NO. 01-15-00130-CR

IN THE COURT OF APPEALS 

FOR THE FIRST SUPREME JUDICIAL DISTRICT 

HOUSTON, TEXAS 

.................................................................................................................................... 

MICHAEL W. PETERS * APPELLANT 

VS. * 

THE STATE OF TEXAS * APPELLEE 

.................................................................................................................................... 

TRIAL COURT NO. 1413407 

IN THE 176TH DISTRICT COURT 

OF HARRIS COUNTY, TEXAS 

................................................................................................................................. 

BRIEF FOR APPELLANT 

............................................................................................................................... 

 Charles Hinton 

 P.O. Box 53719 

 Houston, Texas 77052-3719

 832-603-1330

 chashinton@sbcglobal.net 

 SBOT #09709800 

 Attorney for Appellant 

ACCEPTED

01-15-00130-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

6/22/2015 7:27:36 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 6/22/2015 7:27:36 PM CHRISTOPHER A. PRINE Clerk
TABLE OF CONTENTS

Page:

Identity of Parties and Counsel i

List of Authorities ii

Statement of the Case 1

Point for Review Number One 1

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION

TO SUPPRESS EVIDENCE (RR 2:61).

Statement of the Facts 1

Summary of the Argument 4

Argument 5

Prayer for Relief 15

Certificate of Service 15

Certificate of Compliance 16
IDENTITY OF PARTIES AND COUNSEL

Judge: Honorable Stacey W. Bond

Complainant: The State of Texas

Trial Prosecutors: Ms. Courtney Chester

TBA #24077335

Ms. Mia Magness

TBA #00787363

1201 Franklin

Houston, Texas 77002

713-755-6908

Defense Counsel: Mr. William B. Portis, Jr.

TBA #16161000

8561 Long Point Road, Suite 205

Houston, Texas 77055

713-224-6473

Appellant: Mr. Michael W. Peters

Appellant's Counsel: Mr. Charles Hinton

TBA #09709800

P.O. Box 3719

Houston, Texas 77052-3719

832-603-1330

Appellee's Counsel: Ms. Devon Anderson

Harris County District Attorney

1201 Franklin

Houston, Texas 77002

713-755-5800

i
LIST OF AUTHORITIES

Cases: Page:

Colorado v. Bertine,

479 U.S. 367 (1987) 8

Delgado v. State,

718 S.W.2d 718 (Tex. Crim. App. 1986, reh. den.) 7

Florida v. Wells,

495 U.S. 1 (1990) 4, 8

Garza v. State,

137 S.W.3d 878 (Tex. App. -- Houston [1st Dist.] 2004) 4, 8

Moskey v. State,

333 S.W.3d 696 (Tex. App. -- Houston [1st Dist.] 2010) 9, 14

Rothenberg v. State,

176 S.W.3d 53 (Tex. App. -- Houston [1st dist.] 2004, PDRR) 8

Shepherd v. State,

273 S.W.3d 681 (Tex. Crim. App. 2008) 5

South Dakota v. Opperman,

428 U.S. 364 (1976) 7

Constitutions:

U.S. CONST. amendment IV 5

TEX. CONST. art. I, sec. 9 5

ii
TO THE HONORABLE JUSTICES OF THE COURT OF APPEAL

FOR THE FIRST SUPREME JUDICIAL DISTRICT:

Comes now, appellant Michael W. Peters, and submits this brief pursuant 

to TEX. R. APP. PROC. 38.1.

STATEMENT OF THE CASE

On January 8, 2015, the trial court denied appellant's motion to suppress 

evidence but also stated that appellant had permission to appeal her decision (RR

2: 61). On January 9, 2015, appellant pled guilty, without waiving his right to 

appeal the motion to suppress evidence ruling, to the first degree felony offense 

of possession with intent to deliver methamphetamine between 4 and 200 grams 

(RR 2: 63). The trial court found that there was sufficient evidence to find him 

guilty (RR 2: 65). On February 9, 2015, the trial court found appellant guilty and 

sentenced him to 10 years in prison. (CR I: 82). Appellant gave notice of appeal as 

to the trial court's denial of his motion to suppress (CR I: 84).

