NO. 12-15-00055-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JORGE ZEPEDA, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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APPEAL FROM THE

COUNTY COURT AT LAW NO. 2

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Jorge Zepeda appeals his conviction for possession of a usable quantity of marijuana in 

an amount of less than two ounces. In one issue, Appellant argues that the trial court erred when 

it denied Appellant’s motion to suppress evidence. We affirm.

BACKGROUND

Tyler Police Officer Charles Boyce initiated a traffic stop after witnessing Appellant’s

failure to signal properly. Boyce discovered that Appellant’s driver’s license was suspended. 

Further, although the owner of the vehicle, Appellant’s father, had insured the vehicle, Appellant 

was listed as an excluded driver. Additionally, police dispatch informed Boyce that Appellant 

had prior convictions for driving without a valid license and failure to maintain financial 

responsibility (lack of insurance).

Due to Appellant’s failure to have a valid license or insurance coverage, and his prior 

convictions for the same offenses, Officer Boyce decided to impound the vehicle. Boyce 

contacted a towing company and then conducted an inventory search of the vehicle. During the

inventory search, Boyce found marijuana in the vehicle’s ashtray. 

Appellant was charged by information with the offense of possession of a usable quantity 

of marijuana in an amount of less than two ounces. Appellant filed a motion to suppress, 
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asserting that the inventory search was illegal. The trial court found that the Tyler Police 

Department’s policy regarding the impoundment and inventorying of vehicles mandates

impoundment following (1) confirmation that the defendant has a previous conviction for failing 

to maintain financial responsibility or (2) upon determination that the defendant’s license is 

currently suspended for not having insurance and the defendant fails to prove financial 

responsibility on the vehicle being operated. The trial court also found that a lawful inventory of 

Appellant’s vehicle was performed pursuant to Tyler Police Department’s policy. The trial court 

determined that Officer Boyce was acting in good faith and was not motivated by a desire to 

uncover evidence. 

The trial court concluded that a green leafy substance believed to be marijuana was 

discovered during a lawful inventory search pursuant to Tyler Police Department guidelines, 

Appellant’s vehicle was lawfully towed pursuant to Tyler Police Department guidelines, Officer

Boyce’s inventory search was in compliance with Tyler Police Department policy, and the 

substance believed to be marijuana was obtained pursuant to a lawful impoundment and 

inventory of Appellant’s vehicle. Accordingly, the trial court denied Appellant’s motion to 

suppress. 

Appellant later pleaded “guilty” to the charged offense. The trial court placed Appellant 

on deferred adjudication community supervision for two years and assessed a one hundred dollar 

fine. The trial court then certified that Appellant had a right to appeal, and this appeal followed.

MOTION TO SUPPRESS

In his sole issue, asserting that discovery of the marijuana was the result of an illegal 

search, Appellant contends that the trial court erred in denying his motion to suppress. Appellant 

argues that the search was improper because Officer Boyce did not consider mitigating 

circumstances before impounding the vehicle. Further, Appellant contends that the Tyler Police 

Department’s impoundment policy is not reasonable because it is inconsistent. He argues that 

one section mandates that a vehicle be impounded while certain subsections indicate that 

impounding is not automatic if certain mitigating circumstances exist.

Standard of Review

A trial court’s decision to grant or deny a motion to suppress is generally reviewed under 

an abuse of discretion standard. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App.
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2008). However, we review a trial court’s ruling on a motion to suppress under a bifurcated 

standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give 

almost total deference to a trial court’s determination of historical facts, especially if those 

determinations turn on witness credibility or demeanor, and review de novo the trial court’s 

application of the law to facts not based on an evaluation of credibility and demeanor. Neal v. 

State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). When deciding a motion to suppress 

evidence, a trial court is the exclusive trier of fact and judge of the witnesses’ credibility.

Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). Accordingly, a trial court may 

choose to believe or disbelieve all or any part of a witness’s testimony. See State v. Ross, 32 

S.W.3d 853, 855 (Tex. Crim. App. 2000) (en banc). Moreover, if, as here, the trial court makes 

express findings of fact, we view the evidence in the light most favorable to the ruling and 

determine whether the evidence supports those factual findings. Valtierra v. State, 310 S.W.3d 

442, 447 (Tex. Crim. App. 2010). When there is not an express finding on an issue, we infer 

implicit findings of fact that support the trial court's ruling as long as those findings are 

supported by the record. See id.

The prevailing party is entitled to “the strongest legitimate view of the evidence and all 

reasonable inferences that may be drawn from that evidence.” State v. Castleberry, 332 S.W.3d 

460, 465 (Tex. Crim. App. 2011). When all evidence is viewed in the light most favorable to the 

trial court’s ruling, an appellate court is obligated to uphold the ruling on a motion to suppress if 

that ruling was supported by the record and was correct under any theory of law applicable to the 

case. See Valtierra, 310 S.W.3d at 447-48; Ross, 32 S.W.3d at 856.

Applicable Law

If conducted pursuant to a lawful impoundment, a police officer’s inventory search of the 

contents of an automobile is permissible under the Fourth Amendment of the United States 

Constitution. See Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741, 93 L. Ed. 2d 739 

(1987); Benavides v. State, 600 S.W.2d 809, 810 (Tex. Crim. App. [Panel Op.] 1980). 

Inventories serve to protect (1) the owner’s property while it is in custody, (2) the police against 

claims or disputes over lost or stolen property, and (3) the police from potential danger. 

