                                                                                    ACCEPTED
                                                                                12-15-00055-CR
                                                                   TWELFTH COURT OF APPEALS
                                                                                 TYLER, TEXAS
                                                                           6/10/2015 6:58:36 PM
                                                                                  CATHY LUSK
                                                                                         CLERK




                      No. 12- 1 5—0O055-CR                   FILED IN
                                                      12th COURT OF APPEALS
                                                           TYLER, TEXAS
            IN THE TWELF TH COURT OF APPEALS          6/10/2015 6:58:36 PM
                        TYLER, TEXAS                       CATHY S. LUSK
                                                               Clerk




                        JORGE ZEPEDA
                         APPELLANT

                              VS.


                    THE STATE OF TEXAS
                           APPELLEE


  On Appeal ﬁom the County Court at Law #2 cause # O02-82159-14
                       Smith County, Texas
                          Judge Rodgers


                     APPELLANT’S BRJEF


                                      Jeff Sanders
                                      State Bar No: 24033153
                                      120 S. Broadway, Suite 112
ORAL ARGUMENT REQUESTED               Tyler, Texas 75702
                                      (903) 593-8040
                                      (903) 595-5532 fax

                                ATTORNEY FOR APPELLANT
      IDENTITY OF PARTIES AND COUNSEL
Parties to Trial Cou1t’s Judgment:


Appellant is JORGE ZEPEDA.
Appellee is The State of Texas.

Names and Addresses of Trial and Appellate Counsel

1.   JORGE ZEPEDA
            Jeff Sanders
            120    Broadway, Suite 112
                  S.
            Tyler, Texas 75702

2.   The   State of Texas


            Michael West
            Smith County District Attorney’s Ofﬁce
            100 North Broadway
            Tyler, Texas 75702
                                                                                     TABLE OF CONTENTS

Identity of Parties                          and Counsel                                                                                         .           .           .           .               .           .           .           .           .       .               .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         Pi
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         .           .           .           .   ii



Table of Contents                            .   .   .   .           .           .           .           .           .           .           .           .           .           .           .               .       .           .           .           .               .       .           .           .               .           .           .       .               .           .       .               .       .           .           .               .       .               .       .           .           .           .           .           .           .           iii



Index of Authorities                                 .   .           .           .           .           .           .           .           .           .           .           .           .                   .           .           .           .       .               .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .iV


Statement of the Case                                        .           .           .           .           .           .           .           .           .       .               .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .        1


Issue Presented                      .   .   .   .   .   .           .           .           .           .               .       .           .           .           .           .           .               .           .           .           .       .               .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .        2

Statement of the Facts                                           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .    2

Summary of the Argument                                                                                      .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           ,           .           .                   15

Argument and Authorities                                                                             .               .       .           .           .           .           .           .               .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           17

Prayer   .   .   .   .   .   .   .   .   .   .   .   .   .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .               .       .           .           .               .       .           .           .               .           .       .               .       .           .           .               .       .               .       .           .           .           .           .           .                   29

Certiﬁcate of Service                                    .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           30

Certiﬁcate of Compliance                                                                             .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           .           30




                                                                                                                                                                                                                 iii
                                     INDEX OF AUTHORITIES
                                                                                                                                                                                                                                                                                                                                    PAGE
Colorado v. Bertine, 479 U.S. 367, 371, 107                                                                                             S. Ct. 738, 741,
      93 L. Ed. 2d 739 (1987)                       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .           .           .           .           .. 19,                                                      20

Florida v. Wells, 495 U.S. 1, 4, 110                                            s. Ct.                                  1632, 1635,
      109 L. Ed. 2d 1 (1990)                .   .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .           .               .19, 21,                                                                    22

South Dakota      Oggermarz, 428 U.S. 364, 369, 96
                          v.                                                                                                                                                    S. Ct.                                  3092, 3097,
        49 L. Ed. 2d 1000 (1976)                        .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .       .               .           .           .           .               .19,                                21

Benavides          v.   State,    600 S.W.2d 809, 810 (Tex. Crim. App. 1980)                                                                                                                                                                                                            .           .           .               .           19, 21


Carmouche v.              State, 10   S.W.3d 323, 327 (Tex. Crim. App. 2000)                                                                                                                                                                                                            .           .           .               .17, 18


Gauldin       v.   State,      683 S.W.2d 411, 415 (Tex. Crim. App. 1984)                                                                                                                                                                                           .           .           .           .           .               .           .           .           22

Hubert v. State 312 S.W.3d 554, 559 (Tex. Crim. App. 2010)                                                                                                                                                                                              .           .               .       .           .               .               .           .       .           17

Maxwell v.          State,       73 S.W.3d 278, 281 (Tex. Crim. App. 2002)                                                                                                                                                                                  .           .           .           .           .           .               .           .           .       18

Moberg v.          State,      810 S.W.2d 190, 195 (Tex. Crim. App. 1991)                                                                                                                                                                                       .           .               .           .           .               .           .           .           20

Neal v.      State,      256 S.W.3d 264, 281 (Tex. Crim. App. 2008)                                                                                                                                                                         .       .       .           .           .           .           .           .               .           .           .        17

