In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-18-00379-CR

___________________________

On Appeal from the 371st District Court

Tarrant County, Texas

Trial Court No. 1524482D

Before Sudderth, C.J.; Gabriel and Kerr, JJ.

Memorandum Opinion by Chief Justice Sudderth

MARC ANTHONY RAYOS, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION ON REHEARING

Appellant Mark Anthony Rayos filed a motion for rehearing of our September 

5 memorandum opinion and judgment. We deny the motion but withdraw our prior 

opinion and substitute the following in its place. With the exception of two footnotes 

added to address Appellant’s argument for rehearing and a typographical correction,

our opinion remains otherwise unchanged.

In two issues, Appellant appeals his conviction for possession of a controlled 

substance with intent to deliver. See Tex. Health & Safety Code Ann. § 481.112. We 

affirm. 

Background

Appellant appeals the trial court’s denial of his motion to suppress evidence of 

drugs discovered when officers searched his vehicle after arresting him for public 

intoxication. The facts, as testified to by Euless Police Department Officer Shawn 

Buschee and Officer Patrick Cunningham and as depicted in the recording of a body

camera worn by Officer Buschee’s partner, Officer Mitchell, are undisputed. 

I. The arrest 

In the early hours of November 11, 2017, a concerned citizen called 911 to 

report a vehicle parked at a RaceTrac gas station with two flat tires and body damage

and an apparently impaired driver possibly in need of medical attention. When 

Officer Buschee and Officer Mitchell arrived, they observed Appellant standing 

outside of a pickup truck with body damage and two flat tires on the passenger side. 
3

Officer Buschee testified that he immediately noticed that Appellant’s speech was 

slurred, he was “somewhat unsteady on his feet,” and his breath smelled of alcohol. 

Appellant admitted to Officer Mitchell that he had had about ten drinks that 

evening. After administering a horizontal gaze nystagmus (HGN) test and observing

all six possible clues of intoxication, Officer Buschee placed Appellant under arrest 

for public intoxication. At the time of arrest, Office Buschee explained to Appellant

that he would probably spend about six hours in jail before being released later that 

morning. 

II. The vehicle search

On the video, Appellant told Officer Mitchell that he was waiting for his wife1

to pick him up. When the officers asked if he needed anything out of the truck—like 

his cell phone—Appellant responded, “No. My wife has it.” When Officer Mitchell 

asked how Appellant called his wife to come pick him up at the RaceTrac if his wife 

had the phone, Appellant responded that he had called his wife before he left his 

friend’s house earlier and said he was on his way home but acknowledged that she 

could not know that he had damaged the truck and was now at the RaceTrac. After 

they frisked Appellant and before they moved him to the patrol car, Officer Buschee 

pointed out that the truck was damaged, to which Appellant responded, “Yeah, it’s 

 

1Appellant initially referred to a “girlfriend” but later referred to his “wife.” 

From the context, it appears he was referring to one person. For simplicity, we will 

refer to her as his wife.
4

f***** up,” and admitted that he did not have two spare tires to change both flats. 

When Officer Buschee asked, “Are the keys in it, is it locked up?” Appellant 

answered, “No.” When Officer Buschee asked where the keys were, Appellant 

responded that he did not know and did not have them on him. Officer Buschee 

directed Officer Mitchell to look in the truck for the keys, and upon opening the truck 

door, Officer Mitchell smelled an odor of marijuana. He then found a scale, and

inside the truck console, he found a baggie of cocaine, a jar full of marijuana, and

bundles of cash. 

At the hearing, Officer Buschee testified that he directed Officer Mitchell to get 

the keys because the vehicle was going to be impounded and inventoried pursuant to 

EPD policy allowing the impoundment of inoperable vehicles or if the driver is 

placed under arrest. The State introduced evidence of EPD policy allowing police to 

impound a vehicle when a driver is arrested or if “a vehicle is rendered inoperable due 

to an accident.”

III. The arguments and ruling

At the hearing, Appellant argued that the officers did not have probable cause 

to search the vehicle and that the EPD impoundment policy was improper because it 

allowed the officers unlimited discretion to search and inventory a vehicle without 

probable cause. The trial court disagreed, denied the motion to suppress, and found 

that “the vehicle was subject to discretionary impoundment based on the policies that 

have been introduced.” This appeal followed. 
5

Discussion

Appellant brings two issues on appeal.2 In his first, he argues that the EPD 

impoundment and inventory policy cannot justify Officer Mitchell’s search of the 

truck because the policy allows the officers “unlimited discretion.” In his second, he 

challenges the inventory of the truck on the basis that it was the fruit of an unlawful 

seizure of the truck and on the basis that the officers allegedly did not follow EPD 

inventory-search protocol. 

