1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00119-CR

__________________

JAMES BOYD AUSTIN, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 296th District Court 

Collin County, Texas

Trial Cause No. 296-84448-2018

__________________________________________________________________

MEMORANDUM OPINION 

In this prosecution of the defendant for possessing between four and 

two hundred grams of methamphetamine, defendant was convicted of 

possessing meth police found in the center console of his car after he was 

stopped by police and his car was impounded and searched.1 Defendant 

1See Tex. Health & Safety Code Ann. § 481.115(d). Austin filed his 

appeal in the Fifth Court of Appeals, but in April 2020, the Texas 

Supreme Court signed a docket-equalization order and transferred the 
2

moved to suppress the evidence police seized from his car, but the trial 

court denied the motion. Several months later, the defendant pleaded 

guilty pursuant to a plea agreement, and the defendant appealed. In a 

single issue, James Boyd Austin contends the search of his car violated 

his constitutional and statutory rights against an unreasonable search 

and seizure because the purported inventory search police performed on 

his car was conducted in bad faith.2 Concluding Austin’s argument lacks

merit, we will affirm. 

Background

In 2018, a grand jury indicted Austin for possessing between four 

and two hundred grams of meth.3 Austin’s indictment was based on meth 

that an officer employed by the City of Allen Police Department found in 

Austin’s car after another officer stopped Austin for violating two Texas 

traffic laws.4 After Austin was stopped, the officer who conducted the stop 

arrested Austin for driving with an expired registration. And following 

Austin’s arrest, the police impounded his car as required by the Allen 

appeal to the Ninth Court of Appeals to equalize the appellate dockets. 

See Tex. Gov’t Code Ann. § 73.001.

2See U.S. CONST. amend. IV; Tex. Const. art. I, § 9. 3See Tex. Health & Safety Code Ann. § 481.115(d). 

4See Tex. Transp. Code Ann. §§ 502.040(a), 502.407(a), 601.051.
3

Police Department’s “Vehicle Impounds” General Order (“the Impounds 

Order”). Officer Hein, who had arrived on the scene with another officer 

to back up the officer who placed Austin under arrest, performed the 

inventory search on Austin’s car. When Officer Hein opened the car’s 

center console and emptied its contents, he discovered a baggie of meth 

inside.5

After Austin was indicted, Austin filed a boilerplate motion to 

suppress, claiming police detained and arrested him without reasonable 

suspicion or probable cause and seized evidence without having a valid 

warrant authorizing police to search or seize evidence, which violated his 

statutory and constitutional rights. Six weeks after Austin filed the 

motion to suppress, Austin filed a brief to support his motion, claiming 

the officers who performed the inventory search of his car failed to 

conduct the search in good faith under the written policies, adopted by 

the City of Allen, applicable to vehicles impounded by police. In his brief, 

Austin claimed the officers who performed the inventory search of his car 

5The officer who stopped Austin and arrested him did not testify in 

the hearing on Austin’s motion. 
4

carried the purported inventory search out as a subterfuge so they could 

investigate whether criminal activity had occurred. 

When the trial court held a hearing on Austin’s motion, just one 

witness testified, the officer who performed the inventory search on 

Austin’s car. During the hearing, the officer introduced himself as 

“Officer Hein with [the] Allen Police Department.”6 When questioned by 

the prosecutor, Officer Hein testified he was in training and accompanied 

by another officer, Officer Ramirez, who was his training officer the day 

they arrived on scene to “back up Officer Pope[.]” According to Hein, 

Officer Pope stopped Austin and took Austin into custodywhile Hein and 

Officer Ramirez stayed and performed the inventory search on Austin’s 

car. Officer Hein explained he saw Austin at the scene, but he denied ever 

speaking to Austin that day. Officer Hein testified that when he 

performed the inventory search on Austin’s car. he “[l]ocated narcotics 

within the vehicle.” Officer Hein generally described what he does when 

performing an inventory search. He stated: “Basically, we look anywhere

that valuables could be contained.” 

6Nothing in the reporter’s record or clerk’s record identifies Officer 

Hein by his first name, so we refer to him the opinion as Officer Hein. 
5

A copy of the City of Allen Police Department’s Impounds Order, 

call it the Impounds Order, contains the policies applicable to vehicles

police employed by the City of Allen impound and inventory. The 

Impounds Order was admitted into evidence during the hearing.7 We 

note the Impounds Order requires officers to “inventory closed containers 

that may be opened, without damage to the container.” And it requires 

“[a]ll vehicles being impounded [to] be inventoried for the protection of 

the owner’s personal property as well as the Department.” 

