NO. 03-13-00724-CR 

IN THE COURT OF APPEALS 

OF THE THIRD DISTRICT OF TEXAS 

STEPHEN TRACY MEREDITH, 

Appellant 

V. 

THE STATE OF TEXAS 

Appellee 

Appeal in Cause No. 41286 in the 

424* Judicial District Court of Burnet County, Texas 

Brief For Appellee 

OFFICE OF DISTRICT ATTORNEY 

3 3^ and 424* JUDICIAL DISTRICTS 

Wiley B. McAfee, District Attorney 

P. O. Box 725, Llano, Texas 78643 

Telephone Telecopier 

(325) 247-5755 (325) 247-5274 

g.bunyard@co.llano.tx.us 

By: Gary W. Bunyard 

Assistant District Attorney 

State Bar No. 03353500 

ATTORNEY FOR APPELLEE 

January 7,2015 

Oral Argument Waived 

ACCEPTED

03-13-00724-CR

3685444

THIRD COURT OF APPEALS

AUSTIN, TEXAS

1/7/2015 3:27:48 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/7/2015 3:27:48 PM JEFFREY D. KYLE Clerk
Identity Of The Parties 

Trial Court 

Honorable Daniel H. Mills 

424* Judicial District 

Burnet County Courthouse Annex (North) 

1701 East Polk St., Suite 74 

Burnet, TX 78611 

State/Appellee 

Richard Crowther (Pretrial Counsel) 

Assistant District Attorney 

P. O. Box 725 

Llano, Texas 78643 

(325) 247-5755 

State Bar No. 05174200 

Peter Keim (Trial Counsel) 

Assistant District Attorney 

P. O. Box 725 

Llano, Texas 78643 

(325) 247-5755 

State Bar No. 15532500 

Blake Ewing (Trial Counsel) 

Assistant District Attorney 

P. O. Box 725 

Llano, Texas 78643 

(325) 247-5755 

State Bar No. 24076376 

ii 
Gary W. Bunyard (Appellate Counsel) 

Assistant District Attorney 

P. O. Box 725 

Llano, Texas 78643 

(325) 247-5755 

State Bar No. 03353500 

g.bunyard@co.llano.tx.us 

Appellant 

Michelle Moore (Trial Counsel) 

Public Defender 

1008 N. Water St. 

Burnet, TX 78611 

(512) 234-3061 

State Bar No. 00798294 

Michael Watson (Pretrial and Trial Counsel) 

Assistant Public Defender 

1008 N. Water St. 

Burnet, TX 78611 

(512) 234-3061 

State Bar No. 24060804 

Gary E. Prust (Appellate Counsel) 

Attorney at Law 

1607 Nueces St. 

Austin, TX 78701 

(512) 469-0092 

State Bar No. 24056166 

gary@prustlaw. com 

iii 
Stephen Tracy Meredith (Appellant) 

TDCJ #01893438 

SID #05359672 

Nathaniel J. Neal Unit 

9055 Spur 591 

Amarillo, TX 79107-9696 

iv 
Table Of Contents 

Page 

Index of Authorities vi 

Statement of the Case 2 

Statement on Oral Argument 2 

Response to Issues Presented 3 

Statement of the Facts 4 

Summary of the Argument - Response to Issue No. 1 10 The trial court properly denied Appellant's 

motion to suppress because the totality of the 

circumstances provided officers probable 

cause to believe that Appellant had narcotics 

hidden in the impounded vehicle. 

Argument on Response to Issue No. 1 11 

Prayer for Relief 16 

Certificate of Word Count 16 

Certificate of Service 17 

V 
Index Of Authorities 

Case Law Page 

Carroll v. United States. 267 U.S. 132; 45 S. Ct. 280; 

69L. Ed. 543 (1925) 11 

Florida V. Mevers. 466 U.S. 380; 104 S. Ct. 1852; 

80 L. Ed. 2d 381 (1984) 11,12, 14 

Guzman V. State. 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) 12 

Michigan V. Thomas. 458 U.S. 259; 102 S. Ct. 3079; 

73 L. Ed. 2d 750 (1982) 12 

State V. Clack, 13-13-00345-CR (unpublished memorandum) 12, 13 

State V. Elias. 339 S.W.3d 667 (Tex. Crim. App. 2011) 12 

State V. Ross. 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) 12 

vi 
Constitutions 

UNITED STATES CONST. Amend IV 11 

TEXAS CONST, art. 1 §9 11 

Statutes/Rules 

TEX. R. APP. PROC. 34.2 4 

TEX. R. APP. PROC. 34.5(e) 4 

vii 
NO. 03-13-00724-CR 

IN THE 

COURT OF APPEALS 

OF THE THIRD DISTRICT OF TEXAS 

STEPHEN TRACY MEREDITH, 

Appellant 

V. 