Shepard v.         State,      273 S.W.3d 681, 684 (Tex. Crim. App. 2008)                                                                                                                                                                                           .               .           .           .           .               .           .           .        17

State   v.   Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999)                                                                                                                                                                                                .           .           .           .           .               .           .           .           .   18

State   v.   Castlebemv, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011)                                                                                                                                                                                                                                     .           .               .           .           .           18

State   v.   Iduarte, 268           S.W.3d 544, 548 (Tex. Crim. App. 2008)                                                                                                                                                                                  .           .               .           .           .           .               .           .           .   19

State   v.   Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)                                                                                                                                                                        .       .       .       .           .           .           .           .               .               .       .           .        18

Valtierra      v.       State,   310 S.W.3d 442, 447 (Tex. Crim. App. 2010)                                                                                                                                                                                                     .           .           .           .               .           .           .           18
                                                                                            iv
Ward v State, 659 S.W.2d 643, 646 (Tex. Crim. App. 1983)                                                                              .       .           .       .           .           .           .           .           .           .       .       22

Banda v.       State 317       S.W.3d 907, 907-08
      (Tex. App.           — Houston[14“‘     District] 2010,                 no pet.)                        .           .       .           .       .           .           .           .       .               .           .           .       .       19

Ferzton   v.    State,   785 S.W.2d 443 (Tex. App. Austin 1990)                                                       .           .       .           .       .           .           .       .               .           .           .       .           22

Garza V.       137 S.W.3d 878, 882
               State,
      (Tex. App. — Houston[15‘ Dist] 2004,                    pet.            Refd)                   .       .       .           .       .           .       .           .           .           .           .           .           .       .       .


20

Greer v.   State,       436 S.W.3d    1,   7 (Tex. App.       — Waco 2014, no pet.)                                                                                                       .           .           .           .           .       .       20

Kennedy v.        State, case#     12-13-00248-CR     .   .   .   .   .   .   .   .   .   .   .   .       .       .           .       .           .       .           .           .           .           .           .           17, 19

Mosg       v.   333 S.W.3d 696, 702
                State,
      (Tex. App. — Houston[1S‘ Dist.] 2010, no                            pet.)           .   .   .       .       .       .           .       .           .       .           .           .           .           .               .       .       .       19

Rodrigyez        v.   State,   641 S.W.2d 955
      (Tex.           App. — Amarillo   1982, no writ)        .   .   .   .   .   .   .   .   .   .       .       .           .       .           .       .           .           .           .           .           .           20, 21
                             STATEMENT OF THE CASE
         The Smith County District Attorney charged Appellant by information

for possession of marijuana arising         from Appellant’s      arrest   on May 26,

2014.    (CR 2). Appellant ﬁled a pretrial motion to           suppress illegally seized

evidence because of an unlawful inventory search.               (CR 32-35).       After a

hearing, the    trial   court denied the motion.     (CR 43). The trial court ﬁled its
ﬁndings of fact and conclusions of law on January               15,   2015.   (CR 36-3 7).
         On February      11,   2015, Appellant waived his constitutional right to a

jury trial and entered a guilty plea to the charge with an agreed plea

recommendation. (CR 48-49).            On February     ll,   2015, the   trial   court assessed

punishment      at   2 years deferred adjudication probation.         (CR 44-47).
         Appellant timely ﬁled Notice of Appeal on February                1 1,   2015.   (CR

43).    The Certiﬁcation By Trial       CO1]1'tt0   allow this appeal was ﬁled on

February     1 1,   2015 (CR 58) Appellant appeals the judgment based on the

trial   court’s denial of his    motion to suppress    illegally seized evidence.
                                ISSUE PRESENTED

                The trial court committedreversible error when it denied
         Appellant’s motion to suppress illegally seized evidence, namely,
         marijuana, during an unlawful inventory search of the vehicle.



                        STATENIENT OF THE FACTS
         Tyler Police Officer Boyce was on patrol on       May 26, 2014, and
conducted a trafﬁc stop on Appellant for failure to signal a turn properly.

(RR 8). Appellant provided Ofﬂcer Boyce with a driver’s license that was

suspended and an insurance card which displayed that Appellant was an

excluded driver on this vehicle.   (RR 9) The vehicle was registered to
Appellant’s father, Juan Zepeda. The insurance card named Juan Zepeda as

the insured for this vehicle.   (RR 24).   Said insurance was valid and in effect

at the   time of the traffic stop for Juan Zepeda.

         Prior to the unlawful inventory search, Officer     Boyce asked Appellant

several questions about marijuana.     (RR     16).   Ofﬁcer Boyce admitted he

asked Appellant when Appellant      last   smoked marijuana. (RR     15). Officer


Boyce issued Appellant citations for Driving While License Invalid and No

Liability Insurance. Appellant    was not under arrest at that point.

                                           2
       Ofﬁcer Boyce stated he had to tow the vehicle pursuant to Tyler

Police Department     Towing Policy. (RR       10);   (RR 48); (RR Exhibit 1 and 2).
Subsequent to the off1cer’s decision to impound and tow the vehicle, Ofﬁcer

Boyce conducted an inventory search of the vehicle. Ofﬁcer Boyce

admitted he had no intention of arresting Appellant until after the marijuana

was found during the inventory search. (RR 20).