POINT FOR REVIEW NUMBER ONE

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

SUPPRESS EVIDENCE (RR 2: 61).

STATEMENT OF THE FACTS

1
State's Witnesses

Harris County Deputy Constable Kyle Cornelius conducted a traffic stop on a 

vehicle, with an expired registration, driven by its sole occupant, appellant 

Michael Peters, at 1942 hours on January 5, 2014 at North Main and Wallisville. 

Appellant pulled over in the parking lot of a grocery store (RR 2: 2, 7, 9, 11).

Deputy Cornelius identified State's Exhibit #4 as an accurate video and 

audio recording of the traffic stop. The exhibit was admitted into evidence and 

published for the trial court. While the video played, Deputy Cornelius gave a 

running commentary on it in response to the prosecutor's questions (RR 2: 14).

Since appellant was on parole, Deputy Cornelius had a safety concern and 

so he had appellant step out of the vehicle in order to do a Terry search for 

weapons. When informed by Dispatch that appellant had 6 class C traffic warrants 

pending, Deputy Cornelius arrested appellant (RR 2: 15-16). At that point, Deputy 

Cornelius followed Precinct 3's policy which was to tow the vehicle and conduct 

an inventory of the vehicle for any property (RR 2: 16-17).

Precinct 3's policy concerning the inventory directed that the deputy list 

any pertinent or valuable property plus any vehicle damage on the tow slip which

2
also contains the vehicle information, case number and appellant's name. The

policy directed Deputy Cornelius to open any container that was not locked and 

Deputy Cornelius proceeded accordingly (RR 2: 18-19). As he inventoried the 

vehicle, Deputy Cornelius opened the center console and found a towel at the 

top. Inside of the towel, he felt what he believed to be a methamphetamine pipe. 

Inside the towel, he found a glass methamphetamine pipe containing what he 

believed to be burnt methamphetamine residue (RR 2: 20).

At this point, Deputy Cornelius, besides conducting the inventory, also 

began a probable cause search for any more illegal substances (RR 2: 20-21).

Deputy Cornelius located a small flat safe. He opened it and found 5 clear plastic 

baggies containing a crystal like substance that field tested positive for 

methamphetamine (RR 2: 21-22). 

Deputy Cornelius filled out the standard Precinct 3 tow slip and inventory 

form (RR 2: 26-27). Appellant did not give Deputy Cornelius permission to either 

impound his vehicle or to search it (RR 2: 28-29). Deputy Cornelius testified that it 

was correct that, according to his training, he would not have a right to conduct 

an inventory search of an impounded vehicle if he couldn't see any contraband in 

plain view in the vehicle (RR 2: 29-30).

3
Appellant's vehicle was drivable and it didn't create any kind of hazardous 

condition. It was not legally parked and Deputy Cornelius refused appellant's 

request to call a friend to move the vehicle. Deputy Cornelius didn't see any 

contraband in the vehicle until he started the inventory (RR 2:30-31). Deputy 

Cornelius had to pick up and look under the towel before he saw the pipe. The 

pipe was inside the towel (RR 2: 33).

State's exhibit 5 (RR 3: 7), a copy of the Precinct 3 towing and inventory 

policy, was identified by Deputy Cornelius and admitted into evidence (RR 2: 51-

52). Deputy Cornelius testified that he complied with the policy (RR 2: 53).

SUMMARY OF THE ARGUMENT

Deputy Cornelius used the inventory "as a ruse for general rummaging in 

order to discover incriminating evidence." Florida v. Wells, 495 U.S. 1, 4 (1990). 

Deputy Cornelius' inventory of appellant's vehicle "was clearly a pretext for an 

investigatory motive." Garza v. State, 137 S.W.3d 878, 883 (Tex. App. -- Houston 

[1st Dist.] 2004.

The trial court erred in denying appellant's motion to suppress the illegally 

seized methamphetamine in both the vehicle's center console and in the small

flat safe.

4
ARGUMENT

There was no search warrant in this cause (RR 3: 5).

Appellant's motion to suppress evidence claimed that the search of his 

vehicle violated both his Fourth Amendment rights under the U.S. Constitution 

and his rights under the Texas Constitution's Article I, Sec. 9. (CR I: 21).