Turning to the details of Officer Hein’s inventory of Austin’s car, 

the prosecutor asked Officer Hein whether the City of Allen has “an 

inventory policy in place.” Officer Hein confirmed the City did have an 

inventory policy in place. Then, the prosecutor asked: 

(Attorney) Q. Did you follow it according to what you needed 

and what you should have done?

(Officer) A. I did. It was. 

(Attorney) Q. Did you believe that this was a narcotic 

investigation?

(Officer) A. Not until narcotics were uncovered.

(Attorney) Q. Were you surprised when you did find 

narcotics?

(Officer) A. Yes ma’am.

(Attorney) Q. Did you believe this to be an investigatory 

search when you started your inventory?

(Officer) A. No ma’am. 

7The Impounds Order was admitted without objection.
6

Even though Austin’s attorney’s cross-examined Officer Hein, we 

find nothing in Officer Hein’s testimony showing that he failed to follow 

the written policy as that policy is described in the Impounds Order

regarding the manner of the inventory search occurred. The evidence the 

trial court considered during the hearing on Austin’s motion includes a 

videorecording from a body camera worn by Officer Hein on the scene. 

Nothing in the videorecording contradicts the officer’s testimony. 

Further, we note that during the hearing the prosecutor told the 

trial court that the parties had agreed Austin did not dispute the validity 

of the stop or his arrest. When the prosecutor made that statement, 

Austin’s attorney responded: “Yeah[.]” Further, in the hearing Austin’s 

attorney never argued or claimed that Austin’s stop or that Austin’s 

arrest incident to the stop violated the law.

When the hearing ended, the trial court denied Austin’s motion. 

The trial court made these three findings orally on the record in the 

hearing:

• “[T]he Allen Police Department did have a valid policy 

concerning inventory searches[;]” 

• “Officer Hein’s search was pursuant to that valid policy[;]” 

and 

• The inventory of Austin’s car “was not an illegal search[.]” 
7

This appeal followed.

Standard of Review

To suppress evidence for an alleged Fourth Amendment violation,

the defendant bears the initial burden of rebutting the presumption the

police acted properly.8 A defendant satisfies his initial burden if he

establishes thatthe search or seizure occurred withouta warrant.9 Once

the defendant showshe was searched or his property was seized without

a warrant, the burden shifts to the State to establish thatthe search and

the seizure were reasonable.10 In evaluating a trial court’s suppression

ruling, we must keep in mind that the “touchstone of the Fourth

Amendment is reasonableness, not individualized suspicion.”11 In

evaluating whether a given search was reasonable, we evaluate it in

relation to the search’s “scope and manner of execution.”12

8Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App.

2007); see Young v. State, 283 S.W.3d 854, 872 (Tex. Crim. App. 2009).

9Amador, 221 S.W.3d at 672.

10Id. at 672-73;Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim.

App. 2005);Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

11Samson v. California, 547 U.S. 843, 855 n.4 (2006).

12Maryland v. King, 569 U.S. 435, 448 (2013).
8

We use a bifurcated standard to review a trial court’s ruling on a 

motion to suppress.13 Under that standard:

The trial court is given almost complete deference in its

determinationof historical facts, especially if those are based

on an assessment of credibility and demeanor.The same

deference is afforded the trial court with respectto its rulings

on application of the law to questions of fact and to mixed

questions of law and fact, if resolution of those questions

depends on an evaluation of credibility and demeanor.

However, for mixed questions of law and fact that do not fall

within that category, a reviewing court may conduct a de

novo review.14

As the sole judge of the credibility and weight to give the evidence 

admitted in the hearing on Austin’s motion to suppress, the trial court 

had the discretion to accept or to reject Officer Hein’s testimony about 

the purpose and reasons he searched Austin’s car.15 “That same 

deferential standard of review applies to a trial court’s determination of

historical facts [even] when that determination is based on a videotape 

recording admitted into evidence at a suppression hearing.”16

13Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim. App. 2018).

14State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019) 

(cleaned up).

15See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) 

(noting that the trial judge acts as the trier of fact in a suppression 

hearing).