       Ofﬁcer Boyce testiﬁed that he did not contact Appellant’s father

because, as Ofﬁcer Boyce stated,     “He   [Appellant’s father] already allowed

Jorge to drive the vehicle.   He isjust going to turn around and allow Jorge to
continue driving the vehicle, so therefore,      I   towed the vehicle.” (RR 24).

       Ofﬁcer Boyce agreed that there was no way he would allow

Appellant’s father to pick up Appellant and vehicle.          (RR 28). Ofﬁcer Boyce
stated this   was because “his father allowed an unlicensed driver to operate a

motor vehicle with insurance that has him as an excluded driver.” (RR 28).

       Ofﬁcer Boyce denied Appellant’s request to           call his father,   Juan

Zepeda, to pick up the vehicle and Appellant.          (RR 27). Ofﬁcer Boyce

admitted he could have allowed that to happen.          (RR 27).   Appellant’s father

Juan Zepeda testiﬁed that he lived nine blocks away and would have come

to pick   up the vehicle and Appellant in less than ten minutes. (RR 43).

                                           3
Ofﬁcer Boyce stated he knew that Appellant’s address would be roughly a

mile away.    (RR 30).

         Ofﬁcer Boyce found marijuana in the ashtray during the inventory

search and arrested Appellant for the Class          B Misdemeanor charge of
Possession of Marijuana.      (RR 14). Appellant was arrested for Possession of
Marijuana only. Ofﬁcer Boyce stated his plan was for Appellant to                 call


somebody to pick up Appellant after the inventory search if the marijuana

had not been found and if Appellant had not been arrested. (RR 26).

         Ofﬁcer Boyce agreed that the Tyler Police Department Towing Policy

states that before the    impoundment of a vehicle the ofﬁcer          shall consider


mitigating circumstances not to        impound the vehicle. (RR 31). Ofﬁcer

Boyce    stated there   were not any mitigating circumstances to justify not

towing the vehicle. Ofﬁcer Boyce did not see any mitigating circumstances.

         Ofﬁcer Boyce stated he towed the vehicle because “Everything I had

it   met the elements. He was operating the vehicle.           No insurance. No
license.   He had a prior.    That   is all I   needed.”   (RR 37).

         Ofﬁcer Boyce agreed that father of Appellant, Juan Zepeda, had valid

insurance on this vehicle and was authorized to drive this vehicle. Ofﬁcer

Boyce agreed there was a request by Appellant to call his             father to   come and
                                                4
pick up vehicle and Appellant.             (RR 37-38). Ofﬁcer Boyce agreed this
incident occurred in the daytime and the vehicle could have been left in the

parking    lot.       (RR 26).   Appellant’s father also testiﬁed he had valid

insurance and had to go pick up his Vehicle at                Crow Towing Co. (RR 44).

         Tyler Police Department General Order for Impoundment for Failure

to Maintain Financial Responsibility 07.500                  (RR 48) (RR Exhibit   1) states:

“07.50l       PURPOSE
         As authorized by Tyler City Code Section 4-73, the purpose of this

policy   is   to establish guidelines      and procedures for Tyler Police Department

ofﬁcers    who encounter individuals operating a motor vehicle without the

ﬁnancial responsibility required by State law, Texas Transportation Code,

Chapter 601       .




07.502    POLICY
         It is   the policy of the Tyler Police Department to conduct traffic

enforcement that will provide            maximum protection to all individuals who
use the roadways within the            city.   As part of this strategy, the Tyler Police

Department’s goal          is   to ensure that   all   motor vehicles are operated with the

ﬁnancial responsibility required by law. Enforcement action shall be taken

                                                       5
when ofﬁcers encounter individuals who fail to maintain the required

ﬁnancial responsibility unless mitigating circumstances discussed in the

policy exist.   Any action taken will be applied equitably and without
discrimination to any person.

07.503   FINANCIAL RESPONSIBILITY DEFINITION
      For the purposes of this policy, the term “ﬁnancial responsibility”

refers to the ﬁnancial responsibility      on a speciﬁc motor vehicle at the level

of coverage meeting or surpassing, State requirements (Texas Transportation

Code, Sections 601.051       — 601.124).   Financial responsibility       is   required

whether the vehicle    is   operated on a public roadway or private property.

Evidence of this ﬁnancial responsibility        is set forth   in   Texas Transportation

Code, Section 601.053. Enforcement action taken on private property will be

with supervisor approval.

07.504   TRAFFIC STOPS
A.    As part of a normal trafﬁc stop, oﬁicers         shall   ask the driver for the

      required proof of ﬁnancial responsibility of the vehicle.

B.    If the driver is unable to    produce the required documentation, the

      officer shall generally issue a citation for the appropriate offense.


C.    If the officer, either    through a driver’s license check or through

                                            6
     personal contacts, determines that the driver has previously been

         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 this policy.

