## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 1 8

- 00379

- CR

___________________________

On Appeal from the 371s t District Court Tarrant County, Texas Trial Court No

. 1524482D
Before Sudderth, C.J.; Gabriel and Kerr, JJ. Memorandum Opinion by Chief Justice Sudderth 

### M A RC 

### A NTHONY 

### R

AYOS 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION ON REHEARING Appellant Mark Anthony Rayos filed a motion for rehearing of our September
5 memorandum opi nion and judgment. We deny the motion but withdraw our prior opinion and su bs titute the following in its place. With the exception of two footno tes add ed to address Appellant ’ s argument for rehearing and a typographical correction, our opinion remains otherwise un changed.
In two issues , Appellant appeals his conviction for posses sion of a controlled
substance with intent to deliver. Se e Tex. Health & S af ety Code Ann. § 481.1 12 . We
affirm

. Background Appellant appeals the trial court ’ s denial of his motion to suppress evidence of drug s disco ve red w

hen officers searched his vehic le after arresting him for public
intoxication. The fact s , as testified to by Eul ess Police Department Officer Shawn
B uschee and Officer Patrick Cunningham and as depic ted in the recording of a body

camera worn by Offic er Buschee ’ s partner, Officer Mitche ll , are undisputed

. I. The arrest
I n the early hou rs of Nove mber 11, 2017, a concerned citizen called 911 to
report a vehicle parked at a RaceTra c gas s tation with two flat tires a nd body damage

a nd an ap pare ntly imp aire d driver possibly in need of medical at tention. When
Officer Buschee and Officer Mitc hell arrived, t he y observed Appellant standing outside of a pickup truck with body damage and two flat tir es on the passe n ger side.3

Officer Bus chee tes t

i fied that he immediately noticed that Appellant ’ s speech was slurred, he was “ som e what uns teady on his feet, ” and h is br e ath smelled of alco hol. Appel lan t admitted to Office r Mitchell that he had had about t en drinks that evening

. After adminis tering a h orizontal gaze nystagmus ( HGN) test and observ ing all six possible clues of intoxication , Officer B usc hee p laced Appellan t unde r arre st for public intoxication . At the ti me of arrest, Office Buschee explain ed to Appellant that he would probabl y spend abou t six hours in jail before being released later that morning.
II. The vehicle search
On the vide o, Appellant told O fficer Mitc hell that he was waiti ng for his wife 1 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 cal led his wife to come p ick him up at the RaceTrac if hi s wi fe
ha d the phone, Appellant responded that h e 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 da maged the truck and w as n o w at the Race Trac

. Aft er they frisked Appellant and before they moved him to t he patrol car, Officer Buschee pointed out that t he tr uck was damaged, to which Appellant responded, “ Yeah , it ’ s

1 Appellant initially re fer red to a “ girlf r iend ” but later re fer red to h is “ wife. ” F rom the co ntext, it appear s he was referring to one person . For simpli city, w e will refer to h er as his wif

e .4

f***** up, ” and admitted that he did n ot have two s pare t ires to change both flats.
W hen Officer Busc hee asked, “ Are t he 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 Busch ee directed Officer Mit chell to look in the truck for the keys , and upon opening the truck door, Officer Mitchell sm elled an odor of ma rijuana

. He then found a scal e , and
insid e the truck console, he found a baggie of cocaine , a jar ful l of marijuana , and
bundles of c ash

. At the hearing , Officer Buschee testified that he directed Officer Mitchell to get the keys because t he v ehicle w as going to be impounded and inventorie d pursuant to
EPD po licy allowing the impoundment of i noperable vehic les or if the driver is placed under arrest. The State introduced evidence of EPD polic y allowing police to impound a vehicle when a driver is arre sted or if “ a veh icle is rendered inoperable due

to an accident. ”
III. The argu ments and rul ing
At the hearing, Appell ant argued that th e offic ers did not have p robable cause
to search the vehicle and that the EPD impoundment policy was imprope r becau se it
allowed t he officers unlimit ed discretion to search and inventory a vehicle w ithout probable cause

