REVERSE and REMAND; and Opinion Filed April 1, 2015.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-14-00553-CR

JEFFREY RAY COX, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 15th Judicial District Court

Grayson County, Texas

Trial Court Cause No. 063252

MEMORANDUM OPINION

Before Justices Bridges, Fillmore, and Brown

Opinion by Justice Fillmore

A jury found Jeffrey Ray Cox guilty of possession of less than one gram of 

methamphetamine. The trial court sentenced Cox to eight years’ imprisonment, probated the 

sentence, and placed Cox on community supervision for eight years. In his first two issues on 

appeal, Cox asserts the trial court erred by denying his pretrial motion to suppress evidence 

found during a warrantless search of a vehicle and his pretrial motion to suppress statements he 

made before and after he was advised of his Miranda1 rights. In his third issue, Cox contends the 

evidence is insufficient to support the conviction for possession of a controlled substance. We 

conclude that, because the State failed to meet its burden of establishing there was a valid 

inventory search of the vehicle, the trial court erred by denying Cox’s motion to suppress 

 1 Miranda v. Arizona, 384 U.S. 436 (1966).
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evidence found during the search of the vehicle and that Cox was harmed by the error. 

Accordingly, we reverse the trial court’s judgment and remand this case to the trial court for 

further proceedings.

Background

Collinsville police officer Michael Aguirre instigated a traffic stop after Cox failed to 

stop at a designated point. After arresting Cox for the traffic violation, Officer Aguirre called a 

tow truck to impound the pickup truck Cox was driving and conducted an inventory search of the 

vehicle. During the search, Officer Aguirre found a digital scale on which there was the residue 

of a crystal substance. Officer Aguirre advised Cox of his Miranda rights and, after agreeing to 

answer Officer Aguirre’s questions, Cox said the substance was probably methamphetamine. 

Officer Aguirre continued searching the truck and found a glass pipe containing a crystal residue. 

The crystal substance on the scales was subsequently determined to be methamphetamine.

Cox was charged with possession of less than one gram of methamphetamine. Cox filed 

a pretrial motion to suppress all evidence found in the truck, arguing Officer Aguirre’s search 

was conducted without a warrant and was not a valid inventory search. Cox also filed a motion 

to suppress statements he made to Officer Aguirre on the ground that Officer Aguirre conducted 

a custodial interrogation without informing Cox of his Miranda rights and then, after informing 

him of his Miranda rights, continued the prior interrogation. After a hearing, the trial court 

denied both motions to suppress.

The jury found Cox guilty of the charge. The trial court sentenced Cox to eight years’ 

imprisonment, probated the sentence, and placed Cox on community supervision for eight years.

Inventory Search

In his first issue, Cox complains the trial court erred by denying his motion to suppress 

all evidence obtained during the search of the vehicle. Cox specifically argues the search of the
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truck was not a proper inventory search because the vehicle was not lawfully impounded, the 

impounding agency did not have an inventory policy and, even if a sufficient policy exists, it was 

not followed.

Relevant Facts

At the hearing on Cox’s motions to suppress, Officer Aguirre testified he observed Cox 

failing to stop at a designated point. Specifically, instead of stopping at a stop sign, Cox stopped 

the pickup truck in the middle of the intersection. Officer Aguirre instigated a traffic stop based 

on the violation. The stop was recorded by a chest camera worn by Officer Aguirre.

After obtaining Cox’s identification, Officer Aguirre asked Cox a number of questions, 

including whether he knew what time it was; where he worked and lived; what Cox was doing in 

Collinsville; and whether there was anything illegal going on. Because it was 1:00 a.m., Officer 

Aguirre requested, for officer safety purposes, that Cox get out of the truck. When Officer 

Aguirre asked Cox to get out of the truck, he had already decided to arrest Cox on the traffic 

violation. 

Officer Aguirre returned to his patrol car to check Cox’s driver’s license status and 

whether there were any warrants for Cox’s arrest. While Officer Aguirre was doing so, he 

observed Cox making a telephone call. For officer safety purposes, Officer Aguirre immediately 

got out of his patrol car and requested that Cox terminate the call. Cox told Officer Aguirre that 

he had called the owner of the truck. Officer Aguirre asked Cox if the owner of the truck was 

expecting Cox and why the owner was expecting Cox. He did not ask Cox if the owner of the 

vehicle was coming to the location of the traffic stop.