Appellant claims that Deputy Cornelius did not comply with Precinct 3's 

police departmental vehicle inventory policy and that the trial court erred in 

denying appellant's motion to suppress evidence of the methamphetamine that 

was seized as a result of the illegal inventory search.

An abuse of discretion is the standard of review utilized in the review of a 

trial court's denial of a motion to suppress and the facts are viewed in the light 

most favorable to the trial court's decision. Almost total deference is given to the 

trial court's express or implied determination of historical facts while the

application of the law of search and seizure to those facts is reviewed de novo. 

Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008).

Deputy Cornelius conducted a traffic stop on appellant's vehicle due to an 

expired vehicle registration (RR 2: 11). He arrested appellant after being advised 

by dispatch that appellant had 6 traffic warrants . Deputy Cornelius testified that

5
Precinct 3's policy in such a situation was "To tow the vehicle and make an

inventory of the vehicle for any valuable property (RR 2: 15-16)."

Pursuant to policy the deputy called a wrecker (RR 2: 17) and began the 

inventory of appellant's vehicle (RR 2: 19). In performing the inventory, Deputy

Cornelius used a Precinct 3 carbon copy to list pertinent or valuable property. The 

inventory is performed to protect the appellant, his property and also to protect 

Deputy Cornelius (RR 2: 18).

During the inventory, Deputy Cornelius found what he believed to be a 

methamphetamine pipe with some fresh residue wrapped in a towel that he 

found in the vehicle's center console (RR 2: 19-20). Upon finding the pipe, Deputy 

Cornelius stated that he then began a dual purpose inventory and "probable 

cause search" of the vehicle. The inventory was for valuable property and the 

"probable cause search" was "for anymore illegal substances" (RR 2: 20-21).

During the inventory and search, Deputy Cornelius found a small flat safe 

and opened it. Inside, he found 5 clear plastic baggies containing a crystal like 

substance which tested positive for methamphetamine (RR 2: 21). Inside the safe, 

the deputy also found a digital scale, Xanax bars, assorted pills, stamps, a green 

leafy substance and a rolled cigarette that smelled of marijuana (RR 2: 22).

6
In denying appellant's motion to suppress evidence of the controlled

substances seized by the deputy, the trial court stated, in pertinent part, that:

(RR 2: 61):

" .... I have also read those cases provided by the State of Texas, Delgado

versus State, and that cite is 718 S.W.2d 718,, and then Rothenberg versus State, 

that's 176 S.W.3d at 53, and based on the testimony of the officer and my review 

of the case law, I will deny your motion to suppress .... "

Concerning an inventory of a vehicle's contents, the Court of Criminal

Appeals in Delgado v. State, 718 S.W.2d 718, 721 ( Tex. Crim. App. 1986, reh.

den.), cited the United States Supreme Court case of South Dakota v. Opperman, 

428 U.S. 364 (1976) for the holding that inventories conducted pursuant to 

standard police procedures are reasonable. The Court of Criminal Appeals further 

clarified the vehicle inventory issue by specifically stating that "One of the 

instances in which an automobile may be validly impounded and inventoried is 

where the driver is removed from his automobile and placed under custodial 

arrest and no other alternatives are available other than impoundment to insure 

the protection of the vehicle." Id. at 721.

Also cited and relied upon by the trial court as a basis for her decision to

7
deny appellant's motion to suppress the evidence of the methamphetamine was

Rothenberg v. State, 176 S.W.3d 53 (Tex. App. -- Houston [1st Dist.]. 2004, PDRR).

In Rothenberg, id. at 56, this First Court of Appeals cited Colorado v.

Bertine, 479 U.S. 367, 371 (1987) for the proposition that "The inventory has long 

been recognized as falling outside the Fourth Amendment's warrant 

requirement." This Court also stated that "the Fourth Amendment to the 

United States Constitution allows police to open closed -- even locked --

containers as part of the inventory of an automobile, as long as they do so in 

accordance with standardized police procedures and as long as the police do not 

act in bad faith or for the sole purpose of investigation. Id. at 57. Florida v. Wells, 

495 U.S. 1, 4 (1990).

In Garza v. State, 137 S.w.3d 878, 885 (Tex. App. -- Houston [1st Dist.] 