D.   If the driver’s license check indicates that the driver does not possess

     a driver’s license or that 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 subsections   B
     through F as listed under “Accidents” in this policy.

07.505   ACCIDENTS
A.   If,   during the investigation of a motor vehicle accident, an ofﬁcer

     determines that one or more of the involved vehicles was operated

     without the required ﬁnancial responsibility the ofﬁcer shall impound

                                          7
the vehicle(s).    No prior conviction for failure to maintain ﬁnancial
responsibility     is   necessary in order to tow a vehicle involved in an

accident.

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.

Before impounding a vehicle, when the operator claims to have

ﬁnancial responsibility but       fails to   show the required proof of

coverage, an ofﬁcer shall        make reasonable     efforts to   determine if the

vehicle   is   covered. Steps to Verify coverage      may include but are not
limited to:

a.     Contacting the driver’s insurance company.

b.     Contacting the driver’s insurance agent.

c.     Contacting a parent or guardian          if dealing   with a minor.

(1.    Contacting the lien holder.

e.     Checking through TexSure database.

If the ofﬁcer, after      making reasonable     efforts to verify coverage, is


unable to get a deﬁnitive answer, and the driver continues to claim

                                      8
that coverage exists, the ofﬁcer          may elect not to impound the vehicle.
Ofﬁcers should note on the accident report under “ofﬁcer summary”

the steps taken to verify coverage.

If the vehicle     is   impounded, the ofﬁcer     shall issue   a citation for the

failure to     maintain or show proof of financial responsibility, unless the

offence   is   classiﬁed as a class   B Misdemeanor.
If it is determined or veriﬁed that the driver does not            have the required

ﬁnancial responsibility but the ofﬁcer believes that there are

mitigating circumstances not to           impound the vehicle, a supervisor will

be contacted.

Delayed Enforcement

If an ofﬁcer investigates an accident           where the   driver(s)    show the

required proof of financial responsibility, and         it is   later   determined

that the coverage        was not valid;   the original investigating ofﬁcer shall

issue a citation.

1.   The ofﬁcer must retrieve the         original accident report      from Data

     Management, make the appropriate correction indicating no

     ﬁnancial responsibility and the issuance of the citation, and submit

                                            9
          a supplemental      CRB-3   if the original   has already been sent to    DPS
          Austin.   The   officer will   make a notation that the report was

          amended    at the   top of the report.

     2.   Additional charges      may be ﬁled by the investigating ofﬁcer if
          appropriate (e.g. Texas Transportation            Code Section 548.603,

          Texas Penal Code Section 37.10,          etc.).


07.506   IMPOUNDMENT PROCEDURES
A.   Before impounding a vehicle under this policy, ofﬁcers should

     consider the mitigating circumstances surrounding the situation

     including:

     1.      Time of day.

     2.      Location.

     3.      Ability of operator to safely leave the location.

     4.      Availability of other units to assist with the safe removal of

             occupants.

     5.      Call   demand

     6.      Weather conditions

     7.      Lighting

     8.      Trafﬁc volume, conditions, and speed.

                                            10
An ofﬁcer impounding a vehicle for failure to maintain or show proof
of ﬁnancial responsibility will make reasonable              effort to provide for

the safety of the driver(s) and any occupant(s). Examples of

reasonable effort include, but are not limited         to,   transportation of the

driver(s)   and occupant(s) to a safe place or calling a friend or relative

for a ride. If there   is   no reasonable way to avoid placing the       driver(s)

and occupant(s) in an unsafe        situation, the   ofﬁcer shall contact a

supervisor for review to not       impound the car.

A vehicle impounded under this policy will be taken to the wrecker
company lot.

1.     Tows will be made by the on-call wrecker from the normal

      Rotation List.

2.     Officers will write the      word “no ﬁnancial responsibility” on the

       TPD Form 3       (Vehicle Release Page) under the “Reason”

      category.

3.    A vehicle inventory will be completed on any vehicle that is
      towed.

4.    The towing ofﬁcer is to complete the ‘Towed Vehicle

      Instruction’     form and provide a copy of the form to the operator

                                      11
             of the vehicle. The original fonn        is   to be attached to the report

             for routing to   Data Management. The form will also be made

             available in Spanish.

D.   The   Shift   Commander has the authority to suspend these measures

     based on workload or weather conditions.

07.507   RELEASING VEHICLES FROM Il\/IPOUND
A.   Proof of ﬁnancial responsibility,       in the   form of a ‘Financial

     Responsibility Veriﬁcation’ form obtained from the Police

     Department, will be required by the wrecker company prior to the

     release of any vehicle being     removed from the wrecker lot. In order to

     obtain a ‘Financial Responsibility Veriﬁcation’ form, proof of current

     ﬁnancial responsibility must be presented to the Police Department,

     which   shall issue the   form upon veriﬁcation of the policy, and the

     payment of a $5.00 administrative        fee, see      Tyler City Code Section 4-

     73.

     A vehicle impounded for a violation of this policy will not be released
     from the Wrecker company until the ‘Financial Responsibility

     Veriﬁcation’ form obtained from the Police Department                 is   provided.