Officer Aguirre returned to his patrol car and learned there were no outstanding warrants 

for Cox’s arrest. Officer Aguirre then arrested Cox for failing to stop at a designated point. 

Officer Aguirre testified that, although it was pretty common for him to make a traffic stop for 
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the failure to stop at a designated point, he did not often make an arrest for that traffic violation. 

Officer Aguirre had “no reason” he could offer to distinguish the traffic violation cases he 

believed justified an arrest from those that did not. It is “based on the violation,” and it was his 

decision to arrest Cox. 

After he arrested Cox, Officer Aguirre asked whether Cox had any identification on him. 

Cox indicated it was in his wallet. Officer Aguirre asked where Cox’s wallet was, and Cox 

responded that it was in the truck. Officer Aguirre asked whether Cox had anything in his 

pockets, how much money he had, where he worked, when he last worked, and whether he had

his money “separated.”

Officer Aguirre contacted a tow truck to impound the truck and began to do an inventory 

search of the vehicle. According to Officer Aguirre, there is a written policy in the “manual” 

that a vehicle inventory is to be conducted for any vehicle that is impounded. The policy

underlying the necessity of conducting the inventory is “the property and things of value in the 

vehicle, property of value, document everything in the vehicle before it’s released from our 

custody.” The policy required Officer Aguirre to “fill out the form,” or vehicle impoundment 

record, when he conducts an inventory search or an impoundment.

While searching the vehicle, Officer Aguirre found a digital scale in the seat that had the 

residue of a crystal substance on it. Officer Aguirre returned to his patrol car and advised Cox of 

his Miranda rights. Cox agreed to answer Officer Aguirre’s questions and told Officer Aguirre 

the crystal substance was likely methamphetamine. Cox indicated a friend of his had been in the 

truck earlier and had probably left the digital scales. Officer Aguirre inquired whether there was 

any more methamphetamine in the truck or whether Cox had already sold it. Cox responded that 

he used, but did not sell, methamphetamine. Officer Aguirre noted that Cox had said he was 

coming from a friend’s house and inquired whether that friend had methamphetamine at his 
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house. Cox responded the friend whose house he was coming from did not use 

methamphetamine. Officer Aguirre then asked where the methamphetamine was coming from, 

and Cox stated it was “all over.” Officer Aguirre returned to the truck and continued his search.

Bobby Cloer, the owner of the truck arrived approximately five minutes after Officer 

Aguirre found the digital scales. However, because Officer Aguirre had already discovered the 

digital scales in the truck, he refused to release the vehicle to Cloer. Officer Aguirre resumed 

searching the vehicle and found a glass pipe containing a crystal residue under the seat.

The vehicle impoundment record completed by Officer Aguirre was admitted into 

evidence. Under the section of the form for the description of any personal property left in the 

vehicle, Officer Aguirre wrote only that the vehicle contained miscellaneous tools and 

miscellaneous clothing. Officer Aguirre testified the camera he was wearing recorded any 

property in the vehicle as well. He admitted, however, that the inventory policy in the manual 

did not state that everything in the inventory must be recorded on the video.

The video of the search was also admitted into evidence. The video shows Officer 

Aguirre searching the entire truck, including emptying cans and jars of their contents, looking in 

pill bottles, and unfolding crumpled pieces of paper. Officer Aguirre searched some areas of the 

truck more than once. Officer Aguirre can be heard commenting to the tow truck driver that he 

thinks he is missing something. A number of times, the video goes dark as Officer Aguirre 

bends over during his search of the truck and obscures the camera, making it impossible to see 

what property is in the truck. However, the video shows a number of items not listed on the 

vehicle impoundment form, including what appears to be a car jack, some battery cables, a spare 

tire, a number of tools, a heavy chain, a tape player with attached ear buds, a charger for an 

electronic device, a blanket, some orange coveralls, the digital scales, the glass pipe, and a 

wallet.
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Standard of Review

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

review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We review the trial 

court’s factual findings for an abuse of discretion, but review the trial court’s application of the 

law to the facts de novo. Id. We give almost total deference to the trial court’s determination of 

historical facts, particularly when the trial court’s fact findings are based on an evaluation of 

credibility and demeanor. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We 

give the same deference to the trial court’s conclusions with respect to mixed questions of law 

and fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim.

