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

at Fort Worth

___________________________ No. 02

- 18

- 00002

- CR

___________________________

On Appeal from the 16th District Court Denton County, Texas Trial Court No. F16

- 629

- 16

Before Gabriel, Pittman, and Birdwell, JJ. Memorandum Opinion by Justice Gabriel 

### E RIC 

### S TALLONS 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
A ppellant Eric Stallons appeals from his conviction and resulting seventeen

year sentence for intentionally or knowingly possessing four or more grams, but less
than two h undred grams, of a controlled substance (methamp hetamine)

. See Tex. Health & Safety Code Ann. § 481.115(a), (d); Tex. Penal Code Ann. § 12.42(b)

. In a single issue, he argues the trial court erroneously denied his motion to suppress
evidence

. We affirm.
I. BACKGROUND While on patrol on April 19, 2015, Denton police officer Jared Stevenson , who
had a police recruit riding with him as an observer , noticed Stallons driving a car that had an expired temporary license plate. Officer Stevenson stopped Stall ons , informed him why he had been stopped, and asked him for his driver’s license and proof of
insurance

. Stallons produced his driver’s license but did not have proof of insurance. While talking with Stallons, Officer Stevenson noticed that Stallons’s h ands were shaking and that he started sweating

. Officer Stevenson went back to his patrol car to
check i f Stallons had any warrants and to make sure his driver’s license was valid. As Officer Stevenson returned to Stallons’s car, he noticed that Stallo ns appeared to be stuffing something between the driver’s seat and the center console. When Officer Stevenson reached the driver’s side window, he asked Stallons about
the movement he had just seen . Stallons became even more nervous and told Officer
Stev enson that he had just been reaching for his phone. But Officer Stevenson3

noticed that Stallons’s phone was on top of the center console, not between the
driver’s seat and the console. Officer Stevenson became “a little nervous” given Stallons’s “furti ve movement” inside the car because he did not know whether there was a weapon between the driver’s seat and center console , so he asked Stallons if he could speak
with Stallons outside of the car . Officer Stevenson added that Stallons was not in any

trou ble but that he would prefer to speak with Stallons outside of the car because
Stallons’s movement inside the car had made him uncomfortable

. Stallons declined to speak with Officer Stevenson outside of the car. Officer Stevenson then walked to
the front passenger window and looked inside the car , but he did not see anything from that vantage point that would have ma d e it immediately necessary to get Stallons
out of the car. Officer Stevenson continued speaking with Stallons through the front
passenger w

indow, and during that conversation, Stallons informed Officer Stevenson
that he had received a ticket in Northlake for lack of insurance. Stallons further stated that he would not be able to prove to Officer Stevenson that he had insurance. After
Stallo ns told Officer Stevenson that he had received a ticket in Northlake for lack of
insurance and that he could not prove that he had insurance , Officer Stevenson decided to impound Stallons’s car. Officer Stevenson walked back around the car and to the fr ont driver’s side. As he did so, he told the recruit , who was standing nearby , that he was going to get
Stallons out of the car. When he reached the driver’s side , Officer Stevenson told4

Stallons that he needed to get out of the car, Stallons complied, a nd Officer Stevenson
had him walk to the back of the car. Officer Stevenson asked Stallons what he had put between his seat and the center console. Officer Stevenson told Stallons that he
did not believe Stallons was reaching for his phone

. Stallons rep lied that he had not put anything between the seat and center console but instead had been reaching for a wire that was connected to his phone.
Officer Stevenson asked Stallons again if he had put anything between the seat
and center console. Officer S tevenson told Stallons that he was going to impound
Stallons’s car because he did not have insurance but that he wanted to make sure Stallons had not been doing anything illegal. Officer Stevenson asked Stallons if he had ever been arrested, and Stallons replied that he had, though he volunteered that he had not been arrested for anything drug