THE STATE OF TEXAS 

Appellee 

Appeal in Cause No. 41286 

in the 424* Judicial District Court of 

Burnet County, Texas 

BriBf For Appellee 

To The Honorable Justices Of Said Court: 

Now comes the State of Texas, hereinafter called Appellee, and submits this 

brief pursuant to the provisions of the Texas Rules of Appellate Procedure in support 

of the State's request affirm the judgment of the trial court. 

1 
statement Of The Case 

Appellant has adequately described the Statement of the Case. 

Statement on Oral Argument 

The xmdersigned waives Oral Argument. The undersigned does not believe that 

Oral Argument will be beneficial for this case for the reason that the issues are straight 

forward and lack any novel or complex nuances. Should the Court believe that Oral 

Argument will assist the Court in any way, the undersigned will accommodate the 

Court. 

2 
Response To issues Presented 

Response To Issue One: The trial court properly denied Appellant's motion to 

suppress because the totality of the circumstances provided 

officers probable cause to believe that Appellant had 

narcotics hidden in the impounded vehicle. 

3 
statement Of Tfte Facts 

Appellant has not accurately described the facts of this case. The State of Texas 

does join with Appellant to stipulate to the recreation of the charge and jury forms, the 

originals of which can not be located by the district clerk and are therefore not included 

in the original Clerk's Record. Supp RR Vol. Ill Exh. 1 and 2; TEX. R. APP. PROC. 

34.2, 34.5(e). 

Appellant was indicted on April 2, 2013, for the offense of Possession of a 

Controlled Substance, Cocaine, in an amount of less than one gram and the Indictment 

further alleged that prior to the commission of this offense Appellant has been 

previously convicted of four state jail offenses. CR Vol. 1 Pages 4-5. Appellant 

filed a motion to suppress evidence on September 4,2013. CR Vol. 1 Page 10. The 

trial court conducted a hearing on the motion to suppress on September 11,2013. RR 

Vol. 2. 

At the hearing the parties stipulated that (1) there was a warrantless search of 

the vehicle (RR Vol. 2 Page 5), (2) the vehicle was impounded because the driver did 

not have a valid driver's Hcense (RR Vol. 2 Pages 5, 8 - 9), and (3) shortly after the 

vehicle was impounded officers used a K-9 to conduct a fi-ee air sniff during which the 

K-9 alerted but the subsequent search of the vehicle yielded no narcotics. RR Vol. 2 

4 
Pages 5 - 9. The officers also conducted an inventory search which yielded drug 

paraphernalia but did not yield any narcotics. RR Vol. 2 Pages 5-9. The impound 

facility was owned and operated by Deputy Constable Garry Adams. RR Vol. 2 Pages 

10-11. 

Just imder two weeks later, after Appellant had been released on bond. 

Appellant was allowed access to his vehicle to retrieve personal items as Appellant was 

unable to claim possession of the vehicle itself at that time. RR Vol. 2 Page 11. 

While Appellant and his companion were inside the vehicle locating and retrieving 

items of personal property. Deputy Constable Adams was standing at the front door of 

the vehicle supervising the actions of Appellant and his companion. RR Vol. 2 Page 

11. Appellant was retrieving items from the driver's seat area of the front passenger 

compartment while the companion was retrieving items from the back area of 

Appellant's Suburban. RR Vol. 2 Pages 5, 15. Deputy Constable Adams observed 

Appellant heavily tugging at the front of the storage console attached to the headliner 

of the vehicle. RR Vol. 2 Pages 11, 18 - 19. Deputy Constable Adams directed 

Appellant to stop pulling on the storage console to avoid damage to the vehicle while 

it is in impound and Appellant complied. RR Vol. 2 Page 11. 