App. 2012). We review mixed questions of law and fact that do not turn on credibility and 

demeanor as well as purely legal questions de novo. State v. Woodward, 341 S.W.3d 404, 410 

(Tex. Crim. App. 2011).

When, as in this case, the trial court does not make explicit findings of fact, we must view 

the evidence in a light most favorable to the trial court’s ruling and assume the trial court 

resolved any issues of historical fact or credibility consistently with its ultimate ruling. Hubert v. 

State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010). We will reverse the trial court’s ruling

“only if it is arbitrary, unreasonable, or ‘outside the zone of reasonable disagreement.’” State v. 

Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014) (quoting State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006)). We afford the prevailing party the strongest legitimate view of the 

evidence and all reasonable inferences that may be drawn from that evidence. State v. Duran 

396 S.W.3d 563, 571 (Tex. Crim. App. 2013). We will uphold the trial court’s ruling if it is 

reasonably supported by the record and is correct on any theory of law applicable to the case. 

Story, 445 S.W.3d at 732; Turrubiate, 399 S.W.3d at 150.
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Analysis

The Fourth Amendment to the United States Constitution protects against unreasonable 

searches and seizures by government officials. U.S. CONST. amend. IV.

2 A defendant asserting a 

search violates the Fourth Amendment bears the burden of producing evidence to rebut the 

presumption of proper conduct by law enforcement. Woodward, 341 S.W.3d at 412. The 

defendant can satisfy this burden by establishing the search occurred without a warrant. Amador 

v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007). The burden then shifts to the State to 

prove the search was reasonable under the totality of the circumstances. Id. at 672–73. The 

State may satisfy its burden by proving the existence of an exception to the warrant requirement. 

See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). 

The State concedes the search of the vehicle was conducted without a warrant, but argues 

it was a valid inventory search following the impoundment of the vehicle. Valid vehicle 

inventory searches are an exception to the Fourth Amendment’s warrant requirement. Colorado 

v. Bertine, 479 U.S. 367, 371 (1987). Law enforcement officials may make a warrantless 

inventory search of a lawfully impounded vehicle, provided that the inventory is conducted in 

good faith and in accordance with standardized criteria or an established routine. Id. at 371–74; 

South Dakota v. Opperman, 428 U.S. 364, 372 (1976); Trujillo v. State, 952 S.W.2d 879, 882 

(Tex. App.—Dallas 1997, no pet.) (inventory search is reasonable under Fourth Amendment so 

long as it is performed in accordance with standard police procedures and not undertaken in bad 

faith or for sole purpose of investigation); Moskey v. State, 333 S.W.3d 696, 700 (Tex. App.—

Houston [1st Dist.] 2010, no pet.). These searches “serve to protect an owner’s property while it 

is in the custody of the police, to insure against claims of lost, stolen or vandalized property, and 

 2 The Fourth Amendment exclusionary rule is made applicable to the states through the due process clause of the Fourteenth Amendment. 

Mapp v. Ohio, 367 U.S. 643, 650–51, 655 (1976); Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).
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to guard the police from danger.” Bertine, 479 U.S. at 372; see also Delgado v. State, 718 

S.W.2d 718, 721 (Tex. Crim. App. 1986). The inventory search must be designed to produce an 

inventory of the vehicle’s contents and must not be a “ruse for a general rummaging in order to 

discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990); see also Richards v. 

State, 150 S.W.3d 762, 771 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (en banc). “The 

individual police officer must not be allowed so much latitude that inventory searches are turned 

into ‘a purposeful and general means of discovering evidence of crime.’” Uballe v. State, 439 

S.W.3d 380, 384 (Tex. App.—Amarillo 2014, pet. ref’d) (quoting Wells, 495 U.S. at 4).