. The tr ial court dis agreed , denied the motion to suppress, and found
that “ th e v ehicle was subject to discretionary impoundment based on the p olicies th at have be en introduced. ” This appeal followed.5 D iscussion
A ppellant b rings two issues on appeal. 2 In his first, he argues that t he EPD impoundment a nd inv entory policy cannot justif y Officer Mitch ell ’ s search of the
truck because t he policy allows th e officers “ unli mited discretion

. ” In his second, he challenges th e inventory of the truck on the bas is that it was the f ruit of a n un lawful seizure of the truck and on the basis that the officers allegedly di d not follow EPD
inven tory

- se arch protocol.
I. Standard of Review
W e apply a bifurcated standard of review to a trial court’s ruling on a motion to suppress eviden c e . 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 total ly t o a trial court’s rulings on questions of histori cal fact and application

- of

- law

- to

- fa ct questions that t u rn on evaluati ng credibility and demeanor, but we review de novo application

- of

- law

- to

- fact questions that do not t ur n on credibility and demeanor

. A mador , 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 supp ression motion, we must view the ev idence in the ligh t most favorable to the ruling

. Wiede ,

2 A ppellant organized his a rgument in two issues but list ed five i ssues in his

“ Issue s Presented. ” Beca use we have determined that his list of five issues is merely listing subissues of his two o v erall issues, we hav e organiz ed this opi nio n to follow the organization of the brie f.6

214 S.W.3d at 24; State v. K elly , 204 S.W.3d 80 8 , 818 ( Tex. Crim. App. 2006)

. When
the rec ord is silent on the reasons for the trial court’s ruling, or when there are no

ex plicit fa ct findings and neither party time ly requested findings and concl usions 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 tri al court’s ruling, supports those f

indings

. 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 rul ing
de novo unless the implied fact findings supported by the record are also disp ositive

o f the legal ruli ng . Kelly , 204 S. W.3d at 819. Even if the trial court gave the wrong
reason for its ruling, w e must uph old the ruling if it is both supported by th e record and correct under any applicable legal theory

. State v. Steven s , 235 S.W .3d 736, 740 ( Tex. Crim. App. 2007); Armend ariz v. State , 123 S.W.3d 401, 404 ( Tex. Crim. App. 2003).
II. The impou ndment
T o be lawful, a dec ision to impound a vehicle must be reasonable under the
Fourth Amendment. Rob erts v. State , 444 S.W.3 d 770, 775 (Tex. Ap p . — Fort Worth
20 14, pet. ref

’ d) . The State bears the burden to p rove a lawful impoundment. Id.
Whet her a n impoundm ent is reasonable is a question of law that we review de novo , measuring reasonableness by ex amining the totality of the circumstances

. Oh io v.
Robinet te , 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. A pp. 2004)

. In the process w e must balance the public interest7

and the individual’s right to be free from arbitrary detentions and intr usions

. Koth e , 152 S.W.3d at 63. Nevertheless , we have previous ly noted the significantly lower degr ee of privacy one s hould expect when it comes to his vehicle com pared to his
home or off

ice and that vehicles are subject to pervasive and continuing gove rnmental
reg u lat ion and controls. Roberts

, 444 S.W.3d at 77 4 (ci ting South Dakota v. Opperman , 428 U. S. 364, 367

– 68, 96 S. C t. 3092, 3096 (1976) ).
T he court of criminal appeals has observed th at there are many circumstances
under whic h law enforcement may reasonably im pound a vehicle, including (1) the
driver ’ s arres t when the arrest is reason ably conn ected to the vehicl e; (2) statutory authorization; (3) vehicle abandonmen t or a vehicle that is ha zardous and presents a danger to the p ublic; (4) a reaso nable belief t hat the vehicle is stolen; (5) vehicle
removal from an accident scene ; and (6) parking v iolations. Id. at 77 6 (citing Benavides
v. State , 600 S.W.2d 809, 8 1 1 (Tex. Crim. App. [Panel Op.] 1980) ; and Opperman , 428
U.S. at 368

– 69, 96 S. Ct. at 3097) (explain ing that in the interest of public safety and
as par t of a community caretaking function , v ehicles are freq uently taken into police custody for, among other things, vehicle accidents and other caretaking and traffic

control activities )