2004). this Court stated:

"The Supreme Court has held that, under the Fourth Amendment, a

peace officer may open a closed container as part of an inventory of 

an automobile as long as the inventory is conducted in good faith

pursuant to reasonable standardized police procedures. Bertine, 479

U.S. at 374, 107 S.Ct. at 742-43. We find this Fourth Amendment

8
authority to be reasonable, persuasive, and in harmony with Texas'

protection against unreasonable searches and seizures. Accordingly,

we further hold that, under Article I, section 9, this standard applies

in the context of inventories."

Appellant suggests that this Court's opinion in Moskey v. State, 333 S.W.3d 

696 (Tex. App. -- Houston [1st Dist.] 2010) is not only one that is factually similar 

to appellant's case but also aptly and thoroughly sets forth the law that is 

applicable to a proper appellate analysis of appellant's complaint.

Appellant's complaint is that the trial court erred in denying his motion to 

suppress evidence (RR 2: 61). The State's evidence failed to satisfy its burden to 

demonstrate that Deputy Cornelius conducted the inventory search of appellant's 

vehicle in accordance with Precinct 3's standardized police procedures. The trial 

could not have reasonably determined that Deputy Cornelius conducted a valid 

inventory search and, therefore, the trial court abused its discretion in denying 

appellant's motion to suppress evidence.

Based on the law as set forth in Moskey, id., appellant concedes that the 

traffic stop of appellant's vehicle and his arrest were lawful. Appellant also admits 

that the impoundment of his vehicle was proper and that the deputy had a legal

9
right to perform an inventory of appellant's vehicle.

However, appellant contends that the State's evidence failed to 

demonstrate that Deputy Cornelius conducted the inventory search according to 

Precinct 3 police departmental policy. Id., at 700.

State's Exhibit #5 (RR 3: 7), the Precinct 3 inventory policy, was offered and

admitted into evidence (RR 2: 51). Deputy Cornelius' inventory form is reflected in

the appellate record as Defense No. CX-1 (RR 3: 11).

The trial court noted for the record the following:

(RR 2: 62):

" THE COURT: We're on the record in Cause No. 1413407, the State of Texas 

versus Michael Peters. Before we enter into the plea bargain that was part of the 

motion to suppress, the dispositive motion to suppress, we wanted to get on the 

record at the request of Mr. Portis that the State will secure from the officer the 

inventory slip that was submitted to his department as a result of the 

impoundment of Mr. Peters' car.

MS CHESTER: Yes, your Honor.

THE COURT: That will be included in the record.

MS. CHESTER: Yes, your Honor.

10
MR. PORTIS: Is that your stipulation? That was my stipulation.

MS. CHESTER: I will ask him and attempt to get it to the best of my ability.

We will make sure to look everywhere to try to find it.

THE COURT: All right. He seems confident that he filed it with his report.

MR. PORTIS: I think he told me that two or three times.

MS. CHESTER: Shouldn't be a problem.

MR.. PORTIS: Thank you so much."

Deputy Cornelius testified that he had a Precinct 3 carbon copy tow slip 

form on which he listed any pertinent or valuable property that he found during 

his inventory of appellant's vehicle (RR 2: 18). As he was inventorying the vehicle, 

Deputy Cornelius opened the center console and found what he believed to be a 

methamphetamine pipe containing methamphetamine residue inside of a towel 

(RR 2: 20).

Continuing on with his search, the deputy opened a small flat safe in which 

he found "five clear plastic bags containing a crystal like substance which later 

field tested positive for methamphetamine", "several new unused small clear 

plastic baggies with pictures of cats on 'em", "a digital scale", "baggies with three 

Xanax bars", "five Soma type pills", "six unknown gray and pink pills", "four round

11
white pills", "three small round pills", "a package of some small stamps",

"seventeen brown pills with two blue pills contained within the same bag', "a 

baggie containing a green leafy substance that smelled strongly of fresh 

marijuana" and "a baggie that contained a rolled cigarette that smelled strongly

of burnt marijuana (RR 2: 21-22)."