The State bears the burden of proving the impounding of the vehicle and the subsequent 

inventory search are lawful. Delgado, 718 S.W.2d at 721; Moskey, 333 S.W.3d at 700; see also 

Benavides v. State, 600 S.W.2d 809, 810 (Tex. Crim. App. [Panel Op.] 1980) (subsequent 

inventory search is proper when the vehicle’s impoundment is proper). A vehicle may be validly 

impounded and inventoried when the driver is removed from the automobile and placed under 

custodial arrest, and no other alternatives are available to ensure the protection of the driver’s 

property. Delgado, 718 S.W.2d at 721; Greer v. State, 436 S.W.3d 1, 7 (Tex. App.—Waco 

2014, no pet.); Garza v. State, 137 S.W.3d 878, 882 (Tex. App.—Houston [1st Dist.] 2004, pet. 

ref’d). The subsequent inventory search is proper if the impounding agency had an inventory 

policy and the policy was followed. Moberg v. State, 810 S.W.2d 190, 195 (Tex. Crim. App. 

1991); Roberts v. State, 444 S.W.3d 770, 778 (Tex. App.—Fort Worth 2014, pet. ref’d). To be 

lawful, an inventory search must not deviate from the impounding agency’s policy. Moberg, 810 

S.W.2d at 195; Roberts, 444 S.W.3d at 778; Josey v. State 981 S.W.2d 831, 843 (Tex. App.—

Houston [14th Dist.] 1998, pet. ref’d). 
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Cox asserts the State failed to establish there was no alternative to impoundment of the 

vehicle, the impounding agency had an inventory policy, or that the policy was followed. We 

first consider Cox’s argument that the State failed to prove Officer Aguirre followed the 

applicable inventory policy. Officer Aguirre testified there was a written policy that required an 

inventory of any vehicle that was impounded. Although a copy of the written policy was not 

admitted into evidence, Officer Aguirre testified it required “the property and things of value in 

the vehicle, property of value, document everything in the vehicle before it’s released from our 

custody.” The policy required Officer Aguirre to fill out a vehicle impoundment form. This 

form required a description of any personal property left in the vehicle.

Officer Aguirre’s description on the vehicle impoundment form of personal property in 

the truck was miscellaneous tools and miscellaneous clothes. To supplement this description, 

Officer Aguirre relied on the video of the search, and the State admitted at oral argument that, 

without the video, the description of property on the vehicle impoundment form was not a 

sufficient inventory. However, Officer Aguirre testified the inventory policy did not state that 

everything in the inventory was required to be recorded on the video. There was no evidence the 

policy allowed Officer Aguirre to supplement or replace the required vehicle impoundment form 

with a video. Further, the inventory impoundment record did not reference the video and there 

was no evidence the video was attached to the completed form. Finally, portions of the video are 

black because Officer Aguirre’s movements obscured the camera, Officer Aguirre did not 

verbally state on the video what property he was viewing in the vehicle, and nothing about the 

video establishes it was intended to be an inventory of the contents of the vehicle. 

Viewing the evidence in the light most favorable to the trial court’s ruling, the only 

evidence before the trial court about the applicable policy was that an inventory was required of 

any impounded vehicle; the purpose of the inventory was to document property and things of 
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value in the vehicle; and the officer impounding the vehicle was required to complete the vehicle 

impoundment form, which included a description of personal property left in the vehicle. Officer 

Aguirre admitted, and the video shows, there were a number of items of personal property in the

truck that were not listed on the vehicle impoundment form. By failing to list property of value 

left in the truck on the vehicle impoundment form, Officer Aguirre failed to comply with the 

requirements of the applicable inventory policy. See Moberg, 810 S.W.2d at 195 (inventory 

search must not deviate from policy); State v. Stauder, 264 S.W.3d 360, 364 (Tex. App.—

Eastland 2008, pet. ref’d) (affirming suppression when trial court could have concluded that the 

inventory search was merely a ruse based on the officers’ complete failure to fill out inventory 

form as required). Because the State failed to meet its burden of establishing there was a valid 

inventory search, the trial court erred by denying Cox’s motion to suppress the items found 

during that search. See Gauldin v. State, 683 S.W.2d 411, 415 (Tex. Crim. App. 1984) (“In the 

absence of testimony regarding actual adherence to standard police inventory procedure, the 

State has not sustained its burden of proof.”), overruled on other grounds by State v. Guzman, 

959 S.W.2d 631, 634 (Tex. Crim. App. 1998); see also Moberg, 810 S.W.2d at 195; Stauder, 264 

S.W.3d at 364. 