5 
Presumably after Appellant and his companion left the facility. Deputy 

Constable Adams contacted Burnet County Sheriffs Deputy Bindseil and reported that 

based on his previous training Deputy Constable Adams believed, from what he had 

observed of Appellant's actions, that there were narcotics still in Appellant's vehicle. 

RR Vol. 2 Page 12. The next day Deputy Constable Adams gave access to the interior 

of Appellant's vehicle to Officer Wills and Officer Fritsch. RR Vol. 2 Page 13. 

Officer Fritsch, seated in the driver's seat, tugged at the front of the storage console in 

the headliner in the same fashion that Deputy Constable Adams observed Appellant 

doing, and an item/material fell out. RR Vol. 2 Page 13. On cross-examination 

Deputy Constable Adams testified that the impound facility is fenced, locked, and not 

open to the general public. RR Vol. 2 Page 14. Appellant's vehicle was locked at all 

times with the key in a locked box in Deputy Constable Adams' office. RR Vol. 2 

Page 13. 

Deputy Constable Adams fiirther testified that the manner in which Appellant 

was pulling at the storage console was different from an attempt to open the 

compartments built into the console. RR Vol. 2 Page 18-21. Based on his training 

and experience Deputy Constable Adams was familiar with the practice of hiding 

narcotics in secret storage areas within vehicles. RR Vol. 2 Page 21. Deputy 

Constable Adams testified he has been in law enforcement 18 years, has attended 
multiple schools in narcotics investigation, and has assisted DPS and other law 

enforcement officers with numerous stops over the past ten years. RR Vol. 2 Pages 

22-23. 

Deputy Bindseil testified that he has been a trained K-9 handler for ten years. 

RR Vol. 2 Page 25. Deputy Bindseil testified that his current K-9 partner, Ringo, was 

initially trained as a patrol dog in Europe and then further trained for narcotics 

detection at the Hill Country Dog Center and has been working in the field with 

Deputy Bindseil since 2007. RR Vol. 2 Page 26. Ringo does annual certification in 

both narcotics and patrol work which is supplemented by monthly training. RR 

Vol. 2 Page 28. Deputy Bindseil testified that he received a call on June 7, 2012, to 

go to the impound lot and have Ringo conduct a free air sniff around Appellant's 

vehicle. RR Vol. 2 Page 27. Ringo alerted at the driver's side door. RR Vol. 2 

Page 27. 

After summarizing the evidence (RR Vol. 2 Pages 33 - 34) the trial court denied 

Appellant's motion to suppress and made the following findings: 

1. There was probable cause articulated by the dog; 

2. The furtive gestures then seen subsequent create the totality of 

circumstance where that justified the subsequent search; 

7 
3. The officer is well trained and knows these furtive gestures, has seen 

them in the past; and 

4. There was probable cause to execute the search. 

RR Vol. 2 Page 37. 

At trial Burnet Police Officer Noland Hicks testified he stopped Appellant for 

driving with an invalid driver's license. RR Vol. 4 Page 22. In preparation for 

towing Appellant's Suburban officers conducted an inventory search during which 

officers located a pair of blue jeans containing two plastic baggies with suspicious 

residue which the officers considered to be drug paraphernalia and a white towel 

wrapped around a clear glass pipe with a bowl on the end that is commonly used in 

smoking methamphetamine and cocaine. RR Vol. 4 Pages 24-26. Deputy Bindseil 

testified about being called to the impound lot, running Ringo around Appellant's 

vehicle, and Ringo alerting on the vehicle. RR Vol. 4 Pages 41 - 45. Investigator 

Wills then testified about conducting the unsuccessful search following the K-9 alert. 

RR Vol. 4 Pages 55 -57. Investigator Wills then testified about returning to the 

impound lot after receiving notice from Deputy Constable Adams of Appellant's 

suspicious conduct when retrieving personal property from the vehicle and finding a 

baggy containing an off-white rock-like substance suspected to be cocaine. RR Vol. 

