In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-24-00133-CR NO. 09-24-00134-CR ________________
ROCKY ANTHONY GAMEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause Nos. 22-11-15507-CR, 22-11-15513-CR ________________________________________________________________________
MEMORANDUM OPINION
In two causes, Rocky Anthony Gamez was indicted for the third-degree felony
offense of unlawful possession of a firearm by a felon and first-degree felony offense
of possession of a controlled substance with intent to deliver in an amount greater
than or equal to four grams but less than 200 grams. See Tex. Penal Code Ann. §
46.04(a), (e) (illegal possession of firearm by felon); Tex. Health & Safety Code
Ann. § 481.112(a), (d) (possession of a controlled substance with intent to deliver).
1 A jury found Gamez guilty of both offenses, and the trial court found two
enhancements “true” then sentenced him to forty years of confinement on each
charge to run concurrently. The trial court denied Gamez’s Motion to Suppress the
search and contents of a backpack found in his vehicle. In a single issue, Gamez
challenges the trial court’s denial of his Motion to Suppress. Gamez argues that the
impoundment of his vehicle and subsequent inventory were unlawful.1 We affirm
the trial court’s judgments as discussed below.
BACKGROUND
After arresting Gamez for driving while license invalid (“DWLI”) with a prior
DWLI offense, Montgomery County Sheriff’s Office (“MCSO”) deputies
impounded his vehicle for the safekeeping of the property. They then began
inventorying the vehicle’s contents. During the inventory, one deputy located a
camouflage backpack in the backseat of Gamez’s vehicle, and upon opening it,
observed items including scales and baggies, which the other deputy immediately
recognized as contraband. The deputies then proceeded with a probable cause search
of the backpack, pulled out substances individually packaged, unlabeled pill bottles,
1 The clerk’s records contain signed Orders denying the Motion to Suppress but do not contain the written Motion to Suppress. The trial court referenced a written Motion to Suppress at the hearing, and defense counsel represented to the trial court that she did not know what cause number she filed the Motion in. The State did not object to the lack of a written motion, and the trial court conducted a hearing on the Motion to Suppress. The State agreed that Gamez’s arguments made orally at the hearing were specific enough. 2 and a semiautomatic firearm. After a criminal background search revealed a prior
felony conviction, the nature of the arrest changed from DWLI to that of the third-
degree felony offense of felon in possession of a firearm. Subsequent testing
revealed some substances found in the backpack were methamphetamines.
SUPPRESSION HEARING
Before trial, Gamez filed what was referenced as a “boilerplate” Motion to
Suppress, which is not contained in either Clerk’s Record on appeal. Following jury
selection and before opening statements, the trial court conducted a hearing on the
Motion to Suppress. Upon the State’s request, the trial court asked Gamez to specify
his arguments for the Motion to Suppress at the hearing’s outset.
Gamez’s Initial Arguments at the Suppression Hearing
Gamez argued that deputies conducted an “inventory search” of Gamez’s car
following a custodial arrest, and in the inventory of the car, they found a backpack
in the backseat. Gamez cited South Dakota v. Opperman and argued that for the
inventory to be legal, the impoundment must first be legal; here, he contended that
deputies illegally impounded the car, thus the inventory was illegal. See 428 U.S.
364, 366–72 (1976). Gamez also noted the automobile’s seizure must be reasonable
under the Fourth Amendment and cited Benavides v. State, then discussed the
circumstances in which impoundment would be lawful. See 600 S.W.2d 809, 810
(Tex. Crim. App. [Panel Op.] 1980). Gamez asserted the only situation that might
3 apply would be a custodial arrest leading to impoundment, since he was arrested for
DWLI.
Gamez argued that the vehicle was legally parked on private property in a gas
station parking lot, and deputies failed to ask the property owner whether it could
remain there. Gamez claimed deputies could have investigated alternatives to
impoundment, including his wife or boss. Even so, Gamez conceded that the policy
manual indicates officers do not have to extend their traffic stop but contended there
was no “traffic stop” here. Gamez also argued that despite the policy manual, police
procedure cannot be used to “whittle away at the Fourth Amendment.”