Having concluded the trial court erred by failing to suppress the digital scales on which 

there was a residue of methamphetamine, as well as the glass pipe, we must consider whether 

this error harmed Cox. See State v. Daugherty, 931 S.W.2d 268, 273 (Tex. Crim. App. 1996). 

Because the denial of Cox’s motion to suppress and the admission of the fruits of the unlawful 

search of the truck violated his Fourth Amendment rights, we must reverse the trial court’s 

judgment unless we determine beyond a reasonable doubt that the error did not contribute to the 

conviction or punishment. See TEX. R. APP. P. 44.2(a); Hernandez v. State, 60 S.W.3d 106, 106, 

108 (Tex. Crim. App. 2001); Chidyausiku v. State, Nos. 02-14-00077-CR & 02-14-00078-CR, 
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2015 WL 737391, at *3 (Tex. App.—Fort Worth Feb. 19, 2015, no pet. h.). Error does not 

contribute to the conviction or punishment if the jury’s verdict would have been the same even if 

the erroneous evidence had not been admitted. Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. 

App. 2007). However, if the error has more than a “slight effect,” it is not, beyond a reasonable 

doubt, harmless. Phillips v. State, 193 S.W.3d 904, 913 (Tex. Crim. App. 2006). In conducting 

our review, we evaluate the entire record in a neutral, impartial, and even-handed manner, not in 

the light most favorable to the prosecution. Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. 

App. 1989); Tijerina v. State, 334 S.W.3d 825, 835 (Tex. App.—Amarillo 2011 pet. ref’d). 

The only evidence that Cox possessed less than one gram of methamphetamine stemmed 

from Officer Aguirre’s discovery of the digital scales during his search of the vehicle. 

Accordingly, we cannot conclude beyond a reasonable doubt that the trial court’s error in 

denying Cox’s motion to suppress this evidence did not contribute to Cox’s conviction or had but 

slight effect. See Gibson v. State, 253 S.W.3d 709, 717 (Tex. App.—Amarillo 2007, pet. ref’d) 

(applying 44.2(a) and concluding appellant was harmed because “the evidence obtained as a 

result of the illegal stop formed the basis of appellant’s conviction”).

3

 As a result, the error 

cannot be harmless.

We resolve Cox’s first issue in his favor.4

 We reverse the trial court’s judgment and 

remand this case to the trial court for further proceedings. 

 3 See also Carillo v. State, No. 05-12-00544-CR, 2014 WL 465424, at *6 (Tex. App.—Dallas Feb. 4, 2014, no pet.) (mem. op., not 

designated for publication) (“Because the drug evidence found in appellant’s truck was the only evidence at trial establishing appellant possessed 

cocaine, we conclude there is a reasonable likelihood the error contributed directly to appellant’s conviction.”).

4 Because we have concluded the evidence does not support the trial court’s implicit finding that Officer Aguirre complied with the 

applicable inventory policy, we need not address Cox’s complaints the State failed to establish either that the pickup truck was lawfully 

impounded or there was a policy pertaining to an inventory of an impounded vehicle. See TEX. R. APP. P. 47.1.
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Based on our resolution of Cox’s first issue, we need not address his second issue 

regarding the trial court’s denial of his motion to suppress the statements he made to Officer 

Aguirre or his third issue pertaining to the sufficiency of the evidence to support the conviction. 

See TEX. R. APP. P. 47.1. 

Do Not Publish

TEX. R. APP. P. 47

140553F.U05

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

JEFFREY RAY COX, Appellant

No. 05-14-00553-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 15th Judicial District 

Court, Grayson County, Texas,

Trial Court Cause No. 063252.

Opinion delivered by Justice Fillmore, 

Justices Bridges and Brown participating.

Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED

and the cause REMANDED for further proceedings consistent with this opinion.

Judgment entered this 1st day of April, 2015.