4 Pages 58-60. Investigator Wills took the substance to the DPS lab for testing. RR 

8 
Vol. 4 Page 61. The DPS forensic scientist testified that the substance submitted was 

0.14 grams containing cocaine. RR Vol. 4 Page 80. At the time that the actual 

substance, State's Exhibit Eight, was offered in evidence Appellant reurged his motion 

to suppress which the trial court denied and the exhibit was admitted into evidence. 

RR Vol. 4 Page 82. 

9 
Summary Of The Argument on 

Response to issue No. i 

(1) The trial court properly denied Appellant's motion to 

suppress because the totality of the circumstances provided 

officers probable cause to believe that Appellant had narcotics 

hidden in the impounded vehicle. 

Appellant complains that the trial court should have granted Appellant's motion 

to suppress because any probable cause that officers had developed at the time that the 

vehicle was impounded became stale due to passage of time and the officers were 

required to obtain a search warrant to conduct a subsequent search of Appellant's 

impounded vehicle. However, officer's observation of Appellant attempting to access 

what appeared to the officer as a hidden compartment while Appellant was later 

removing personal items from the impounded vehicle, coupled with prior information 

gathered, including the free air sniff alert, provided officers adequate probable cause 

to believe that contraband was stored in a hidden compartment above the storage unit 

attached to the headliner of Appellant's vehicle. 

10 
Argument On Response to Issue No. 1 

It is well known that the general rule of law is that a citizen shall be free from 

government intrusion without a warrant. UNITED STATES CONST. Amend IV; 

TEXAS CONST, art. 1 § 9. Both federal and state courts have recognized that the 

citizen's right to an expectation of privacy in an automobile is much lower. Carroll 

V. United States. 267 U.S. 132; 45 S. Ct. 280; 69 L. Ed. 543 (1925). Where the facts 

and circumstances within police officers' knowledge and of which they had reasonably 

trustworthy information are sufficient in themselves to warrant a man of reasonable 

caution in the belief that contraband is being transported in the automobile which the 

officers stop and search, the officers are justified in conducting the search. Carroll 

V. United States. 267 U.S. at 162. 

In a case occurring in Florida, the defendant was stopped in his car and arrested 

for sexual battery. Florida v. Mevers. 466 U.S. 380; 104 S. Ct. 1852; 80 L. Ed. 2d 

381 (1984). At the time of his arrest, police officers searched his automobile and 

seized several items. Florida v. Meyers. 466 U.S. at 380. The vehicle was then towed 

where it was impounded in a locked, secure area. Supra. Approximately eight hours 

later, a police officer went to the compound and, without obtaining a warrant, searched 

the car for a second time. Additional evidence was seized. Supra. In its judgment 

reversing the trial court's suppression of the evidence, the Supreme Court pointed out 

11 
its holding in the Thomas case (Michigan v. Thomas. 458 U.S. 259 1982 ) in which 

the Court upheld a warrantless search of an automobile even though the automobile 

was in police custody and even though a prior inventory search had akeady been made. 

Florida v. Meyers. 466 U.S. at 382. The Court emphasized that the justification to 

conduct such a warrantless search does not vanish once the car has been immobilized. 

Supra. 

A review of a trial court's ruling on a pretrial motion to suppress is well 

established. 

(1) The appellate courts, including this Court, should afford ahnost total 

deference to a trial court's determination of the historical facts that the 

record supports especially when the trial court's fact findings are based 

on an evaluation of credibility and demeanor. (2) The appellate court 

should afford the same amount of deference to trial courts' rulings on 

"application of law to fact questions," also known as "mixed questions of 

law and fact," if the resolution of those ultimate questions turns on an 

evaluation of credibility and demeanor. (3) The appellate courts may 

review de novo "mixed questions of law and fact" not falling within this 

category. 

State V. Ross. 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (quoting Guzman v. State. 

955 S.W.2d 85, 89 [Tex. Crim. App. 1997]); State v. Elias. 339 S.W.3d 667 (Tex. 

Crim. App. 2011). 

Appellant seeks to rely on the unpublished memorandum decision of the 

Thirteenth Court of Appeals numbered 13-13-00345-CR styled State v. Clack. The 

Clack case can not properly be compared to the instant case because of the diversity 

12 
of the case facts, hi Clack the Court pointed out that the defendant was not in or 

around the vehicle at the time of arrest and the vehicle was properly parked, was not 

impeding traffic, and there was no need to insure the protection of the vehicle so as to 

justify being towed and impounded. Further the facts of the case never rose to a level 

of probable cause to believe that evidence of a crime was located within the vehicle. 