     To allow for the verification of coverage,            releases related to this

                                        l2
    policy should generally occur during normal business hours             (Monday
    — Friday,   8:00 a.m.   — 5:00 p.m.)   at the   downtown police department.      If

    the carrier has an aﬁer-hour contract and the coverage can be verified,

    then a Patrol Supervisor may authorize that the vehicle           may be
    released.   The Supervisor will have to complete the veriﬁcation form

    from Data Management. Copies of the completed veriﬁcation form

    and the proof of ﬁnancial responsibility, and a supplemental report

    will be submitted to     Data Management for attachment to the original

    case.


.   A Customer Service Representative in the Data Management Unit will
    take the proof of financial responsibility presented       by the person that

    appears   at the   Police Department seeking veriﬁcation to get the

    vehicle released from impound.         The Customer Service Representative

    will attempt to    make contact with the insurance agency/agent listed on

    the received information and attempt to verify that the proof is

    legitimate. If the   Customer Service Representative       is   able to verify

    proof of ﬁnancial responsibility and upon receipt of the $5.00

    administrative fee, the Representative shall complete and then issue

    the ‘Financial Responsibility Veriﬁcation’ form.         The Representative

                                       13
     shall   stamp the lower right of the form      to authenticate the form.     A copy
     of the form will be attached to the original report along with a copy of the

     proof of financial responsibility.

        1.        If the Representative is unable to verify      proof of ﬁnancial

                  responsibility   from the presented information, the person will

                  be asked to obtain the required information and return to the

                  Police Department at that time for veriﬁcation.

        2.        If for   some reason,   the Representative believes that the proof

                  that has   been presented is not legitimate or is ﬁctitious; the Data

                  Management Supervisor will be notiﬁed.          If the   Data

                  Management Supervisor determines it is necessary, an ofﬁcer

                  may be called to investigate whether criminal charges may need
                  to be ﬁled.

D.     After-hour exceptions         may be made by an on-duty patrol supervisor
E.     If it is   determined that a vehicle impounded under this policy was

       towed in error, the       shift   commander has the discretion to     authorize a

       no-fee release. The wrecker          company   shall   be notiﬁed to send the bill

       to the Police       Department with the authorizing supervisor’s signature.

Approved: 02/28/12”

                                               14
                           SUMMARY OF THE ARGUMENT
        Appellant’s two-fold position             is that, first,     the State did not properly

follow Tyler Police Department’s policy on impounding Vehicles. Second,

the   impoundment policy of the Tyler Police Department                       is   not reasonable.

Ofﬁcer Boyce did not follow the policy because he did not consider

mitigating circumstances as the policy indicates.

        The policy is not reasonable because                 it is   inconsistent as to   what

actions are required in the decision-making process                      by law enforcement.

Speciﬁcally,    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.

        In fact, the      trial judge   said as   much in his ruling on the record. At the

conclusion of the hearing on the Motion                 To   Suppress, the trial judge stated,

“Number one, poor quality of testimony. Poor quality. Number two,                            it



appears that the Tyler ordinance conﬂicts with each other.                         One part is

mandatory.     It   doesn’t say shall.     It   doesn’t say after considering mitigating

circumstances.       It   says shall.   The other side says mitigating circumstances.

It’s clear   the ofﬁcer didn’t consider any mitigating circumstance, but                      it   also

                                                   15
says shall. So based on that basis, the shall part,   I   am going to deny your
motion to suppress. I don’t have a bit of problem with you taking       it   up on

that issue all   daylong.   (RR 52).




                                       l6
                                          ARGUMENT
                   The trial court committed
                                          reversible error when it denied
          Appellant’s motion to suppress illegally seized evidence, namely,
          marijuana, during an unlawful inventory search of the vehicle.

         A. Standard of Review

         On March 18, 2015, the           12TH Court of Appeals, in Kennedy            v.   State,

case # 12-13-00248-CR, stated the standard of review as follows:                      “We
review a trial cou1t’s ruling on a motion to suppress under bifurcated

standard of review. Hubert          v.   State,   312 S.W.3d 554, 55 9 (Tex. Crim. App.

2010);    Carmouche v. State, 10 S.W.3d 323, 327(Tex. Crim. App.                       2000).   A
trial   court’s decision to grant or       deny a motion to suppress         is   generally

reviewed under an abuse of discretion standard. Sheperd v. State, 273

S.W.3d 681, 684 (Tex. Crim. App. 2008). Almost total deference is given to

atrial court’s determination         of historical     facts, especially if those


determinations turn on witness credibility or demeanor, and review de novo

the   trial   cou1t’s application of the    law to     facts not   based on an evaluation of

credibility     and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim.

App. 2008).

         When deciding a motion to suppress evidence, a trial court is the
exclusive      trier   of fact and judge of the witnesses’         credibility.   Maxwell v.
                                                  17
          State, 73          S.W.3d 278, 281 (Tex. Crim. App. 2002) Accordingly, a

trial   court   may choose to believe or disbelieve all or any part of a witness’s

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

Moreover,        if,   as here, the trial judge            makes express ﬁndings of fact, the

evidence    is   viewed in the             light   most favorable to the trial judge’s ruling and

determine whether the evidence supports those factual findings. Valtierra                            v.


