NOS. 12-17-00321-CR

 12-17-00322-CR

 12-17-00323-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JERRY WAYNE JERGER, JR., 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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§

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APPEALS FROM THE 114TH 

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Jerry Wayne Jerger, Jr. appeals his conviction for unlawful possession of a firearm by a 

felon and two convictions for manufacture or delivery of a controlled substance. In two briefs, 

each containing two issues, Appellant argues that the trial court erred by denying his motions to 

suppress and that the judgments contain clerical errors. We affirm.

BACKGROUND

On January 5, 2017, Detective Logan Smith of the Smith County Sheriff’s Office initiated 

a traffic stop on Appellant because a computer check on the vehicle’s license plates showed 

expired registration. After stopping Appellant, however, Smith observed that the registration 

sticker on the front windshield indicated that the vehicle’s registration was not expired. Smith 

performed a computer check on the sticker and learned that it belonged to another vehicle. Smith 

arrested Appellant for displaying the wrong registration insignia, and during a search of 

Appellant’s person incident to the arrest, he found a large bag of methamphetamine. Based on this 

incident, Appellant was charged by indictment with manufacture or delivery of a controlled 
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substance in penalty group 1, specifically by possessing four grams or more but less than two 

hundred grams of methamphetamine with intent to deliver. 

On February 7, 2017, Tyler Police Officer Steve Black stopped to talk to Appellant and 

two other people standing at a car wash. When Black asked about a U-Haul vehicle parked in one 

of the bays, Appellant said he was taking it from Bullard to Lake Palestine. After obtaining 

Appellant’s identification, Black determined that he had a parole violation warrant. When Black 

attempted to arrest Appellant, he fled on foot but was apprehended a short time later. After 

Appellant was placed in custody, Black asked Officer John Holland to check out the U-Haul 

vehicle. Upon looking through the vehicle’s windows with a flashlight, Holland saw a bag of 

methamphetamine and the muzzle end of a handgun. Surveillance video confirmed that Appellant 

was the driver of the vehicle. Based on this incident, Appellant was charged by two indictments 

with unlawful possession of a firearm by a felon and manufacture or delivery of a controlled 

substance in penalty group 1, specifically by possessing two hundred grams or more but less than 

four hundred grams of methamphetamine with intent to deliver. 

After the trial court denied his motions to suppress, Appellant pleaded “guilty” to the 

charges. The trial court assessed his punishment at imprisonment for twenty years in the firearm 

case and fifty years in each of the controlled substance cases. This appeal followed.1

MOTIONS TO SUPPRESS

In Appellant’s first issue in Cause No. 12-17-00323-CR, he argues that the evidence found 

on his person should have been suppressed because the traffic stop was extended beyond the time 

necessary to complete its purpose. In Appellant’s first issue in Cause Nos. 12-17-00321-CR and 

12-17-00322-CR, he argues that the evidence found in the U-Haul should have been suppressed 

because the vehicle was under police control and officers did not obtain a warrant before searching 

the U-Haul. 

Standard of Review 

We review a trial court’s ruling on a motion to suppress under a bifurcated standard of 

review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Carmouche v. State, 10 

 

1 The January 2017 offense was assigned Cause No. 12-17-00323-CR on appeal. The February 2017 firearm 

case was assigned Cause No. 12-17-00321-CR, and the February controlled substance case was assigned Cause No. 

12-17-00322-CR. Appellant submitted one brief addressing Cause No. 12-17-00323-CR and another addressing Cause 

Nos. 12-17-00321-CR and 12-17-00322-CR.
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S.W.3d 323, 327 (Tex. Crim. App. 2000). 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. 2008). 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). We uphold a trial 

court’s ruling on a motion to suppress under any legal theory supported by the facts. Alford v. 

State, 400 S.W.3d 924, 929 (Tex. Crim. App. 2013).

January 2017 Offense

At the suppression hearing, Detective Smith testified that in response to discovering the 

registration sticker on Appellant’s vehicle belonged to another vehicle, he placed Appellant in 

custody. On cross-examination, defense counsel pointed out that in the video of the arrest, Smith 

indicated that he was arresting Appellant because his registration sticker was “fake.” Defense 

counsel further noted that the offense of displaying a fictitious registration insignia is a Class B 

misdemeanor and is distinct from the offense of displaying a registration insignia that is assigned

to another vehicle, which is a misdemeanor punishable by a fine only.2In his closing argument 

and in the written motion to suppress, defense counsel argued that Appellant’s arrest was based on 

a mistake of law because Smith said he was arresting Appellant for a Class B offense but he was 

guilty of a fine-only misdemeanor. Consequently, he argued that the evidence found during the 

search should be suppressed because the arrest was not lawful “as thought by the officer.” The trial 

court denied the motion to suppress, concluding that the arrest was “based on probable cause to 

believe [Appellant] committed the offense of displaying a registration sticker assigned to a 

different motor vehicle in the officer’s presence.” 