In the case under present consideration Appellant was driving his vehicle and, 

upon his arrest for driving without a valid driver's license, it was necessary to tow and 

impound the vehicle to safeguard the vehicle and to allow for proper flow of traffic. 

During the inventory search officers located drug paraphernalia within the vehicle. 

Once the vehicle was secured in the impound lot the K-9 alerted at the driver's door 

of the vehicle giving officer's probable cause to believe that narcotics were located 

within the vehicle. A search of the obvious areas within the vehicle did not result in 

discovery of any narcotics. Later, while the vehicle was still in a secured area with no 

suggestion of the vehicle having been disturbed or tampered with. Appellant, while 

retrieving personal property, was observed attempting to pull down a storage 

compartment built into the headliner of the vehicle. The furtive acts of Appellant 

suggested to Deputy Constable Adams that Appellant had something hidden between 

the storage compartment and the roof of the vehicle, an area that is not typically 

accessible to the operator of the vehicle without causing damage to the vehicle. Such 

13 
furtive acts by Appellant gave officers reason to believe that the initial alert of the K-9 

was indeed a positive alert and allowed officers to go directly to Appellant's hiding 

spot and retrieve the narcotics hidden there. 

As pointed out by Appellant, the trial court, in denying Appellant's Motion to 

Suppress, made the following findings at the conclusion of the suppression hearing: 

1. There was probable cause articulated by the dog, 

2. The furtive gestures then seen subsequent created the totality of the 

circumstance where that justified the subsequent search, 

3. The officer is well trained and knows these furtive gestures, has seen 

them in the past, 

4. So all together, the Court finds that there was probable cause to execute 

the search. 

RR Vol. 2 Pages 34, 37. 

In the Florida v. Meyers case cited herein above, the United States Supreme 

Court approved the officers' second search of the impounded vehicle 8 hours later 

based merely on the original probable cause facts. In our case, while there is a longer 

time gap there is also an intervening factor which relates back to the probable cause 

developed through the K-9 alert giving officers a better indicator of where the narcotics 

could be found. 

14 
There being no controverting facts admitted as evidence or any other factor or 

suggestion that the historical facts heard by the trial court were false or misleading, this 

Court should give the trial court total deference of the trial court's fact findings as they 

are based on the credibility and demeanor of the testifying witnesses. The Court 

should further give the trial court total deference of the trial court's rulings on 

application of law to the instant fact questions as the resolution of those ultimate 

questions turned on an evaluation of credibility and demeanor of the testifying 

witnesses. There was no indication in the evidence adduced at trial that any of the 

evidence admitted during the suppression hearing was false or misleading. 

For these reasons the relief sought by Appellant in his Issue Presented must be 

denied and the judgment of conviction and sentence be affirmed. 

15 
PRAYER FOR RELIEF 

WHEREFORE, PREMISES CONSIDERED, Appellee prays the Court deny 

Appellant's appeal and affirm the judgment of the trial court. 

Respectfully submitted, 

OFFICE OF DISTRICT ATTORNEY 

3 3^ and 424* JUDICIAL DISTRICTS 

Wiley B. McAfee, District Attorney 

P. O. Box 725 

Llano, Texas 78643 

Telephone Telecopier 

(325) 247-5755 (325) 247-5274 

mm 

Assistant District Attorney 

State Bar No. 03353500 

g.bunyard@co.llano.tx.us 

ATTORNEY FOR APPELLEE 

CERTIFICATE OF WORD COUNT 

This is to certify that the pertinent portion of this brief contains 2,597 words 

printed in Times New Roman 14 font according to the WordPerfectTM X7 word count 

tool. 

16 
CERTIFICATE OF SERVICE 

This is to certify that a true copy of the above and foregoing instrument, together 

with this proof of service hereof, has been forwarded by standard mail on the 7th day 

of January 2014, to Mr. Gary E. Prust, Attorney for Appellant, by email and by 

EServe. 

Assistant District Attorney 

17