State,   310 S.W.3d 442, 447 (Tex. Crim. App. 2010).                         When there is not an
express ﬁnding on an issue, the appellate court infers implicit fndings of

fact that support the trial cou1t’s ruling as long as those                    ﬁndings are

supported by the record. See                     id.


         The prevailing party               is   entitled to “the strongest legitimate   View of the

evidence and           all   reasonable inferences that may be drawn from that

evidence.” State             v.   Castlebeny, 332 S.W.3d 460, 465 (Tex. Crim. App.

2011).   When all evidence is viewed in the light most favorable to the trial
court’s ruling, an appellate court is obligated to uphold the ruling                     on a

motion to suppress                if that ruling       was supported by the record and was correct

under any theory of law applicable to the case. See Ross, 32 S.W.3d                          at   856;

Carmouche, 10 S.W.3d at 327; State                          v.   Ballard, 987 S.W.2d 889, 891 (Tex.

Crim. App. 1999).

                                                           18
       The appellate court is to review the trial cou1t’s                   legal conclusions de

novo and uphold the ruling so long as it is supported by the record and

correct under any legal theory applicable to the case. State                       v.   Iduarte, 268

S.W.3d 544, 548 (Tex. Crim. App. 2008); Banda                        v.   State,   317 S.W.3d 907,

907-08 (Tex. App. — Houston[14"’               District.]   2010, no pet.) “



      B.   The Law on Vehicle Inventoﬂ

      On March           18,   2015, the   12m Court of Appeals, Kennedy v.                  State,

case # 12-13~00248-CR, stated “If conducted pursuant to a lawful

impoundment, a police ofﬂcer’s inventory search of the contents of an

automobile      is   permissible under both the Fourth              Amendment of the United
States Constitution           and Article 1, Section 9 of the Texas Constitution.” See

Colorado   v.   Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741, 93 L. Ed. 2d

739 (1987);     S.   Dakota      v.   Opperman, 428 U.S. 364, 369, 96               S. Ct.   3092,

3097, 49 L. Ed. 2d 1000 (1976); Benavides                   v.   State,   600 S.W.2d 809, 810

(Tex. Crim. App. 1980); Moskey                v.   State, 333     S.W.3d 696, 702 (Tex. App. —

Houston[15‘ Dist.] 2010, no             pet.). Inventories       serve to protect (1) the owner’s

property while        it is   in custody, (2) the police against claims or disputes over


lost or stolen property,         and (3) the police from potential danger. Opperman,

                                                    19
428 U.S.    at   369, 96 S. Ct. at 3097.

         Inventory searches should be designed to produce an inventory, not

turned into a purposeful and general means of discovering evidence of a

crime. Florida       v.   Wells,    495 US.   1, 4,   110   S. Ct.   1632, 1635, 109 L. Ed.   2d

1   (1990). Unless there has been a showing that the officer acted in bad faith

or for the sole purpose of investigation, the ofﬁcer                 may conduct an inventory
search subsequent to a decision to            impound a vehicle. Bertine, 479 U.S.            at


372-73, 107 S. Ct. at 741-42.

         The   state bears the      burden of proving that an impoundment            is   lawful

and may     satisfy   its   burden by showing that (1) the driver was           arrested, (2)      no

alternatives other than         impoundment were            available to ensure the vehicle’s

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

policy   was followed. Garza v.          State, 137     S.W.3d 878, 882 (Tex. App. —

Houston     [15‘   Dist.] 2004, pet. refd).


         There are two general categories of events justifying impoundment.

See Rodriquez        v.   State, 641   S.W.2d 955, 958 (Tex. App. — Amarillo 1982,

no writ).   First,   an officer may impound a vehicle when the               Vel1icle is a


danger to trafﬁe. See         id.   Second, an officer may impound a vehicle after an

arrest   of the vehicle’s driver when the vehicle can not be protected by any

                                                 20
means other than impoundment. See id, Greer v.;                 State,     436 S.W.3d    1,   7

(Tex. App.    — Waco 2014, no pet.). An officer “need not
                                                          independently

investigate possible alternatives to   impoundment absent some objectively

demonstrable evidence that alternatives did, in fact exist.” Greer, 436

S.W.3d at 7.”

         The courts have   listed circumstances      under which law enforcement

may reasonably impound a vehicle,       including (1) driver’s arrest when the

arrest is reasonably   connected to the vehicle (2) statutory authorization (3)

vehicle abandonment or a vehicle that     is      hazardous and presents a danger to

the public (4) a reasonable belief that the vehicle            is   stolen (5) vehicle

removal from an accident scene and (6) parking violations. Benavides at

811-812,    Opperman at 369.

        For an irnpoundrnent of a vehicle to be lawful,              it   must be reasonable

under the Fourth Amendment. Benavides              at   811.   The Court in Wells        states

that   an inventory search must be conducted pursuant to a “standardized

criteria” or “established routine”.    An inventory search must not deviate
from police department policy. Moberg         v.   State,   810 S.W.2d 190, 195 (Tex.

Crim. App. 1991).