Testimony of Specialist Jacob Rodgers
Rodgers testified that he is a deputy specialist with MCSO who works on the
Montgomery County Narcotics Enforcement Team. Rodgers explained that on
November 12, 2022, he initially conducted a traffic stop on a white van traveling
eastbound on Sawdust Road, who failed to indicate a turn onto the southbound feeder
of Interstate 45. During the traffic stop, Rodgers developed probable cause to arrest
the vehicle’s two occupants. He arrested the driver for DWLI and possessing
marijuana, and he arrested the passenger for possession of a controlled substance.
The van’s occupants came from a worksite on Sawdust, and since it was a company
vehicle, Rodgers allowed them to call someone to come get the van rather than
impound it.
4 During Rodgers’s testimony, a copy of his bodycam video was admitted into
evidence. Rodgers said that Gamez arrived on the scene in a red RAV4 about ten
minutes after his coworkers called him. Gamez parked his red RAV4 in the gas
station parking lot about twenty or thirty feet from the van, then Gamez walked up
to the scene where Rodgers spoke with him. Gamez “indicated that he was there to
take possession of the white work van.” Rodgers explained that he allowed the
suspects to call Gamez as a courtesy and to not impose an additional hardship; if it
does not “unduly extend” the traffic stop, he is willing to do that. Here, Rodgers said
that a wrecker would not have arrived for ten or fifteen minutes, so it was “perfectly
adequate” since Gamez arrived before a wrecker. It was a faster way to get the
individuals he already had in custody off the side of the road.
Rodgers testified that when Gamez arrived, according to the MCSO policy,
Rodgers had to identify him by name, date of birth, and identification number of
some kind to verify he was releasing the vehicle to a responsible individual who did
not have any outstanding license issues. When Rodgers asked Gamez for a driver’s
license, Gamez returned to his vehicle, then provided a “Texas ID” to Rodgers.
Rodgers testified that when Gamez produced the ID, he asked if Gamez had a
driver’s license. According to Rodgers, Gamez responded that he did not but was
working on getting one, so Rodgers told Gamez that he could sit with the vehicle if
another licensed driver was on their way. Gamez told Rodgers that his boss was on
5 his way from Houston, so Rodgers responded that Gamez could sit with the two
vehicles, “but you cannot leave the parking lot because it’s not legal for you to drive
without a license.” According to Rodgers, if deputies release a vehicle to an
unlicensed driver, they must provide that admonishment.
Rodgers testified that he did not initially intend to arrest Gamez even knowing
he was driving without a license since Rodgers already had two people in custody
and wanted to find the “most expeditious method within reason” to get off the side
of the road. He explained that the longer he waited, the greater chance someone
would have a medical incident or someone else would cause a problem on the scene.
Rodgers changed his mind about arresting Gamez when he ran Gamez’s Texas ID
card. Rodgers learned that Gamez previously had a license, but it was revoked and
rendered ineligible for renewal. When Rodgers scrolled to the bottom of Gamez’s
driver’s license return, he saw that Gamez had multiple prior DWLI convictions,
“which enhances it from a Class C citation to a Class B arrestable offense.” Rodgers
explained that was the same offense that he had someone in custody for. Rodgers
described the information contained in the driver’s license return, which includes
licensure status, speeding offenses, and moving violations; he also explained it was
different than running their full criminal history.
Rodgers testified that since he believed Gamez committed the offense of
DWLI and had probable cause to believe Gamez drove on public roads from the
6 work site, Rodgers investigated further. He asked Gamez which public roadways he
operated on, and Gamez said he drove on Sawdust and on the Interstate 45
southbound feeder, which Rodgers knew were public roads in Montgomery County.
