out of the car, and Officer Stevenson

retrieved Stallons’s wallet and phone and gave them to him.

      Officer Stevenson returned to the front driver’s side of the car and checked the

area between the driver’s seat and center console but did not discover a weapon. He

then returned to his patrol car and wrote Stallons a ticket for his lack of vehicle

registration and insurance. Officer Stevenson told Stallons that he needed to call

someone to get him because the car was being impounded. Officer Stevenson again

                                           4
asked Stallons what he needed to get out of the car before it was towed, but Stallons

did not identify any items.

      Officer Stevenson then conducted an inventory search of Stallons’s car. In the

course of that search, Officer Stevenson moved a jacket that was resting on the front

passenger seat and discovered a wadded-up, clear plastic baggy lying on the corner of

the passenger seat that was nearest to the center console. The baggy contained a

white crystal substance that Officer Stevenson believed to be methamphetamine.

Officer Stevenson walked back to Stallons and placed him in handcuffs, and when

Stallons asked him why he was being arrested, Officer Stevenson replied that he

found the methamphetamine that Stallons had hidden.

      Officer Stevenson then returned to Stallons’s car and conducted a probable-

cause search. He discovered a black digital scale. Officer Stevenson again returned to

Stallons and escorted him to the back of the patrol car. As he did so, Stallons

dropped another baggy of methamphetamine on the ground that he had been hiding

in his waistband.

      Stallons filed a pretrial motion to suppress evidence alleging that the search of

his car was illegal because it was performed without probable cause after a traffic stop.

He asked the trial court to suppress any contraband found during the search. The

trial court held a hearing and denied the motion without entering findings of fact or

conclusions of law. Later, during the trial, the State offered, and the trial court

admitted, the two baggies of methamphetamine into evidence.

                                           5
      Stallons challenges the trial court’s denial of his motion to suppress. In a single

issue, he argues Officer Stevenson’s search of his car violated the Fourth

Amendment, principally complaining that it was not a valid inventory search.

                           II. STANDARD OF REVIEW

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

suppress evidence. 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). We defer almost totally to

a trial court’s rulings on questions of historical fact and application-of-law-to-fact

questions that turn on evaluating credibility and demeanor, but we review de novo

application-of-law-to-fact questions that do not turn on credibility and demeanor.

Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.

2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      When the record is silent on the reasons for the trial court’s ruling, or when

there are no explicit fact findings and neither party timely requested findings and

conclusions from the trial court, we imply the necessary fact findings that would

support the trial court’s ruling if the evidence, viewed in the light most favorable to

the trial court’s ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236,

241 (Tex. Crim. App. 2008); see Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App.

2007). We then review the trial court’s legal ruling de novo unless the implied fact

findings supported by the record are also dispositive of the legal ruling. State v. Kelly,

204 S.W.3d 808, 819 (Tex. Crim. App. 2006).

                                            6
                             III. APPLICABLE LAW

       The Fourth Amendment protects against unreasonable searches and seizures

by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. A police

officer’s inventory of the contents of an automobile is permissible under the Fourth

Amendment if it is conducted pursuant to a lawful impoundment of the vehicle.1

South Dakota v. Opperman, 428 U.S. 364, 375–76 (1976); Moskey v. State, 333 S.W.3d

696, 700 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

       To qualify as a valid inventory search, the inventory must be conducted in good

faith and pursuant to a reasonable standardized police procedure. Moskey, 333 S.W.3d

at 700. The inventory search must be designed to produce an inventory of the

vehicle’s contents and may not be used as a ruse for a general rummaging in order to

discover incriminating evidence. Id. The State bears the burden to establish that the

police conducted a lawful inventory search. Id. The State meets its burden by

demonstrating that an inventory policy exists and the police officers followed the

policy. Id.

                                IV. DISCUSSION

       Stallons concedes that the Denton Police Department had an inventory policy.

He raises three other reasons why Officer Stevenson’s search was illegal. First,

Stallons argues that Officer Stevenson did not follow his department’s inventory


       Stallons does not challenge the lawfulness of the impoundment.
       1




                                          7
policy and offers two reasons why. One, he argues that Officer Stevenson’s testimony

shows that he sought to document only valuable property inside the car during his

inventory, as opposed to the inventory policy’s requirement that he list any property

inside the car.     And two, Stallons contends that even assuming the police

department’s policy allowed Officer Stevenson to document only valuable property in

the car during the inventory, his completed inventory form shows he did not do so

because he listed only two items, “Money” and “Tools.”

      But these were not among the grounds Stallons raised as a basis to suppress the

challenged evidence either in his motion to suppress evidence or in the suppression

hearing. Thus, these arguments are not preserved for review.2 See Tex. R. App. P.