- related. Officer Stevenson again asked Stallons if he had anything in his car that he should not have had or that he was trying to hide, and Stallons replied that h e was not trying to hid e anything. Officer Stevenson asked Stallons what he needed to get out of the car , and Officer Stevenson retrieved Stallons’s wallet and phone and gave them to him

. Officer Stevenson returned to the front driver’s side of the car and checked the area between the driver’s seat and center cons o le but did not discover a weapon

. He then returned to his patrol car and wrote Stallons a ticket for his lack of vehicle registration and insurance

. Officer Stevenson told Stallons that he n eeded to call someone to get him because the car was being impounded. Officer Stevenson again5

asked Stallons what he needed to get out of the car before it was towed , but Stallons did not identify any items.
Officer Stevenson then conducted an inventor y search of Stallon s ’s car. In the course of that search, Officer Stevenson moved a jacket that was resting on the front passenger seat and discovered a wadded

- up , clear plastic baggy lying on the corner of the passenger sea t that was nearest to the cente r console . The baggy contained a
white crystal substance that Officer Stevenson believed to be methamphetamine.
Officer Stevenson walked back to Stallons and placed him in handcuffs, and when
Stallons asked him why he was being arrested , Officer Stevenso n replied that he found the methamphetamine that Stallons had hid den

. Officer Stevenson then returned to Stallons’s car and conducted a probable

cause search. He discovered a black digital scale. Officer Stevenson again returned to
Stallons and escort ed him to the back of the patrol car. As he did so, Stallons dropped another baggy of methamphetamine on the ground that he had been hiding
in his waistband. Stallons filed a pretrial motion t o suppress evidence alleging that the search of
his car was illegal because it was performed without probable cause after a traffic stop. He asked the trial court to suppress any contraband found during the search. The trial court held a hearing and denied the motion without entering findings of fact or
conclusio ns of law

. Later, during the trial, the State offered, and the trial court admitted, the two baggies of methamphetamine into evidence.6

Stallons challenges the trial court’s denial of his motion to suppress. In a single issue, he argues Officer Stevenso n’s search of his car violated the Fourth
Amendment , principally complaining that it was not a valid inventory search.
II. STANDARD OF REVIEW We apply a bifurcated standard of review to a trial court’s ruling on a motion to suppress evidence. 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 totally to a trial court’s rulings on questions of historical fact and application

- of

- law

- to

- fact questions that turn on evalua ting credibility and demeanor, but we review de novo application

- of

- law

- to

- fact questions that do not turn on credibility and demeanor.
Amador , 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 64 4, 652

– 53 (Tex. Crim. App. 2002). When the record is silent on the reasons for the trial court’s ruling, or when there are no explicit fact findings and neither party timely requested findings and conclusions from the trial court, we imply the necessary f act findings that would support the trial court’s ruling if the evidence, viewed in the light most favorable to the trial court’s ruling, supports those findings. State v. Garcia

- Cantu , 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede v. State , 214 S .W.3d 17, 25 (Tex. Crim. App. 2007) . We then review the trial court’s legal ruling de novo unless the implied fact findings supported by the record are also dispositive of the legal ruling. State v. Kelly , 204 S.W.3d 808, 81 9 (Tex. Crim. App. 2006)

.7 III. APPLICABLE LAW The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const. amend. IV; Wiede , 214 S.W.3d at 24. A police
officer ’ s inventory of the contents of an automobile is permissible under the Fou rth
Amendment if it is conducted pursuant to a lawful impoundment of the vehicle. 1 South Dakota v. Opperman , 428 U.S. 364, 375

– 76 (1976); Moskey v. State , 333 S.W.3d 696, 700 (Tex. App.