On appeal, Appellant argues that the evidence should be suppressed because the reason for 

the traffic stop concluded before the search occurred. See Rodriguez v. U.S., 135 S. Ct. 1609, 

1614, 191 L. Ed. 2d 492 (2015) (Authority for seizure ends when tasks tied to traffic infraction are 

 

2 See TEX. TRANSP. CODE ANN. § 502.475(a)(1), (a)(4), (b), (d) (West 2013).
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or reasonably should be completed). He contends that Detective Smith should have released him 

after determining he was guilty of only a Class C offense. However, a peace officer may arrest an 

offender without a warrant for any offense committed within his presence or view. TEX. CODE 

CRIM. PROC. ANN. art. 14.01(b) (West 2005). Arrests for even very minor offenses committed in 

an officer’s presence do not violate the Fourth Amendment as long as they are based on probable 

cause. Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557, 149 L. Ed. 2d 

549 (2001). Here, the undisputed fact that Smith saw Appellant commit the offense of displaying 

the wrong registration insignia gave him probable cause for a lawful arrest. Therefore, the trial 

court did not abuse its discretion by denying the motion to suppress the evidence found on his 

person. Accordingly, we overrule Appellant’s first issue in Cause No. 12-17-00323-CR.

February 2017 Offense

At the suppression hearing, Officer Holland testified that he looked through the passenger’s 

side window of the U-Haul with a flashlight and saw a partially open backpack. Inside the 

backpack, he could see a Ziploc bag containing a substance he believed to be methamphetamine.

He then looked through the driver’s side window and saw the muzzle end of a handgun. Holland 

was aware that Appellant had a parole violation warrant and was therefore a convicted felon.

Holland eventually entered the vehicle and retrieved the contraband.

On cross-examination, defense counsel questioned Officer Black and Officer Holland 

regarding how many officers were involved with the case that night. Black testified that “probably 

quite a few” officers were at the scene, but could not say who or how many were there. Holland 

testified that he remembered seeing seven specific officers at the scene, including himself. Defense 

counsel further questioned the officers regarding the police department’s vehicle search policy.

Apparently reading from the policy, defense counsel stated, “When practical, and if the imminent 

destruction or removal of property appears unlikely, a search warrant should be obtained if 

necessary and practical. And [sic] officer may guard the property until a search warrant can be 

executed.” Black responded, “Okay,” and acknowledged that no search warrant was obtained 

before Holland entered the vehicle.

In its closing argument, the State argued that the warrantless search was lawful under both 

the plain view exception and the automobile exception. In his closing argument and the written 

motion to suppress, defense counsel argued that the search was unlawful because no exigent 

circumstances existed and the police department’s guidelines were violated. The trial court denied 
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the motion to suppress, concluding that “[t]he search of [Appellant’s] U-Haul truck was valid and 

supported by Officer Holland’s plain view observation of evidence that a crime was being 

committed[.]” 

On appeal, Appellant argues that the evidence found in the U-Haul vehicle should be 

suppressed because the search was unreasonable. He contends that the search was unreasonable 

because twelve police officers were involved in the case and the police department’s policy 

recommends obtaining a warrant before searching a vehicle. Appellant further argues that the 

plain view exception to the warrant requirement does not apply because it was not immediately 

apparent that the tip of the handgun was contraband. 

We uphold the trial court’s denial of the motion to suppress in these cases, but not under 

the theory on which it based its ruling. See Alford, 400 S.W.3d at 929. The trial court concluded 

that the search of the vehicle was lawful under the plain view exception. We disagree. Seizure of 

an object is lawful under the plain view exception if three requirements are met. Keehn v. State, 

279 S.W.3d 330, 334 (Tex. Crim. App. 2009). First, the law enforcement official must lawfully 

be located where the object can be plainly viewed. Id. Second, the incriminating character of the 

object in plain view must be immediately apparent to the official. Id. Third, the official must have 

the right to access the object. Id.