16State v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013)

(cleaned up).
9

Analysis

The Fourth Amendment to the United States Constitution and 

article I, section 9 of the Texas Constitution protects against 

unreasonable searches and seizures.17 While subject to several 

exceptions, the well-established rule is that “‘searches conducted outside 

the judicial process, without prior approval by judge or magistrate, are 

per se unreasonable under the Fourth Amendment.’”18 An inventory 

search of a vehicle that has been lawfully impounded by police is but one 

of the recognized exceptions to the general rule requiring police to obtain 

a warrant before searching or seizing property.19

The rationale for the exception is tied to the shared interest that 

exists between the government and the property’s owner since the police, 

after impounding a car, are potentially responsible for its contents.

20

Consequently, when authorized through a written policy identifying 

17U.S. CONST. amend. IV; Tex. Const. art. I, § 9; Johnson v. State, 

912 S.W.2d 227, 232 (Tex. Crim. App. 1995) (explaining article I, section 

9 offers no protections substantively differentfrom those afforded by the 

Fourth Amendment).

18United States v. Ross, 456 U.S. 798, 825 (1982) (citations omitted).

19Colorado v. Bertine, 479 U.S. 367 (1987); South Dakota v. 

Opperman, 428 U.S. 364 (1976). 20See Bertine, 479 U.S. at 372; Opperman, 428 U.S. at 370.
10

what an officer may inventory after impounding a car, the search that 

results serves “to protect the owner’s property while it is in the custody 

of the police, to insure against claims of lost, stolen, or vandalized 

property, and to guard the police from [the] danger [the contents in the 

car may pose to the police or to others.]”21 Still the department’s policy 

“should be designed to produce an inventory[,]” and under the policy “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.”22

That said, courts need not apply an all or nothing requirementto a 

department’s written policy authorizing an inventory search to find that 

a given inventory search an officer carried out pursuant to departmental 

policy was reasonable.23 So, police need not “affirm that they had 

absolutely no hopes or expectation of finding contraband or other 

inculpatory material” to justify inventorying a vehicle when the vehicle 

has been lawfully impounded.24

21Bertine, 479 U.S. at 380. 22Florida v. Wells, 495 U.S. 1, 4 (1990) (cleaned up).

23Id. 24Vargas v. State, 542 S.W.2d 151, 154 (Tex. Crim. App. 1976); see 

also United States v. Prescott, 599 F.2d 103, 106 (5th Cir. 1979) 
11

Austin argues the trial court erred in denying his motion to 

suppress because the State failed to carry its burden of proof to show the 

officers who inventoried his car conducted the search in good faith 

according to the written policies of the Allen Police Department. Those 

policies, according to Allen, required Officers Hein and Ramirez to 

itemize “all property belonging to a person who is arrested by the 

department.” Austin notes the list of items that Officer Hein wrote on the 

inventory performed on his car lists just four items in his car—three 

DeWalt® tools and one additional general category, which is listed as 

“misc. tools.” But Austin claims the itemized list in the inventory form on 

his car, admitted into evidence as State’s Exhibit 3, doesn’t include 

twenty-two items clearly visible in the videorecording taken from Officer 

Hein’s body camera. The videorecording from the body camera was 

admitted in the hearing as State’s Exhibit 1.25 According to Austin, 

(explaining that under the Fourth Amendment when “an inventory 

search is otherwise reasonable, its validity is not vitiated by a police 

officer’s suspicion that contraband or other evidence may be found”).

25To be fair, Austin argues these twenty-two items, which he listed, 

were only “illustrative of the problem[,]” and he says the twenty-two 

specific items he listed in his brief are not a comprehensive list of the 

items Officer Hein omitted from the inventory in the Vehicle Impound 

form he filled out conducting his search. 
12

because the evidence shows he was arrested on a minor traffic infraction 

and Officer Hein failed to follow the Department’s written Impounds

Order when searching his car, the trial court should have inferred Officer 

Hein’s purpose in searching his car was to investigate whether a crime 

had occurred and rejected the State’s claim that Hein was conducting the 

search pursuant to the requirements of the Police Department’s 

Impounds Order.

To support his claim the trial court’s ruling should be reversed, 

Austin relies heavily on Cox v. State, No. 05-14-00553-CR, 2015 Tex. App. 