I. Standard of Review

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

suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); 

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer almost totally to 

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

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

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

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

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

Stated another way, when reviewing the trial court’s ruling on a suppression 

motion, we must view the evidence in the light most favorable to the ruling. Wiede, 

 

2Appellant organized his argument in two issues but listed five issues in his 

“Issues Presented.” Because we have determined that his list of five issues is merely 

listing subissues of his two overall issues, we have organized this opinion to follow the 

organization of the brief.
6

214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When 

the record is silent on the reasons for the trial court’s ruling, or when there are no 

explicit fact findings and neither party timely requested findings and conclusions from 

the trial court, we imply the necessary fact findings that would support the trial court’s 

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

supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 

2008); see Wiede, 214 S.W.3d at 25. We then review the trial court’s legal ruling 

de novo unless the implied fact findings supported by the record are also dispositive 

of the legal ruling. Kelly, 204 S.W.3d at 819. Even if the trial court gave the wrong 

reason for its ruling, we must uphold the ruling if it is both supported by the record 

and correct under any applicable legal theory. State v. Stevens, 235 S.W.3d 736, 740 

(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 

2003).

II. The impoundment 

To be lawful, a decision to impound a vehicle must be reasonable under the

Fourth Amendment. Roberts v. State, 444 S.W.3d 770, 775 (Tex. App.—Fort Worth

2014, pet. ref’d). The State bears the burden to prove a lawful impoundment. Id. 

Whether an impoundment is reasonable is a question of law that we review de novo, 

measuring reasonableness by examining the totality of the circumstances. Ohio v. 

Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421 (1996); see also Kothe v. State, 152 S.W.3d 

54, 62–63 (Tex. Crim. App. 2004). In the process we must balance the public interest 
7

and the individual’s right to be free from arbitrary detentions and intrusions. Kothe, 

152 S.W.3d at 63. Nevertheless, we have previously noted the significantly lower 

degree of privacy one should expect when it comes to his vehicle compared to his 

home or office and that vehicles are subject to pervasive and continuing governmental 

regulation and controls. Roberts, 444 S.W.3d at 774 (citing South Dakota v. Opperman, 

428 U.S. 364, 367–68, 96 S. Ct. 3092, 3096 (1976)). 

The court of criminal appeals has observed that there are many circumstances 

under which law enforcement may reasonably impound a vehicle, including (1) the 

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. Id. at 776 (citing Benavides 

v. State, 600 S.W.2d 809, 811 (Tex. Crim. App. [Panel Op.] 1980); and Opperman, 428 

U.S. at 368–69, 96 S. Ct. at 3097) (explaining that in the interest of public safety and 

as part of a community caretaking function, vehicles are frequently taken into police 

custody for, among other things, vehicle accidents and other caretaking and trafficcontrol activities).

Appellant argues that the EPD impoundment policy cannot justify the 

impoundment of Appellant’s truck because it leaves the decision to impound a vehicle 

to the “unfettered discretion” of police officers. This argument has been previously 

rejected, and we do not find Appellant’s attempt to resurrect it convincing. See 
8

Colorado v. Bertine, 479 U.S. 367, 375, 107 S. Ct. 738, 743 (1987) (rejecting argument 

that inventory search of van was unconstitutional “because departmental regulations 

gave the police discretion to choose between impounding the van and parking and 

locking it in a public parking place”). As the United States Supreme Court explained

in Bertine, “Nothing . . . prohibits the exercise of police discretion so long as that 

discretion is exercised according to standard criteria and on the basis of something 

other than suspicion of evidence of criminal activity.” Id., 107 S. Ct. at 743.3In that 

case, the court declined to find a violation of the Fourth Amendment when “[t]here 

was no showing that the police chose to impound [the defendant]’s van in order to 

investigate suspected criminal activity.” Id. at 376, 107 S. Ct. at 743.4

 

3

In his motion for rehearing, Appellant argues that we have misconstrued 

Bertine and his argument regarding the EPD impoundment policy, and that the EPD 

policy is “deficient because it does not contain certain criteria relating to the feas[i]bility 

and appropriateness of leaving the vehicle rather than impounding it.” But Appellant’s 

interpretation of Bertine is wrong. The Supreme Court noted that the police policy at 

issue in Bertine allowed police officers the discretion to impound a vehicle or park and 

lock it in a public place, but the Supreme Court did not hold that police impoundment 

policies must include such a provision specifically requiring officers to evaluate the 

feasibility of parking the vehicle in a public place. Id. And we note that nothing in 

the EPD policy restricts the officer’s discretion to consider the feasibility and 

appropriateness of leaving a vehicle. 

4Appellant also relies heavily on United States v. Duguay, 93 F.3d 346 (7th Cir.

1996), to support his argument, but it is easily distinguishable from the case at hand. 

In Duguay, there was no written police policy or “well-honed department routine”

regarding impoundment in effect at the time of the arrest, impoundment, and 

inventory search. Id. at 351. And the two arresting officers’ explanations for 

impounding the defendant’s car conflicted. Id. at 352.
9

In this case, the State provided evidence of EPD’s written policy allowing

officers to impound vehicles if the driver has been placed under arrest or if the 

driver’s vehicle is rendered inoperable due to an accident. Officer Buschee testified 

that he impounded the truck because it was inoperable and Appellant was under 

arrest, and there is no evidence that Officer Buschee or Officer Mitchell acted in bad 

faith or used the policy as an excuse to search for additional evidence of a crime. See 

id. There is no dispute that Appellant’s truck was inoperable—Appellant admitted as 

much at the scene. The trial court could have found that the officers were entitled to 

disbelieve Appellant’s statement that his wife was on the way and therefore 

determined that nobody was en route to repair or retrieve the truck. See Uballe v. State, 

No. 07-13-00127-CR, 2014 WL 1829849, at *1–2 (Tex. App.—Amarillo May 6, 2014, 

no pet.) (mem. op., not designated for publication) (holding that impoundment was 

reasonable when appellant was arrested, no other driver was present to take 

possession of the vehicle, and appellant did not argue that there were alternatives to 

impounding the vehicle). Appellant asks us to conclude that the officers could have 

left the truck in the RaceTrac parking lot, but that is not the standard to be applied. 

