### IN THE TENTH COURT OF APPEALS
No. 10
- 08
- 00243
- CR
THOMAS LEON BYRD , Appellant v. THE STATE OF TEXAS , Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2007
- 1823
- C1

MEMORANDUM OPINION
Thomas Leon Byrd appeals the denial of a motion to suppress evidence that was the subject of an inventory search conducted on his vehicle pursuant to being impounded, during which cocaine was discovered. After the motion was denied, Byrd pled nolo contendere to the charge of Possessi on of a Controlled Substance with Intent to Deliver Cocaine, a first degree felony, pursuant to a plea bargain with the State and was sentenced to fifteen (15) years in the Texas Department of Criminal Justice

– Institutional Division. T EX
. H EALTH & S AFET Y C ODE A NN
. § 481.112 (Vernon 2003); T EX
. P EN
. C ODE A NN . § 12.32 (Vernon 2003). The trial court certified Byrd’s right to appeal the denial of the motion to suppress. T EX
. R. A PP
. P . 25.2(2)(A). Because we find thatByrd v. State Page 2

the trial court did not err by denyin g the motion, we affirm the judgment of the trial

court. Standard of Review We review a trial court's ruling on a motion to suppress evidence under a
bifurcated standard of review. St. George v. State , 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give a lmost total deference to the trial court's determination of historical facts and review de novo the trial court's application of law to facts not turning on credibility
and demeanor. Ford v. State , 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Inventory Sear ches An inventory search is permissible under the United States and Texas constitutions if it is conducted pursuant to a lawful impoundment. South Dakota v. Opperman , 428 U.S. 364, 372

- 75, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); Benavides v. State , 600 S.W.2d 809, 810 (Tex. Crim. App. 1980); Josey v. State , 981 S.W.2d 831, 842 (Tex. App.

— Houston [14th Dist.] 1998, pet. ref'd). The State bears the burden of proving that an impoundment is lawful and may satisfy its burden by showing that (1) the driver

wa s arrested, (2) no alternatives other than impoundment were available to ensure the automobile's protection, (3) the impounding agency had an inventory policy, and (4) that policy was followed. Garza v. State , 137 S.W.3d 878, 882 (Tex. App.

— Houston [1st
D ist.] 2004, pet. ref'd). To determine the reasonableness of impoundment we consider the following factors: (1) whether someone was available at the scene of the arrest to whom the police could have given possession of the vehicle; (2) whether the vehicle was impeding the flow of traffic or was a danger to public safety; (3) whether the vehicle was locked; (4) whether the detention of the arrestee would likely be of such duration asByrd v. State Page 3

to require police to take protective measures; (5) whether there was some r easonable connection between the arrest and the vehicle; and (6) whether the vehicle was used in
the commission of another crime. Josey , 981 S.W.2d at 842. In making inventory searches, the police are not required to use the least intrusive means of safeg uarding the property. Colorado v. Bertine , 479 U.S. 367, 374

- 75, 93 L. Ed. 2d 739, 107 S. Ct. 738 (1987); Illinois v. Lafayette , 462 U.S. 640, 647

- 48, 77 L. Ed. 2d 65, 103 S. Ct. 2605 (1983). The police may inventory even locked automobile trunks and glo ve compartments. Bertine , 479 U.S. at 374

- 75. The authorities are not required to offer the arrestee a chance to make other arrangements, or to ask him whether he wants his valuables protected. Id. at 373

- 74. The police are also not required to indepen dently investigate possible alternatives to impoundment absent some objectively demonstrable evidence that alternatives do, in fact, exist. Mayberry v. State , 830 S.W.2d 176, 180 (Tex. App.

— Dallas 1992, pet. ref'd). In his brief, Byrd does not challenge the fact that he was arrested, that there was an inventory policy, or that the policy was followed by the officer. See Garza v. State , 137 S.W.3d at 882. He does challenge whether there were other alternatives to impoundment and the reasonableness of t he impoundment. Byrd was the driver of the vehicle. His brother, Joe, was in the passenger seat. Byrd was stopped in Waco for expired inspection and registration stickers and having his front license plate displayed inside the vehicle on his dash, whic h rendered itByrd v. State Page 4

unreadable as required by statute 1 . When Byrd was pulled over by the officer, he parked the car in a parking lot of a store. Upon running a search for warrants, the officer discovered that Byrd had outstanding warrants for DWI and driving w ith a suspended license. Byrd was then arrested and placed in the patrol car by the officer. Further investigation revealed that the vehicle’s owner was, in fact, Byrd’s wife, who lived in Riesel. Byrd was specifically excluded from the liability insuran ce policy on the vehicle. Joe did not have a driver’s license. After the officer determined that Joe had no outstanding warrants, Joe walked away from the scene with a gas can from the vehicle. It is the policy of the Waco Police Department that they do not release vehicles
to unlicensed drivers or non

- owners of the vehicle. The officers are not allowed to leave the vehicle unattended without someone to take custody of it. Upon determining that the vehicle would be impounded, the officer undertook

an inventory search which revealed a rag stuffed in a cup wedged between the driver’s seat and the center console. When the officer pulled the rag out of the cup, three baggies filled with what was later determined to be cocaine and several empty baggies
fel l out of the rag. In reviewing the factors used to determine the reasonableness of the impoundment, the factor we believe is determinative in the instant case is the availability of someone at the scene of the arrest to whom the police could have given
pos session of the vehicle. Delgado v. State , 718 S.W.2d 718, 721 (Tex. Crim. App. 1986). If a passenger in the car or someone at the scene of the arrest cannot furnish

1 The officer determined that the inspection and registration stickers were in fact current after he stopped Byrd, but the license plate was, in fact, improperly displayed. However, Byrd does not complain of the validity of the traffic stop in either the motion to suppress or his brief.Byrd v. State Page 5

identification or a driver's license, it is not improper for the officer to refuse to rel ease the car to that person. Stephen v. State , 677 S.W.2d 42, 43

- 44 (Tex. Crim. App. 1984); State
v. Garcia , 801 S.W.2d 137, 141 (Tex. App.

— San Antonio 1990, pet. ref'd); see also Mayberry , 830 S.W.2d at 180. Additionally, because the police are not requ ired to independently investigate impoundment alternatives, the police were not required to locate the owner of the store to determine if Byrd’s car could remain in the lot. See
Garza v. State , 137 S.W.3d 878, 882 (Tex. App.

— Houston [1st Dist.] 2004, pet ref’d); Mayberry , 830 S.W.2d at 180 . We hold that there was no alt ernative to impoundment to ensure the safety of the vehicle, and, therefore, the impoundment was lawful and reasonable. Thus, the inventory was not an unreasonable search in violation of the United States and Texas constitutions. We overrule Byrd’s sole issue.
Conclusion We find that the impoundment of Byrd’s vehicle was lawful, and the inventory of Byrd’s vehicle taken pursuant to that impoundment was not in violation of either the United States Constitution or the Texas constitution. Therefore, the tr ial court did not err in denying Byrd’s motion to suppress. We affirm the judgment of the trial court.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed October 28, 2009 Do not publish [CR25]