LEXIS 3217 (Tex. App.—Dallas Apr. 1, 2015, no pet.) (not designated for 

publication). In Cox, an officer conducted an inventory search of a truck 

after the officer arrested the truck’s driver for a minor traffic violation

and impounded the truck.26 The arresting officer performed what he 

described as an inventory search of the truck and found meth. The officer 

who arrested Cox and performed the search testified that under the 

Department’s policy for impounding vehicles, he was required to 

document everything of value left in a vehicle on the impound inventory 

26Cox v. State, 2015 Tex. App. LEXIS 3217, at *2 (Tex. App.—Dallas 

Apr. 1, 2015, no pet.).
13

form.27 Yet the inventory form the officer filled out listed only two general 

categories of property without a description, and a videorecording from 

the officer’s body camera showed the truck contained many items that 

were not documented on the form the officer filled out.28 Importantly, 

unlike Austin’s case, a copy of the written policy of the City of 

Collinsville’s Police Department was not admitted into evidence, so the 

appellate court had only the testimony of the officer employed by the City 

who arrested Cox to rely on when evaluating what the police 

department’s policy required.29

Here, the evidence before the trial court includes the written policy

of the Allen Police Department. It describes the standardized procedures

Officer Hein follows in performing inventory searches. The Department’s

Impounds Order doesn’t require the City’s officer to document everything 

of value on the inventory form, as Austin claims. The Vehicle Impounds

form, which Hein filled out, does not require that everything in the car 

be document either. Simply put, with the exception of animals and 

27Id. at *5.

28Id. at *2-3 (“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.”).

29Id. at *5. 
14

property that an officer removes from a vehicle, the Department’s written 

policy appears to leave it to an officer’s discretion what items to put on 

the form. Second, Cox does not control the outcome in Austin’s appeal

because it is an unpublished opinion.

30 Under the Rules of Appellate 

Procedure,unpublished opinions have “no precedential value[.]”31

Here, the parties do not dispute that Austin was lawfully stopped, 

his car lawfully impounded, or that the City of Allen Police Department 

has a written policy stating what the Department’s officers are supposed 

to do when inventorying the contents of car impounded by police. So the

appeal hinges on two things: (1) Does the Impounds Order require Officer 

Hein to itemize “all property belonging to a person who is arrested by the 

department[;]” and (2) Are we required to defer to the trial court’s implicit 

finding that Officer Hein performed the inventory in good faith even if he 

didn’t complete exhaust all procedures required by the Impounds Order?

To begin, we note that the Department’s Impounds Orderdoes not 

state that the officer performing the inventory must itemize “all property 

belonging to a person who is arrested by the [D]epartment,” as Austin 

30See Cox, 2015 Tex. App. LEXIS 3217. 

31Tex. R. App. P. 47.4(a).
15

claims. Instead, Austin misquotes the sentence in the Department 

Impounds Order to make it fit the argument he makes on appeal. His 

claim that the Impounds Order required Officer Hein to itemize all the 

property in Austin’s car because Austin was arrested rests section II of 

the Vehicle Impounds Order under section labeled “Policy.” That section 

states: 

The Allen Police Department has an obligation to safeguard

all property belonging to a person who is arrested by this 

Department, is involved in a motor vehicle accident or any 

other situation which renders them incapable of protecting or 

otherwise disposing of the property themselves. This General 

Order provides the guidelines necessary for the removal or 

towing of vehicles that are not drivable due to accident, 

illegally stopped, standing or parked, stolen or abandoned or 

in this Department’s custody for any reason. Procedures for 

the removal, inventory and storage of property are also 

addressed.(emphasis added by the Court).

Thus, Austin changed the word safeguard to itemize because the word 

safeguard doesn’t help his argument. Safeguard does not imply a 

requirement that every item in a vehicle be itemized to protect it from 

harm. For example, safeguarding all property belonging to Austin 

necessarily included his car. So as the term safeguard is used in the 

Impounds Order, the term carries its common meaning, to guarantee and 
16

protect the property’s safety.32 Moreover, the section set out the policy, 

and is not the section that specifically instructs officers about what they 

are to do in performing an inventory on a vehicle. Those instructions are 

found in another part of the Impounds Order. 

We turn then to the part of the Impounds Order that does describe 

what an officer must do on impounding a vehicle. Section III of the 

Impounds Order identifies the “Duties and Responsibilities” of the 

Department’s officers. That section requires the Department’s officers to 

do these four things:

1. Accurately and legibly complete an Impound Report (APD189) on every vehicle impounded.

2. When items are removed from an impounded vehicle, 

ensure they are properly maintained, tagged, and placed in 

property/evidence storage.