        Impoundment and inventory searches must be                   careﬁllly   examined and

                                         21
narrowly conﬁned in each case because of a dilution of Fourth Amendment

rights against unreasonable searches   and    seizures.   Rodriguez v. State, 641

S.W. 2d 955   (   Tex. App. Amarillo 1982). “While        it   may be standard
procedure to impound the vehicle of a person          who is arrested, we conclude
that the Fourth   Amendment protection against seizures cannot be whittled

away by a police regulation.” Benavides at 812.

      For example, impoundment was unlawful             in   an arrest for speeding

and driving without a license when vehicle was legally parked              in parking lot

and defendant’s incarceration would likely be temporary. Fenton                  v.   State

785 S.W.2d 443 (Tex. App. Austin 1990).

      An inventory search is reasonable only if conducted for an inventory
and not as an investigatory tool to produce or discover incriminating

evidence. Wells at 4.      An inventory is proper when conducted in
accordance with standard police procedures. The burden             is   on the   State to

show compliance with standard procedure. Ward v State, 659 S.W.2d 643,

646 (Tex. Crim. App. 1983).

      The   failure to provide evidence that the inventory        was conducted

pursuant to standard procedure invalidates     it,   whether or not the authority to

inventory actually existed. Gauldin   v.   State,    683 S.W.2d 411.415 (Tex.

                                       22
Crim. App. 1984). The United States Supreme Court relates that an

inventory search cannot be used by law officers as a “ruse for a general

rurnrnaging.” Wells at 3-5.




       C. Analysis

      The actions of Tyler Police Officer resulting        in the   impounding and

searching of the vehicle Appellant’s drove were unlawful and, as such, the

discovery of marijuana in the vehicle was the result of an illegal search in

violation of the Fourth   Amendment of the United      States Constitution.


      First, Officer   Boyce’s actions did not   satisfy the standards outlined in


the Garza ruling. Ofﬂcer Boyce did not arrest Appellant prior to the search.

Ofﬁcer Boyce admitted he would let Appellant        call   someone to give him a

ride once the car   was impounded. In addition to the driver not being arrested

prior to the   impoundment, there were   alternatives, other than      impoundment,

to insure the vehic1e’s safety.   Ofﬁcer Boyce could have contacted

Appellant’s father, as Appellant requested,   who was the owner of the car and

had insurance for the car. Additionally, Officer Boyce could have allowed

                                         23
the car to be parked in a nearby parking           lot.   Either alternative       would have

protected the Vehicle, required minimal effort by the ofﬁcer, and                       would have

avoided any need to impound the vehicle.

          The third standard under Garza is that there was a reasonable towing

and impounding policy in place. As the trial judge clearly noted, the Tyler

Police Department towing and impounding policy                  is   not clear. While one

portion says that the towing shall occur, another portion of the policy says

that mitigating circumstances should         be considered. Section 07.504 under

Traffic Stops says that the vehicle shall         be impounded but then goes on to

say that the ofﬁcer shall comply with other subsections before impounding.

Those subsections     limit   and restrict the general language of Section 07.504

that says the Vehicle shall     be impounded. The problem              is   that   it   makes no

sense that the ofﬁcer   is    told that he shall   tow if a certain criteria is met and is

also told at the   same time that the ofﬁcer       shall follow other rules that            would

mean that impounding is not automatic. As                 such, the policy    is   not

reasonable.    The trial judge acknowledged that in his previously-quoted

ruling.


      Finally, the fourth      Garza standard says that the policy must be

followed. In this instance, Ofﬁcer        Boyce did not follow the policy.                 First,


                                             24
Section 07.504(C) and (D) says that the vehicle shall be impounded if there

is   no insurance. However, the evidence        is   clear that there   was insurance on

the vehicle—just for Appellant’s father, not Appellant.              Furthermore, both

sections instruct the ofﬁcer to follow Section 07.505 (B)             — (F).   In this

instance,     Ofﬁcer Boyce did not follow 07.505(B) because he was able to

verify that insurance existed for the vehicle. If Ofﬁcer            Boyce had concerns

about the insurance, he could have followed Section 07.505(C) and

contacted other individuals to verify that the Vehicle was covered by

insurance. Section 07.505(D) lets the ofﬁcer           still   make a decision not to

impound if there is no deﬁnitive answer that insurance exists. While that

doesn’t apply to this situation because insurance          was conﬁrmed, Sub-section

(D) notes that the ofﬁcer   still   has discretion not to impound, which          is


contrary to Ofﬁcer Boyce’s interpretation of the policy. In his eyes, he has

to   impound no matter what. That’s not what the policy says in Section

07.5 05   .




        Section O7,505(F) allows for the ofﬁcer to consider mitigating

circumstances before impounding.         On top of the fact that insurance was
veriﬁed, the ofﬁcer shall consider sub-section (F) concerning mitigating

circumstances such as an alternate placement of the vehicle, time of day,

                                           25
safety of driver, transporting the driver, allowing driver to call a relative or

friend. In this situation,    had the ofﬁcer considered      all   of the circumstances

as the policy says the ofﬁcer     is   to do, then there   would have been no need to

impound the vehicle. Appellant’s          father   owned the vehicle and had

insurance for the vehicle in his name.        A simple, reasonable phone call to
Appellant’s father would have avoided any need to impound the Vehicle.