Deputy Cornelius testified that, while he did fill out a standard Precinct 3 

tow slip form on which he listed the items found during his inventory of 

appellant's vehicle, he did not bring the tow slip form to court (RR 2: 26-27, 32).

Deputy Cornelius said that he couldn't recall what valuables were in the 

appellant's vehicle without looking at his tow slip. However, he did recall some 

speakers in the back of the vehicle (RR 2: 37).

The Precinct 3 inventory policy contained in State's Exhibit #5 (RR 3: 7) 

states the following in regard to a prisoner's property and vehicle:

"3. Prisoner's Property

Each deputy, upon assuming custody of a prisoner, has the primary

responsibility to protect and safeguard all property which the prisoner

has in his possession at the time of arrest:

a. Deputies who arrest or transport or otherwise take custody of

12
a prisoner shall inventory the prisoner's property and maintain detailed

notes as to the type, amount, and disposition of the property. ....

4. Prisoner's Vehicles

When necessary will be towed and stored by an authorized wrecker

service.

....

All prisoners vehicles towed by this Department will be inventoried

including the trunk and glove compartment if accessible. ...."

The inventory form listed in the appellate record as "CX-1" (RR 3: 11) clearly 

shows that Deputy Cornelius did not conduct his inventory of appellant's vehicle 

pursuant to established Precinct 3 police department guidelines. The "Inventory 

Of Vehicle Contents" reflects the following:

"Cell Phone . Center Console

Misc Tools - Back Seat / Bag Of Change - Back Seat

Misc Clothes - Cargo Area"

The deputy did not maintain detailed notes of the type and amount of the 

property in appellant's vehicle. While there is mention of a cell phone there is no 

description of the cell phone as to type. His inventory contains no mention at all

13
of a towel with a methamphetamine pipe found in the center console of the

vehicle. His inventory does not even mention the flat safe in which he testified 

that he found 5 baggies of methamphetamine, digital scales, assorted pills, 

stamps and marijuana (RR 2: 21-22). Nor does his inventory list the contents of

the flat safe. His inventory mentions miscellaneous clothes and miscellaneous 

tools without stating their type or number which is apparently required by 

Precinct 3's inventory policy as set forth in State's Exhibit # 5 (RR 3: 11). His 

inventory does mention a bag of change but not the amount of money. There is 

no mention of the two speakers that Deputy Cornelius testified that he saw in the 

back of appellant's' vehicle (RR 2: 37).

As this Court stated in Moskey, supra, at 700, "The state bears the burden 

of establishing that the police conducted a lawful inventory search. ... The State 

satisfies this burden by demonstrating that (1) an inventory policy exists and (2) 

the officers followed the policy." State's Exhibit #5 (RR 3: 7) showed that an 

inventory policy did exist. The inventory form listed as "CX-1" (RR 3: 11) clearly 

demonstrates that Deputy Cornelius did not follow the policy.

Since Deputy Cornelius did not follow Precinct 3's established police

14
department policy for inventory of the vehicle's contents, his inventory search

amounted to a "ruse for a general rummaging in order to discover incriminating 

evidence." Moskey, supra, at 700. Therefore, the search for and seizure of the

methamphetamine was illegal.

The trial court erred in denying appellant's motion to suppress (CR I: 24; RR 

3: 61).

PRAYER FOR RELIEF

Appellant prays that this Court reverse the judgment of the court below 

and remand the case for further proceedings. TEX. R. APP. PROC. 43.2(d).

Respectfully submitted,

/s/Charles Hinton_____

Charles Hinton

P.O. Box 53719

Houston, Texas 77052-3719

832-603-1330

chashinton@sbcglobal.net

SBOT #09709800

Attorney for Appellant

CERTIFICATE OF SERVICE

I certify that a copy of appellant's brief has been served by e-filing upon the

15
appellate attorney for the State, Mr. Alan Curry, Chief Prosecutor, Appellate

Division, Harris County District Attorney's Office, 6th Floor, 1201 Franklin, 

Houston, Texas 77002 on June 22, 2015.

/s/Charles Hinton__________

Charles Hinton

CERTIFICATE OF COMPLIANCE

Appellant's counsel certifies that the word count of this document is 3,347.

/s/Charles Hinton__________

Charles Hinton

16