      2
        Even if Stallons preserved these arguments, we would conclude the record
supports a finding that Officer Stevenson followed the department’s policy. During
the hearing, Officer Stevenson testified that his department had a vehicle impound
and inventory policy pertaining to situations where operators of motor vehicles fail to
provide proof of insurance. He testified that in those situations, the department
generally impounded the vehicle and called for a wrecker service. Officer Stevenson
stated that occurred fairly routinely. He testified that officers were required to fill out
an inventory form when they impounded a vehicle. And he testified that he
conducted such an inventory of Stallons’s vehicle and that he did so in a manner that
was consistent with the department’s policy. This testimony supports a finding that
Officer Stevenson followed his department’s policy when he performed the inventory
search of Stallons’s car. See Stephen v. State, 677 S.W.2d 42, 44 (Tex. Crim. App. 1984)
(noting that the State may satisfy its burden to establish a valid inventory search
“through the testimony of the officers that an inventory policy existed and that the
policy was followed” and that “[t]here was no need to introduce into evidence a
written inventory”); Johnson v. State, No. 07-11-00186-CR, 2013 WL 2297038, at *2
(Tex. App.—Amarillo May 21, 2013, no pet.) (mem. op., not designated for
publication) (“An officer’s testimony is sufficient to show an inventory search policy
existed and was followed.”).


                                            8
33.1(a); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (“The point of

error on appeal must comport with the objection made at trial.”); Lovill v. State,

319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (“A complaint will not be preserved

if the legal basis of the complaint raised on appeal varies from the complaint made at

trial.”); see also Spradley v. State, Nos. 14-02-00266-CR, 14-02-00267-CR, 14-02-00268-

CR, 2003 WL 21282468, at *2 (Tex. App.—Houston [14th Dist.] June 5, 2003, no

pet.) (mem. op., not designated for publication) (holding appellant’s argument that

inventory search was not conducted pursuant to lawful impoundment of car did not

comport with trial objection and, thus, was not preserved).

      Second, Stallons maintains that Officer Stevenson’s inventory was merely a

ruse for a general rummaging through the car for incriminating evidence. Stallons

calls attention to Officer Stevenson’s initial search between the driver’s seat and the

center console.    According to Stallons, the evidence shows Officer Stevenson

suspected all along that he had been trying to conceal something illegal and that it was

only after Officer Stevenson “found nothing” during his initial search that he began

discussing Stallons’s lack of insurance in more detail and made the decision to

impound his car. Stallons further argues that Officer Stevenson’s intent to search the

car for incriminating evidence is only confirmed by the fact that when he arrested

Stallons, he told Stallons that he had “found the meth that [Stallons had] hid.”

      The trial court implicitly found that Officer Stevenson’s inventory of Stallons’s

car was not a ruse, and we conclude the record supports that implied finding. First,

                                           9
contrary to Stallons’s contention, the evidence supports a finding that Officer

Stevenson made the decision to impound Stallons’s car before he had performed any

search of the car. Officer Stevenson testified that he made the decision to impound

Stallons’s car when he learned that Stallons had previously received a ticket in

Northlake for lack of insurance and that Stallons would not be able to prove that he

had insurance.    Officer Stevenson’s bodycam video, which was admitted at the

suppression hearing, shows that Stallons told him these facts during their

conversation while Officer Stevenson was at the front passenger window, a

conversation that took place before Officer Stevenson had performed any search of

the passenger compartment.3

      In addition, almost immediately after Stallons told Officer Stevenson about his

previous ticket and that he could not provide proof of insurance, Officer Stevenson

asked him where he was headed, and Stallons replied that he was going to meet his

      3
        At the hearing, Officer Stevenson’s recollection was that he got Stallons out of
the car and performed his initial search before Stallons told him about the prior ticket
and confirming that he did not have insurance. Stallons relies on this testimony for
his argument Officer Stevenson performed his initial search before he made the
decision to impound the car. But Officer Stevenson’s bodycam video shows that his
encounter with Stallons occurred as we have described it. We further note that on
several occasions, in response to questioning from both the prosecutor and Stallons’s
counsel, Officer Stevenson testified that his bodycam video would be the best source
of evidence regarding his encounter with Stallons. In the face of any conflict between
Officer Stevenson’s testimony and his bodycam video, the trial court, as the sole
factfinder, was entitled to resolve the conflict by believing the bodycam video. See
Wiede, 214 S.W.3d at 24–25 (noting the trial judge “is the sole trier of fact and judge of
the credibility of the witnesses and the weight to be given their testimony when
entertaining a motion to suppress” (quotation omitted)).


                                           10
girlfriend. Officer Stevenson next asked Stallons if his girlfriend lived locally, and

Stallons confirmed that she did. Then Officer Stevenson began walking to the front

driver’s side of the car, and as he did so, he told the police recruit who had been

riding along with him that he was going to get Stallons out of the car. These

additional facts support a conclusion that the reason Officer Stevenson asked Stallons

if his girlfriend lived locally and told the police recruit that he was going to get

Stallons out of the car was that he had decided to impound Stallons’s car. So the

record supports a finding that Officer Stevenson made the decision to impound the

car not after his initial search turned up nothing, as Stallons contends, but before he

even got Stallons out of the car.