The ofﬁcer was not going to allow that until          after the   impounding and

searching of the vehicle because the ofﬁcer wanted to investigate the

contents of the car for contraband. In no          way is that a permissible purpose
for the inventory search exception.


      Additionally, the two Greer factors were not present. First, there                 was

no danger to   traffic nor,   second,   was Appellant arrested before the      issue of

impoundment arose. The search had to be reasonable and be the result of

properly following a reasonable policy. In this instance, policy was not

followed and the inconsistencies in policy indicate          it is   unreasonable

anyway.

       If we analyze the 0ff1cer’s actions         and the policy based on the sample

of permissible circumstances outlined in Benavides and Opperman, the

impounding of Appellant’s vehicle did not stem from Appellant’s                initial


                                             26
arrest, statutory authorization, vehicle     abandonment, vehicle presenting

hazard to public, belief that vehicle     is stolen,   vehicle   removed from accident

scene, or parking violations.

      The trial court’s Findings of Fact #7 and #8          states “Tyler Police

Department’s standard policy regarding the impoundment and inventorying

of vehicles demands the impoundment of vehicles following: (1)

conﬁrmation that the Defendant has a previous conviction for failing to

maintain ﬁnancial responsibility; or (2) upon determination that the

Defendant’s license     is   currently suspended for not having insurance and the

Defendant fails   to   prove ﬁnancial responsibility on the vehicle being

operated.   A lawful inventory of the Defendant’s vehicle was performed
pursuant to Tyler Police Department’s standardized policy. Ofﬁcer Boyce

was acting in good faith and was not motivated by a desire to uncover

evidence.   A green leafy substance suspected to be marijuana was found
during the inventory.”

      The trial cou1t’s Conclusion’s of Law # 3-5          states that   “a green leafy

substance believed to be marijuana was uncovered during a lawful inventory

pursuant to standardized Tyler Police Department guidelines. The

Defendant’s vehicle was lawfully towed pursuant to Tyler Police

                                           27
Department General Order 07.504(C) and 07.504(D). Officer Boyce

conducted an inventory of the Defendant’s vehicle in compliance with

written Tyler Police Department policy.        The substance believed to be

marijuana was obtained pursuant to a lawful impoundment and inventory of

the Defendant’s vehicle and therefore the Defendant’s           Motion to Suppress        is


DENIED.”

      The trial court did not take into account 7.502 Policy. “Enforcement

action shall be taken   when   officers encounter individuals      who fail to
maintain the required ﬁnancial responsibility unless mitigating

circumstances discussed in this policy exist.”

      This 7.502 Policy   is   the   summary of this General     Order.   It is   clear

that ofﬁcers cannot   tow the vehicle     if there are mitigating circumstances.


The towing policy is designed for vehicles that cannot be          legally driven.

However, the owner of the vehicle, Juan Zepeda, had the required insurance

and could have driven the vehicle away without an impoundment. This                  is


clearly a mitigating circumstance.

      Even reviewing the evidence in the        light   most favorable to the trial

court’s ruling, the evidence does not support those factual ﬁndings.


Furthermore, the evidence does not satisfy the Garza standards. The               trial


                                     28
 court’s conclusions are not supported         by the record and     are not correct under

 any legal theory because the policy was not followed. There was insurance

on the Vehicle, the owner had proper insurance, and no mitigating

circumstances were considered.

          Simply put, the ofﬁcer’s actions were not reasonable nor is the

language of the policy reasonable. Reasonableness dictates that the ofﬁcer

allow Appellant        call the authorized driver   and owner of the Vehicle to come

to the scene    and pick up the    car.   Reasonableness dictates that no

impoundment occur.

                                            PRAYER
         WHEREFORE, Appellant prays the Order of the trial court denying
Appellant’s Motion to Suppress Evidence be reversed and remanded to the

trial   court for a   new trial with orders the Motion to        Suppress Evidence be

GRANTED and for such other and further relief to which Appellant may be
justly entitled.


                                                         Res ectfully/ybmitted,


                                                     IE
                                                     ~
                                                                 SANDERS          ~
                                                           Bar No.2 24033153
                                                         State
                                                     120 S. Broadway, Suite 1l2
                                                     Tyler, Texas 75702
                                                     (903) 593—so40
                                                     (903) 595-5532 fax
                                      29
                        CERTIFICATE OF SERVICE
      I,                          do hereby certify a true and correct copy
           the undersigned attorney,
of the foregoing instrument was served upon the Smith County District
Attorney’s Office by hand delivery on this the 10th day of June, 2015.


                                                     ﬁzlf /wméw
                                              JEFF   SANDERS
                     CERTIFICATE OF COMPLIANCE
       Pursuant to Rule 9.4(i)(3), the undersigned attorney certiﬁes that this
brief complies with the length requirements of the Texas Rules of Appellate
Procedure in that the brief has 6,573 words.

                                                           I        E

                                             JEF     SANDERS




                                       30