We are required to view the evidence in the light most favorable to the trial court’s 

implied factual findings, and here the trial court could have reasonably concluded that 

the RaceTrac was not a safe place to leave the unlocked5and damaged truck.6 See also 

 

5

In this respect, Appellant’s argument as he reurges it in his motion for 

rehearing again misses the mark. Appellant insists that the EPD policy is deficient 
10

Bertine, 479 U.S. at 374, 107 S. Ct. at 742 (“The reasonableness of any particular 

governmental activity does not necessarily or invariably turn on the existence of 

alternative ‘less intrusive’ means.”) (quoting Illinois v. Lafayette, 462 U.S. 640, 647, 103 

S. Ct. 2605, 2610 (1983)). 

We therefore overrule Appellant’s arguments challenging the impoundment of 

his vehicle. 

III. The inventory search

Appellant’s challenge of the search of his pickup truck is three-fold: first, he 

argues that the inventory search was unlawful because the impoundment was 

 

because it does not require police to evaluate the feasibility and appropriateness of 

leaving the vehicle, relying on Bertine. Not only does he misinterpret Bertine, but if the 

EPD policy had a provision similar to that at issue in Bertine (allowing officers to 

choose between “parking and locking” a vehicle instead of impounding it), the result in 

this case would be the same. See Bertine, 479 U.S. at 375, 107 S. Ct. at 743 (emphasis 

added). Appellant’s truck was unlocked and his keys were not on his person. If the 

officers had decided to leave the truck, it is reasonable to expect that they would have 

opened the truck to find the keys in order to lock it, and in doing so, they would have 

smelled the marijuana. Cf. id. at 372, 107 S. Ct. at 741 (recognizing deference 

accorded to “police caretaking procedures designed to secure and protect vehicles and 

their contents”).

6We are not swayed by Appellant’s reliance on decisions from other 

jurisdictions indicating that an impoundment is not reasonable when a defendant is 

arrested for a low-level offense that risks a short amount of time spent in custody. Cf. 

Roberts, 444 S.W.3d at 775–76 (upholding impoundment after initial arrest for expired 

registration, lack of a valid driver’s license, and no proof of financial responsibility);

Josey v. State, 981 S.W.2d 831, 836 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) 

(discussing impoundment after arrest for minor traffic violations).
11

unlawful. Because we have overruled his challenge to the impoundment of the 

vehicle, we overrule this argument. 

In his second argument, Appellant challenges the search on the basis that the 

inventory search was not conducted pursuant to EPD policy requiring a written 

“vehicle inventory sheet.” But Appellant did not present this argument to the trial 

court. To preserve a complaint for our review, a party must have presented to the 

trial court a timely request, objection, or motion stating the specific grounds, if not

apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v. 

State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). We therefore overrule this 

portion of Appellant’s argument.

Finally, Appellant argues that the search was not justified under the automobile 

exception because the officers did not have probable cause to search the vehicle until 

they had already opened the truck door. But we have already held that the 

impoundment of the vehicle was lawful, thereby permitting the officers to open the 

truck door to begin an inventory search. See Moskey v. State, 333 S.W.3d 696, 700 (Tex. 

App.—Houston [1st Dist.] 2010, no pet.) (“A police officer’s inventory of the 

contents of an automobile is permissible under the Fourth Amendment if conducted 

pursuant to a lawful impoundment of the vehicle.”) (citing Opperman, 428 U.S. at 375–

76, 96 S. Ct. at 3100; Benavides, 600 S.W.2d at 810; and Garza v. State, 137 S.W.3d 878, 

882 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d)). Once Officer Mitchell opened 

the truck door and smelled the odor of marijuana, he had probable cause to search the 
12

vehicle under the automobile exception. See Bogan v. State, No. 02-15-00354-CR, 2016 

WL 1163725, at *2 (Tex. App.—Fort Worth Mar. 24, 2016, pet. ref’d) (mem. op., not 

designated for publication) (“The smell of marijuana alone is sufficient to constitute 

probable cause to search a defendant’s person, vehicle, or objects within the vehicle.”) 

(citing Small v. State, 977 S.W.2d 771, 774–75 (Tex. App.—Fort Worth 1998, no pet.); 

Luera v. State, 561 S.W.2d 497, 498 (Tex. Crim. App. 1978)). We therefore overrule 

the remainder of Appellant’s second issue.

Conclusion

Having overruled Appellant’s arguments, we affirm the trial court’s judgment. 

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: November 14, 2019