Opperman, 479 U.S. at 372, 107 S. Ct. at 741. Inventory searches should be designed to 

produce an inventory, not turned into a purposeful and general means of discovering evidence of 

a crime. Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 1635, 109 L. Ed. 2d 1 (1990). Unless 
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there has been a showing that the officer acted in bad faith or for the sole purpose of 

investigation, the officer may conduct an inventory search subsequent to a decision to impound a 

vehicle. Bertine, 479 U.S. at 372-73, 107 S. Ct. at 741-42.

The state bears the burden of proving that an impoundment is lawful and may satisfy its 

burden by showing that (1) the driver was arrested, (2) no alternatives other than impoundment 

were available to ensure the vehicle’s protection, (3) the impounding agency had an inventory 

policy, and (4) the policy was followed. Garza v. State, 137 S.W.3d 878, 882 (Tex. App.–

Houston [1st Dist.] 2004, pet. ref'd). Impoundment may be justified if the driver is unavailable 

to drive the vehicle, even if he was not arrested. See Moskey v. State, 333 S.W.3d 696, 701 

(Tex. App—Houston [1st Dist.] 2010, no pet.) (recognizing that law enforcement may impound 

vehicle when it is unable to be legally driven from the scene by anyone present); see also

Rodriquez v. State, 641 S.W.2d 955, 958 (Tex. App.–Amarillo 1982, no pet.) (noting that law 

enforcement may impound vehicle when driver becomes too ill to drive).

However, the state is not required to prove that impoundment and an inventory search 

was the least intrusive means of protecting the vehicle. Moskey, 333 S.W.3d at 700. Further, an 

officer need not independently investigate possible alternatives to impoundment absent some 

objectively demonstrable evidence that alternatives did, in fact, exist. Garza, 137 S.W.3d at 882.

Analysis

The State presented evidence that supports the trial court’s findings. Officer Boyce 

testified, explaining that he saw Appellant commit a traffic violation and initiated a traffic stop. 

He immediately smelled the odor of marijuana in Appellant’s vehicle. Boyce requested 

Appellant’s driver’s license and proof of insurance, and quickly recognized that Appellant was 

listed as an excluded driver on the insurance. Also, Appellant’s license was suspended. Boyce 

contacted dispatch, and learned that Appellant had prior convictions for driving while his license 

was invalid and failure to maintain financial responsibility. 

Officer Boyce decided that Appellant’s vehicle should be impounded because Appellant 

was not covered by the insurance for the vehicle, had a suspended license, and had prior 

convictions for driving without insurance and a valid license. Boyce conducted an inventory 

search of the vehicle after deciding to impound the vehicle. It was during this inventory search 

that Boyce discovered marijuana in the vehicle’s ashtray. Boyce believed that he followed Tyler 
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Police Department’s policy when he impounded the vehicle. The State placed the applicable 

police department policies into evidence. 

Appellant argues that Officer Boyce’s inventory search was unlawful because Boyce did 

not properly consider mitigating circumstances when he decided to impound the vehicle. We 

first note that Officer Boyce said that he considered mitigating circumstances, but did not believe 

that those circumstances required him to change his decision to impound the vehicle. As for the 

mitigating circumstances raised by Appellant, we address those in turn. 

The record shows that Appellant’s father had insurance on the vehicle. However, Officer 

Boyce recognized that the insurance policy was of no effect as to Appellant because Appellant 

was named as an excluded driver. Accordingly, Boyce knew that he could not allow Appellant 

to drive the vehicle. No one else was with Appellant. Therefore, there was no one at the scene 

who could lawfully drive the vehicle. See Moskey, 333 S.W.3d at 701.

Appellant points out that Officer Boyce failed to contact Appellant’s father or allow 

Appellant to contact his father. At the hearing, Appellant’s father contended that, if he had been 

called, he could have arrived at the scene of the traffic stop within ten minutes and he could have

retrieved the vehicle. However, Boyce did not know how long it would take for Appellant’s 

father to arrive at the scene, and he was under no obligation to investigate this potential 

alternative to impoundment. See Garza, 137 S.W.3d at 882.

Finally, Appellant notes that Officer Boyce stopped Appellant in the daytime near a 

parking lot, but did not consider moving the vehicle to the parking lot instead of having it towed. 

Even if we assume that Boyce determined this action would adequately protect Appellant’s 

vehicle, the State is not required to prove that impoundment and an inventory search was the 

least intrusive means of protecting the vehicle. Moskey, 333 S.W.3d at 700.

Appellant further argues that the Tyler Police Department policy on impoundment is 

unreasonable because it both requires impoundment and allows officers to avoid impoundment if

mitigating circumstances apply. We do not read the policy to restrict an officer’s discretion to 

consider mitigating circumstances. In fact, the policy specifically authorizes officers to exercise 

such discretion, and Officer Boyce testified that he considered mitigating circumstances in this 

case. Boyce simply chose to impound the vehicle because he did not believe that mitigating 

circumstances warranted a different decision. There is no showing that Boyce acted in bad faith 

or for the sole purpose of investigation. See Bertine, 479 U.S. at 372-73, 107 S. Ct. at 741-42.
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Based on our review of the record, we conclude that the evidence supports the trial 

court’s findings that Officer Boyce properly impounded Appellant’s vehicle and properly 

conducted an inventory search subsequent to the decision to impound. See Garza, 137 S.W.3d at 

882. Accordingly, the trial court did not abuse its discretion in denying Appellant’s motion to 

suppress. Appellant’s sole issue is overruled.

DISPOSITION

We affirm the trial court’s judgment.

BRIAN HOYLE

Justice

Opinion delivered May 27, 2016.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 27, 2016

NO. 12-15-00055-CR

JORGE ZEPEDA,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the County Court at Law No 2 

of Smith County, Texas (Tr.Ct.No. 002-82159-14)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court 

below for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.