— Houston [1st Dist.] 2010, no pet.). To qualify as a valid inventory search, the inventory must be conducted in good faith and pursuant to a reasonable standardized police procedure. Moskey , 333 S.W.3d

at 700. The inventory search must be designed to produce an inventory of the
vehicle ’ s contents and may not be used as a ruse for a general rummaging in order to discover incriminating evidence. Id. The State bears the burden to establish that the police conducted a lawful inventory search. Id. The State meets its burden by demonstrating that an inventory policy exists a nd the police officers followed the policy. Id.
IV
. DISCUSSION
Stallons concedes that the Denton Police Department had an inventory policy.
He raises t hree other reasons why Officer Stevenson’s search was illegal

. First,
Stallons argues that Officer S tevenson did not follow his department’s inventory

1 Stallons does not challenge the lawfulness of the impoundment

.8

policy and offers two reasons why

. One, he argues that Officer Stevenson’s testimony shows that he sought to document only valuable property inside the car during his inventory , as opposed to the inventor y policy’s requirement that he list any property inside the car. And two, Stallons contends that even assuming the police department’s policy allowed Officer Stevenson to document only valuable property in
the car during the inventory , his completed inven tory form shows he d id not do so because he listed only two items, “ M oney” and “ T ools.”
But these were not among the grounds Stallons raised as a basis to suppress the challenged evidence either in his motion to suppress evidence or in the suppression
he aring

. Thus, t hese arguments are not preserved for review. 2 See Tex. R. App. P.

2 Even if Stallons preserved these arguments, we would conclude the record sup ports a finding that Officer Stevenson followed the department’s policy. During the hearing, Officer Stevenson testified that his department had a vehicle impound and inventory policy pertaining to situations where operators of motor vehicles fail to prov ide proof of insurance. He testified that in those situations, the department generally impounded the vehicle and called for a wrecker service. Officer Stevenson stated that occurred fairly routinely. He testified that officers were required to fill out an inventory form when they impound ed a vehicle. And h e testified that he conducted such an inventory of Stallons’s vehicle and that he did so in a manner that was consistent with the department’s policy. This testimony supports a finding that Officer S tevenson followed his department’s policy when he performed the inventory search of Stallons’s car. See Stephen v. State , 677 S.W.2d 42, 44 (Tex. Crim. App. 1984) (noting that the State may satisfy its burden to establish a valid inventory search

“ through the testimony of the officers that an inventory policy existed and that the policy was followed ” and that “[t] here was no need to introduce into evidence a written inventory ”) ; Johnson v. State , No. 07

- 11

- 00186

- CR, 2013 WL 2297038, at * 2 (Tex. App.

—

Amaril lo May 21, 2013, no pet.) (mem. op., not designated for publication) (“ An officer ’ s testimony is sufficient to show an inventory search policy existed and was followed. ”)

.9

33.1(a); Clark v. State , 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (“ The point of error on appeal must comport with the objection made at trial. ”) ; Lovill v. State , 319 S.W. 3d 687, 691

– 92 (Tex. Crim. App. 2009) (“A complaint will not be preserved if the legal basis of the complaint raised on appeal varies from the complaint made at trial.”) ; see also Spradley v. State , Nos. 14

- 02

- 00266

- CR, 14

- 02

- 00267

- CR, 14

- 02

- 00268

- CR, 2003 WL 21282468, at * 2 (Tex. App.

— Houston [14th Dist.] June 5, 2003, no pet.) (mem. op., not designated for publication) (holding appellant ’s argument that inventory search was not conducted pursuant to lawful impoundment of car did not comport with trial obj ection and, thus, was not preserved )

. Second, Stallons maintains that Officer Stevenson’s inventory was merely a ruse for a general rummaging through the car for incriminating evidence

. Stallons
calls attention to Officer Stevenson’s initial search betw een the driver’s seat and the
center console