      With respect to Officer Stevenson’s statement to Stallons upon arrest that he

had found the methamphetamine Stallons had hidden, we note that Officer Stevenson

did testify that before he searched the car, he harbored a suspicion that Stallons may

have been hiding something inside it, a fact that was confirmed by the bodycam

video. However, to the extent Stallons contends that Officer Stevenson’s suspicion

that he had hidden contraband in the car demonstrates that the inventory search was a

ruse, we disagree.

      As the court of criminal appeals has noted, “[i]t would not be realistic to

require that in justifying an inventory search the police must affirm that they had

absolutely no hopes or expectation of finding contraband or other inculpatory

material.” Vargas v. State, 542 S.W.2d 151, 154–55 (Tex. Crim. App. 1976). Thus,

                                          11
“[a]n inventory search is reasonable under the requirements of the Fourth

Amendment not for the reason that the subjective motives of the police are

simplistically pure, but because the facts of the situation indicate that an inventory

search is reasonable under the circumstances.” Id. at 155; see also United States v. Bosby,

675 F.2d 1174, 1179 (11th Cir. 1982) (“[T]he mere expectation of uncovering

evidence will not vitiate an otherwise valid inventory search.”); United States v. Prescott,

599 F.2d 103, 106 (5th Cir. 1979) (“If an inventory search is otherwise reasonable, its

validity is not vitiated by a police officer’s suspicion that contraband or other evidence

may be found.”).

       As we have noted, an inventory search of a lawfully impounded vehicle is

reasonable under the Fourth Amendment.                See Opperman, 428 U.S. at 372

(“[I]nventories pursuant to standard police procedures are reasonable.”); Moskey,

333 S.W.3d at 700 (“A police officer’s inventory of the contents of an automobile is

permissible under the Fourth Amendment if conducted pursuant to a lawful

impoundment of the vehicle.”). Officer Stevenson testified that the Denton Police

Department has a policy of inventorying vehicles that are impounded due to the

failure to provide proof of insurance.         Officer Stevenson stated that generally

speaking, if officers with the Denton Police Department pulled someone over who

did not have proof of insurance, the officers “would impound the vehicle for no

insurance and call for a wrecker service,” and he added that this was something that



                                            12
happened fairly routinely. Stallons does not contest the fact that he did not have

proof of insurance when Officer Stevenson stopped him.

      Further, Officer Stevenson testified that he did not decide to impound

Stallons’s car because he believed an inventory would turn up something illegal.

Rather, as noted above, the record supports a finding that Officer Stevenson decided

to impound Stallons’s vehicle because he had a prior ticket for failure to provide

proof of insurance and because he did not have proof of insurance.               In these

circumstances, the fact that Officer Stevenson may have also had a suspicion that

Stallons was hiding something in his car did not vitiate the validity of the inventory

search. See Vargas, 542 S.W.2d at 154–155; Bosby, 675 F.2d at 1179.

      Finally, Stallons argues that Officer Stevenson’s initial search between the

driver’s seat and center console was itself an illegal warrantless search that so blatantly

violated the Fourth Amendment that it tainted the subsequent inventory search,

necessitating the suppression of any evidence found during the inventory search.

Stallons bases this argument on the Supreme Court’s decision in Arizona v. Gant, a

case involving the search-incident-to-arrest exception to the Fourth Amendment’s

warrant requirement. See 556 U.S. 332, 351 (2009) (“Police may search a vehicle

incident to a recent occupant’s arrest only if the arrestee is within reaching distance of

the passenger compartment at the time of the search or it is reasonable to believe the

vehicle contains evidence of the offense of arrest.”).



                                            13
       Stallons’s argument necessarily turns on his claim that Officer Stevenson’s

initial search of his car occurred before he impounded it. But as we have already

explained, the record supports a finding that Officer Stevenson did not search

Stallons’s car until after he had impounded it. Stallons concedes that the Denton

Police Department has a policy of inventorying impounded vehicles, and he either did

not preserve any arguments that Officer Stevenson failed to follow that policy when

searching his car or, if he did preserve such arguments, the record supports a finding

that Officer Stevenson followed the policy when conducting the search. Accordingly,

because the record supports a finding that Officer Stevenson’s search of Stallons’s car

was a valid inventory search, Gant is inapplicable. See Moskey, 333 S.W.3d at 700

(noting the State meets its burden to establish a valid inventory search by

demonstrating (1) an inventory policy exists and (2) the officers followed the policy);

Garcia v. State, No. 05-10-00521-CR, 2011 WL 5231426, at *4 (Tex. App.—Dallas

Nov. 3, 2011, no pet.) (mem. op., not designated for publication) (“Because the search

at issue in this case satisfies the requirements for a valid inventory search, Gant does

not apply.”).

       In sum, we conclude that the record supports a finding that Officer

Stevenson’s search of Stallons’s car was a valid inventory search. Accordingly, the

trial court did not err by denying his motion to suppress evidence. We overrule

Stallons’s sole issue.



                                          14
                                V. CONCLUSION

      Having overruled Stallons’s sole issue, we affirm the trial court’s judgment. See

Tex. R. App. P. 43.2(a).


                                                     /s/ Lee Gabriel

                                                     Lee Gabriel
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: April 18, 2019




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