Under the court of criminal appeals’s reasoning in Keehn, the third requirement is not met 

in this case. See id. at 335. In Keehn, a police officer looked through the windows of a van parked 

in the driveway of a home where he was conducting a theft investigation and saw a propane tank 

that appeared to contain anhydrous ammonia. Id. at 332. The police subsequently entered the van 

and seized the tank without a warrant. Id. The court of criminal appeals held that the search and 

seizure were not lawful under the plain view exception because the police had no lawful right to 

enter the van under that doctrine. Id. at 335. Likewise, although Officer Holland was lawfully 

located at the car wash, and the incriminating character of the gun and the methamphetamine were 

immediately apparent to him, he had no lawful right to enter the U-Haul under the plain view 

doctrine. See id.

However, like the police in Keehn, Officer Holland had a lawful right to enter the U-Haul 

under the automobile exception. See id. at 336. Under the automobile exception, law enforcement 

officials may conduct a warrantless search of a vehicle if it is readily mobile and there is probable 

cause to believe that it contains contraband. Id. at 335. Here, the record supports a finding that 
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the U-Haul vehicle was readily mobile. Appellant told Officer Black that he was taking the vehicle 

from Bullard to Lake Palestine, and the surveillance video showed the vehicle driving into the car 

wash. Furthermore, the record supports a finding that Officer Holland had probable cause to 

believe the vehicle contained contraband. Holland testified that he observed a substance that 

appeared to be methamphetamine in a Ziploc bag and the “very pronounced and obvious muzzle 

end of a 1911 pistol.” Moreover, while Holland was en route to the scene, Black informed him 

that Appellant had a parole violation warrant, thus apprising Holland of the fact that Appellant was 

a convicted felon. We conclude that the search and seizure were lawful under the automobile 

exception. See id. at 336. 

Furthermore, Appellant cites no authority for the proposition that the violation of a police 

department’s policy renders a search and seizure unlawful under the Fourth Amendment. See TEX.

R. APP. P. 38.1(i) (requiring brief to contain clear and concise argument with appropriate citations 

to authorities). Consequently, we conclude that this argument is without merit, and that the trial 

court did not abuse its discretion by denying the motion to suppress the evidence found in the 

vehicle. Accordingly, we overrule Appellant’s first issue in Cause Nos. 12-17-00321-CR and 12-

17-00322-CR. 

JUDGMENT ERROR

In Appellant’s second issue in each brief, he argues that the judgments in the controlled 

substance cases state the wrong offense. He contends that the judgments should be modified to 

state he is guilty of “possession of a controlled substance with intent to deliver” rather than 

“manufacture or delivery of a controlled substance in penalty group 1.” The State argues that 

“manufacture or delivery of a controlled substance in penalty group 1” is the correct name of 

Appellant’s offenses. We agree with the State. 

Under Texas Health and Safety Code Section 481.112(a), a person commits the offense of 

manufacture or delivery of a substance in penalty group 1 if he “knowingly manufactures, delivers, 

or possesses with intent to deliver” a substance in penalty group 1. TEX. HEALTH & SAFETY CODE 

ANN. § 481.112(a) (West 2017). Methamphetamine is a substance in penalty group 1. Id. § 

481.102(6) (West Supp. 2017). Thus, possessing methamphetamine with intent to deliver it is one 

way to commit the offense of manufacture or delivery of a controlled substance in penalty group 

1. See id. §§ 481.112(a), 481.102(6); see also Lopez v. State, 108 S.W.3d 293, 297 (Tex. Crim. 
7

App. 2003). Therefore, we conclude that Appellant’s judgments correctly state the offense names. 

Accordingly we overrule Appellant’s second issue in each brief.

DISPOSITION

Having overruled Appellant’s first and second issues in each brief, we affirm the trial 

court’s judgment.

GREG NEELEY

Justice

Opinion delivered September 19, 2018.

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

SEPTEMBER 19, 2018

NO. 12-17-00321-CR

JERRY WAYNE JERGER, JR.,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 114th District Court 

of Smith County, Texas (Tr.Ct.No. 114-0552-17)

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.

Greg Neeley, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 19, 2018

NO. 12-17-00322-CR

JERRY WAYNE JERGER, JR.,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 114th District Court 

of Smith County, Texas (Tr.Ct.No. 114-0553-17)

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.

Greg Neeley, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 19, 2018

NO. 12-17-00323-CR

JERRY WAYNE JERGER, JR.,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 114th District Court 

of Smith County, Texas (Tr.Ct.No. 114-0557-17)

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.

Greg Neeley, Justice.

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