Jorge Zepeda v. State ( 2015 )


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  •                                                                                     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 Fla. 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