. A ccording to Stallons, the evidence shows Officer Stevenson suspected all along that he had been trying to conceal something illegal and that it was only after Officer Stevenson “found nothing” during his init ial search that he began discussing Stallons’s lack of insurance in more detail and made the decision to impound his car. Stallons further argues that Officer Stevenson’s intent to search the car for incriminating evidence is only confirmed by the fact th at when he arrested Stallons, he told Stallons that he had “found the meth that [Stallons had] hid. ” The trial court implicitly found that Officer Stevenson’s inventory of Stallons’s

car was not a ruse , and we conclude the record supports that implied fi nding

. First,10

c ontrary to Stallons’s contention, the evidence support s a finding that Officer
Stevenson made the decision to impound Stallons’s car before he had performed any
search of the car. Officer Stevenson testified that he made the decision to im pound
Stallons’s car when he learned that Stallons had previously received a ticket in Northlake for lack of insurance and that Stallons would not be able to prove that he
had insurance. Officer Stevenson’s bodycam video , which was admitted at the
suppres sion hearing, shows that Stallons told him these facts during their
conversation while Officer Stevenson was at the front passenger window, a conversation that took place before Officer Stevenson had performed any search of the passenger compartment. 3
In addition, a lmost immediately after Stallons told Officer Stevenson about his previous ticket and that he could not provide proof of insurance , Officer Stevenson
asked him where he was headed, and Stallons replied that he was going to meet his

3 At the hearing, Officer Stevenson’s recollection was that he got Stallons out of th e car and performed his initial search before Stallons told him about the prior ticket and confirming that he did not have insurance. Stallons relies on this testimony for his argument Officer Stevenson performed his initial search before he made the deci sion to impound the car

. But Officer Stevenson’s bodycam video shows that his encounter with Stallons occurred as we have described it. W e further note that on several occasions, in response to questioning from both the prosecutor and Stallons’s counsel, Officer Stevenson testified that his bodycam video would be the best source of evidence regarding his encounter with Stallons

. In the face of any conflict between Officer Stevenson’s testimony and his bodycam video, t he trial court, as the sole factfinde r, was entitled to resolve the conflict by believing the bodycam video. See Wiede , 214 S.W.3d at 24

– 25 (noting the trial judge “ is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony when enterta ining a motion to suppress ” (quotation omitted)).11

girlfriend. Officer Stevenson next asked Stallons if his girlfriend lived locally, and
Stallons confirmed that she did. Then Officer Stevenson began walking to the front driver’s side of the car , and as he did so, he told the police recruit who had been riding along with him that he was going to get Stallons out of the car. These additional facts support a conclusion that the reason Officer Stevenson asked Stallons if his girlfriend lived locally and told the police recruit that he was going to get
Stallons out of t he car was that he had decided to impound Stallons’s car. So the record supports a finding that Officer Stevenson made the decision to impound the

car not after his initial search turned up nothing, as Stallons contends, but before h e even got Stallons ou t of the car.
W ith respect to Officer Stevenson’s statement to Stallons upon arrest that he
had found the methamphetamine Stallons had hid den , we note that Officer Stevenson did testify th at before he searched the car, he harbored a suspicion that Stallon s may have been hiding something inside it , a fact that was confirmed by the bodycam
video

. However, t o the extent Stallons contends that Officer Stevenson’s suspicion
that he had hidden contraband in the car demonstrates that the inventory search was a

r use, we disagree. As the court of criminal appeals has noted, “[i] t would not be realistic to require that in justifying an inventory search the police must affirm that they had absolutely no hopes or expectation of finding contraband or other inculpator y material. ” Vargas v. State , 542 S.W.2d 151, 154

– 55 (Tex. Crim. App. 1976). Thus,12

“[a] n inventory search is reasonable under the requirements of the Fourth Amendment not for the reason that the subjective motives of the police are simplistically pure, b ut because the facts of the situation indicate that an inventory
search is reasonable under the circumstances. ” Id. at 155 ; see also United States v. Bosby , 675 F.2d 1174, 1179 (11th Cir. 19 82 ) (“ [T]he mere expectation of uncovering
evidence will not viti ate an otherwise valid inventory search