3. Ensure non-motor vehicle items are documented on proper 

forms.

4. Do not leave the scene until the wrecker has secured the 

vehicle and is ready to leave unless the officer directs a 

Citizen on Patrol (COP) or a Public Safety Officer (PSO) to 

remain at the location.

In Addition to Section III, section VI B of the Impounds Orderdescribes 

that if an item is removed from a vehicle for safekeeping, such as money 

32See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1998(2002).
17

or jewelry, the item must be listed in the space labeled “Items Removed 

from Vehicle Prior to Inventory” on the Vehicle Impound Report (APD189). That page is not part of Exhibit 3, and no one asked if Officer Hein 

removed any items from Austin’s car. 

Lastly, Section VI C describes what officers must put on the 

inventory in the “Items Removed from Vehicle Prior to Inventory” should 

an officer find an animal in a vehicle. When the Impounds Order is 

viewed as a whole, the Department’s Impounds Order demonstrates its 

procedures are designed to allow an officer to produce an inventory of 

what an officer views as the significant items found in a vehicle along 

with any items removed from a vehicle. From examining the written 

Impounds Order, the trial court could have reasonably concluded it was 

not designed to allow an officer to search a vehicle for incriminating 

evidence without probable cause and that instead it was designed to 

produce an inventory of the items the officer, in the officer’s discretion, 

viewed as having a significant value sufficient to note the item on the 

inventory form. 

The trial court could also reasonably conclude from the evidence 

that Officer Hein complied with the Department’s procedures in filling 
18

out the Impound Report (APD-189). The Impound Report was admitted 

into evidence in the hearing. According to Officer Hein, he complied with 

the Department’s policies when he filled out the report, and as previously 

noted, nothing in the Department’s written policies required Officer Hein 

to list every item he found and left in the vehicle on the form. When 

Officer Hein was examinedand asked what he did, Officer Hein testified 

he just went through the car “to make sure there is nothing of value in 

there. If there is, then we annotate it.” When asked what he listed in the 

Impound Report, Hein testified he listed “some high value power tools, et 

cetera, and tools.” Importantly, no one asked Officer Hein whether, in 

hindsightand after having viewed the items in the videorecording, he left 

items of value off the Impound Report that, in hindsight, he believed he 

should have included on the form. And there is no testimony placing any 

value on any of the items in Austin’s car. 

Austin complains that the fact Officer Hein was opening things 

inside his car, like the car’s center console, shows he was looking for 

evidence of a crime. But the Impounds Order authorizes City of Allen 

police officers to open closed containers when inventorying cars. The 

Impounds Order, Section IV A 3, states: “The inventory shall include the 
19

inventory of closed containers that may be opened, without damage to 

the container.” During the hearing, Austin did not prove (and he does not 

argue) on appeal that Officer Hein damaged anything in his car,

including the center console. Thus, the trial court could reasonably reject 

Austin’s claim that Officer Hein opened the center console of the car and 

other closed containers because he was looking for evidence of a crime. 

Instead, the trial court was entitled to accept Officer Hein’s testimony 

that he was following the Department’s Impounds Order in carrying out 

his search. It follows that the trial court could reasonably conclude the 

officer based his decision to open the console on a standardized criteria 

applicable to conducting the inventory search at issue, not simply the 

officer’s suspicion of a crime.33

We conclude the trial court’s findings—that the Allen Police 

Department has a valid policy to inventory vehicles police have 

impounded, and that Officer Hein carried out his search in accord with 

that policy—are rationale findings from the evidence admitted in the 

hearing on Austin’s motion. Austin failed to produce any evidence in the 

hearing to prove that Officer Hein, who was following the Impounds 

33See Bertine, 479 U.S. at 375. 
20

Order and filled out the information required by the Impound Report 

(APD-189), acted in bad faith or for the sole purpose of investigating 

crime.34 

Conclusion

Because we conclude Austin’s arguments supporting his issue that 

the trial court erred in denying his motion to suppress lack merit, the 

trial court’s judgment is 

AFFIRMED.

_________________________

HOLLIS HORTON

Justice

Submitted on January 4, 2022

Opinion Delivered September 28, 2022

Do Not Publish

Before Golemon, C.J., Kreger and Horton, JJ.

34See id. at 372.