. Appel lant argues t hat the EPD impoundment policy cannot justify the
im poundment of Appellant ’ s truck becaus e it l eaves the dec ision to impound a v ehicle
to the “ unfettered discretion ” of police officers. T hi s argument has been previously rej ected , and we do no t find Appella nt ’ s attempt to resurrect it convi ncing. See8

Colo ra do v. Bertine , 479 U.S. 367, 375 , 10 7 S. Ct. 738, 743 ( 1987) ( rejecting argument that inve ntory search of van was unconstitutional “ because departmental regulations
gave t he police discretio n to cho ose between impounding the van and parking and
lo cking it in a public parking pla ce ” ). As the United States Supre me Court explained
in Berti ne , “ Nothing . . . prohibits the exercise of police discretion so long as that
discretion is exercised accor ding to standard criteria and on the basis of something
other than su spicion of evidence of criminal activity

. ” Id. , 107 S. Ct. at 743. 3 I n that case, the court declined to find a violation of the Fourth Amendment whe n “ [t]her e was no showing that the p o l ice cho se to impound [the defendant] ’ s van in order to investigate sus pected criminal activity. ” Id. at 37 6, 107 S. Ct. at 743. 4

3 In his motion for rehearing, Appellant argues that we have misconstrued Ber tine and his argu ment regarding the EPD impoundment policy , and that the EPD policy i s “d eficient because it does not contain certain cri t eria relating to the feas [i]bil ity and appropriateness of leaving the vehicle rather than impounding it

. ” Bu t Appellant ’s interpretation of Bertine is wrong. The Supreme Court noted that th e polic e policy at issue in Bertine allo wed polic e officers the discretion to impound a v ehicle or park and lock it in a public place, but the Supreme Court did not hol d that police impoundment polic ies must i nclude such a provision specifically requir ing officers to evaluate the feasibility of parking t h e vehicle in a public place

. Id. And we note that nothing in the EPD policy re stricts the officer ’ s d iscretion to co nsider the feasibility and appropriaten ess of leaving a vehicle

.

4 Appellant also relies heavily on United States v. Duguay , 9 3 F.3d 346 (7th C ir. 1996) , to support his argu ment , but it is easily di s tingui shable from th e case at hand. In Duguay , there was no written police policy or “ well

- honed department routine ” regardi ng impoundment in effect at the time of the arrest , imp oun d ment, and inventory search. Id. at 351. And the two arresting officer s ’ explanations for impounding the d efendant ’ s car co nflicted. Id. at 352.9

In this case , the State provided evidence of EPD ’ s written polic y allow ing
officer s to impound ve hicle s if the driver has be e n p laced under arrest or if the
driver ’ s vehicle is r endered inoperable due to an accident

. Offic er B uschee te stified
th at he impounded the truck because it was inoperable and Appellant was under

arrest , and there is no evidenc e that Officer Buschee or O f f icer Mi tchell 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 sce ne. The tr ial court could have found t h at the officers were entitled to disbelieve Appellant ’ s statement that his wif e was on the way and th erefore
determined that nobody was en rout e to re pair o r retrieve the truck. See Uballe v. State , No. 07

- 13

- 00127

- CR, 2014 WL 1829849 , at *1

– 2 (Tex. Ap p . — Amaril lo May 6, 2014, no pet.) (me m. op. , no t designated for publication) (holding that imp oundment was reasonable when appella nt was a rrested, no other dri ver was p resent to take possession of the vehicle, and appellant did n ot argue that there were al t e rnative s to impounding the vehicle ). A ppellant asks us to conclude that the officers could have
left the truck in the R aceTrac parking lot , but that is not the standard to be applied.
W e are required to view the ev idence in t he light most favorabl e to t he trial court ’ s implied factual findings , and here the trial court could have reasonably concluded th at the RaceTrac was not a safe place to leave the unlocked 5 and damaged truck. 6 See also

5 In this respect, Appella nt ’ s argument as he reurges it in his motion for rehearing again mi sses the mark. A ppellant insists th at the EPD policy is deficient10