. ”) ; United States v. Prescott , 5 9 9 F.2d 103, 106 (5th Cir. 1979) (“ If 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. ”)

. As we have noted, an inventory search of a lawfully impounded vehicle is
reasonable under the Fourth Amendment. See Opperman , 428 U.S. at 372 (“[I] nventories pursuant to standard police procedures are reasonable. ”) ; Moskey , 333 S.W.3d at 700 (“ A police officer ’ s inventory of the contents of an automobile is permissible under the Fourth Amendment if conducted pursuant to a lawful impoundment of the vehicle. ”)

. Officer Stevenson testified that the Denton Police Department has a policy of invent orying vehicles that are impounded due to the failure to provide proof of insurance. Officer Stevenson stated that generally speaking, if officers with the Denton Police Department pulled someone over who did not have proof of insurance, the officers “wou ld impound the vehicle for no insurance and call for a wrecker service,” and he added that this was something that13

happened fairly routinely. Stallons does not contest the fact that he did not have proof of insurance when Officer Stevenson stopped him. Further, Officer Stevenson testified that he did not decide to impound
Stallons’s car because he believed an inventory would turn up something illegal. Rather, as noted above, the record supports a finding that Officer Stevenson decided to impound Stallon s’s vehicle because he had a prior ticket for failure to provide proof of insurance and because he d id not have pro o f of insurance. In these circumstances, the fact that Officer Stevenson may have also had a suspicion that Stallons was hiding something in his car did not vitiate the validity of the inventory
search. See Vargas , 542 S.W.2d at 154

– 155 ; Bosby , 675 F.2d at 1179. Finally, Stallons argues that Officer Stevenson’s initial search between the driver’s seat and center console was itself a n illegal warrantless search that so blatant ly
violated the Fourth Amendment that it tainted the subsequent inventory searc h , necessitating the suppression of any evidence found during the inventory search. Stallons bases this argument on the Supreme Court’s decis ion in Arizona v. Gant , a case involving the search

- incident

- to

- arrest exception to the Fourth Amendment’s warrant requirement. See 556 U.S. 332, 351 (2009) (“ Police may search a vehicle incident to a recent occupant ’ s arrest only if the arrestee is withi n reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the
vehicle contains evidence of the offense of arrest. ”).14

Stallons’s argument necessarily turns on his claim that Officer Stevenson’s
initial search of his car occurred before he impounded it . But as we have already explained, the record supports a finding that Officer Stevenson did not search Stallons’s car until after he had impounded it. Stallons concedes that the Denton Police Department has a p olicy of inventorying impounded vehicles, and he either did not preserve any arguments that Officer Stevenson failed to follow that policy when searching his car or, if he did preserve such arguments , the record supports a finding
that Officer Stevenson fo llowed the policy when conducting the search

. Accordingly,
because the record supports a finding that Officer Stevenson’s se arch of Stallons’s car was a valid inventory search , Gant is inapplicable. See Moskey , 333 S.W.3d at 700 (noting the State meets i ts burden to establish a valid inventory search by demonstrating (1) an inventory policy exists and (2) the officers followed the policy );
Garcia v. State , No. 05

- 10

- 00521

- CR, 2011 WL 5231426, at * 4 (Tex. App.

— Dallas Nov. 3, 2011, no pet.) (mem. op., not d esignated for publication) (“ Because the search at issue in this case satisfies the requirements for a valid inventory search, Gant does not apply. ”). In sum, w e conclude that the record supports a finding that Officer
Stevenson’s search of Stallons ’s ca r was a valid inventory search. Accordingly, the trial court did not err by denying his motion to suppress evidence. W e overrule
Stallons’s sole issue.15 V
. CONCLUSION Having overruled Stallons’s sole issue, we affirm the trial court’s judgment. See
Te x. R. App. P. 4 3.2 (a).
/s/ Lee Gabriel
Lee Gabriel Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: April 18, 2019