Bertine , 479 U.S. at 374, 107 S. Ct. at 742 ( “ The reasonablenes s of any p articular governmental act

ivity does not necessarily or invariably tu rn on the existence of
al ternative ‘ less in tru sive ’ means. ” ) ( quo ting I llino is v. Lafayette , 462 U.S. 640, 647, 103 S. Ct. 2605, 2610 (1983) ).
We the refore overrule Appellant ’ s argument s challe nging the impoundment of
his v eh icle.
III. The inventory search Appellant ’s chal lenge of the sear ch of his pickup truck is three

- fold: first, he argues that the inventory search w as unlawful because the impou ndment was

because it does not require police to evaluate the f easibility and a ppropriateness of leaving the vehicle , re lying on Bertine . Not only does he misinterpret Bert ine , bu t if the EPD policy had a provision s imilar to that at i ssue in Bertine (allowing officers to choose between “ parking and locking ” a vehic le in stead of imp ounding it), the result in this case would be the same. See Bertine , 479 U.S. at 375, 107 S . Ct. at 743 (em phasis added )

. Appellant ’ s t ru ck was unlocked an d his keys were not on his person. If th e officers had decided to leave the truck , it is reasonabl e to expect that they would have opened the truck to find the keys in ord er to lock i t, and in doing so, they would have smelled the mari j uana . Cf. id. at 3 72, 107 S. Ct. at 741 ( recognizing deference accorded to “ police caretaking procedures designed to secure and protect vehicles and their contents ” ).

6 W e are not swayed by Appellant ’s reliance on decisions from other jurisdictions indi cating that a n impou ndment is not reasonable whe n a def endant is arres ted for a low

- level offen se that risk s a s hort am ount of time spent in cust ody. Cf. Roberts , 444 S.W.3d at 775

– 76 (upholding impoundment after in itial arrest for expired registration, l ack of a valid d rive r ’ s lice nse, and no proof of f inan c ial responsibility); J ose y v. State , 98 1 S.W.2d 831, 836 (Tex. A pp.

— Houston [14th Dist. ] 1998, pet. ref ’ d) ( discussing impoundment after arrest for minor tr affic violations)

.11

unlawful. Beca u se we have overruled his challenge to the impoundme nt of the vehicle, we overrule this argum ent.
In h is second argument , Appellant challenges the search on the basis that the inventory search was not conducted pursuant to EPD p olic y requiring a written

“ vehicle inv entory sheet

. ” But Appellant did not present this argument to the t rial

court
. To prese rve a complaint for o ur review, a party must have presen ted to the trial court a timely reques t, objection, or motion stating the specific ground s , if not

a pparent 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 ther efore ov er rule this portion of Appellant ’ s arg ument. Finally, Appellant argues that the search was not jus t ified under the au tomobile exception because the officers did not have probable ca use to sea rch the vehicle until they ha d already opened the truck door

. B ut we have already held that the imp oundment of the v ehicle was lawful, th ereby permitting the offi c ers to open the truck door to begin an inventory search

. See Moskey v. State , 333 S.W.3d 696, 700 ( Tex. App.

— Houston [1s t Dist.] 2010 , no pet.) ( “ A police officer ’ s inventory of the
contents of an automobile is permissible under the Fourth Amendment if c o nducted pursuant to a lawful impoun dment of the vehicle. ” ) (citing Opperman , 428 U.S. at 375

– 76, 96 S. Ct. at 3100 ; Benav ides , 600 S.W.2d at 810; and Garza v. State , 13 7 S.W.3d 878, 882 (Tex. App.

— Houston [1st Dist.] 2004, pet. ref ’ d)). Once Officer Mitc h ell opened the truck door and smelled the odor of marijuana, he had probable cause to search the12

veh icle under the automo bile 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 prob able cause to search a defendant’s person, vehicle, or o bjects within the vehicle.”) (citing Small v. State , 977 S.W.2d 771, 774

– 75 (Tex. App.

— Fort Worth 1 9 98, no pet.);
Luera v. State , 561 S.W.2d 497, 498 (Tex. Crim. App. 1978)). We therefore over rule
th e remainder of Appell ant ’ s second issue.
Conclus ion
Ha ving overruled Appellant ’ s argument s, we affirm the trial court ’ s judgment.

/s/ Bonnie Sudderth Bo nnie Sudderth Chief Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Deliv ered : November 14 , 2 019