Rodgers then advised Gamez that he committed a Class B arrestable offense, DWLI
with a prior, and he arrested Gamez.
The State played portions of Rodgers’s bodycam video as Rodgers testified
about events shown on the video. Gamez asked Rodgers if someone could come get
his car, and Rodgers said he “could look into that.” Gamez indicated that a coworker
was in route, and Rodgers was trying to responsibly dispose of the two vehicles
within a reasonable time now that he had three people in custody rather than two.
Rodgers testified that he did not have space to put Gamez in his patrol car with the
other suspects.
The video showed that Gamez was on the phone with his wife when Rodgers
arrested him, and Gamez wanted his wife to pick up his car. Alternatively, Gamez
asked to have his coworker to wait with the vehicle until his wife arrived. Rodgers
spoke to Gamez’s wife on the phone, who was coming from Cut N Shoot, and
Rodgers was “very familiar” with the traffic congestion in that area. Although
Gamez’s wife said she would be there in twenty minutes, Rodgers knew it would be
twenty-five to thirty-five minutes, and he was unwilling to wait that long.
7 Rodgers described Gamez’s wife’s demeanor on the phone as “extremely irate,
profane, argumentative, and said she threatened to call her lawyer to come and sort
me out,” and “to bring other people to the scene.” According to Rodgers, this was
an officer safety concern. Rodgers noted he was responsible for the welfare of the
person in custody. Rodgers explained that while the wife did not make overt threats,
she was “definitely hostile,” so he was uncomfortable with her responding and
taking possession of the vehicle. Rodgers said he was unwilling to wait for her to
begin with and less willing given her hostility. The crowded parking lot likewise
concerned him. When Rodgers learned Gamez’s coworker was coming from
Houston, he determined that was an unreasonable alternative. So, Rodgers decided
to impound both vehicles.
Rodgers testified that with any tow, if deputies have keys, they access the
interior and inventory the contents, which they did with both vehicles here. Rodgers
inventoried the white van, and Burkett inventoried the RAV4 when he arrived to
assist. Rodgers explained that he finished inventorying the white van first, so to
expedite things, he offered to help Burkett by calling out items inside the RAV4 as
Burkett wrote them out. Rodgers testified that Burkett’s inventory was consistent
with a typical inventory; he identified valuables to ensure nobody claimed they were
missing items later, which mitigated agency and tow lot liability. Rodgers denied
looking for contraband and described himself as “pretty ambivalent” about the
8 vehicles as he wanted to get the three men to jail. As Rodgers approached the RAV4,
Burkett began opening a camouflage backpack. Burkett told Rodgers he retrieved
the backpack from the baby safety seat in the center of the back seat, within arm’s
reach of the driver and “in his immediate control.” Rodgers said that Burkett pulled
a set of digital scales from the backpack and a plastic baggie containing unknown
substances, at which point Rodgers angled his flashlight into the bag and observed
other items he “assessed to be contraband.” Rodgers had not yet seen the gun but
believed the backpack contained contraband, so he removed it from Gamez’s vehicle
and searched it. During the search, he located a semi-automatic firearm.
According to Rodgers, they transitioned from a vehicle inventory to a
probable cause search of the backpack upon observing the contraband items. He
testified that the inventory is done for “administrative care keeping [sic] purposes”
to identify valuables and assure all belongings are accounted for. Rodgers explained
it “transitioned to a probable cause search, which is a search for locating and
identifying evidence” once he observed the contraband items.
A copy of the MCSO Field Policy and Procedures Manual, Section 3.6 was
admitted into evidence at the suppression hearing. According to Rodgers, he could
have legally towed the van and explained that when someone is arrested, their policy
only provides for two methods of disposition. He said,
One is to release it to another party, someone who is readily available to take possession of it, typically a passenger in the car who’s got a 9 valid license. Alternatively, we can have it impounded and inventoried in order to ensure it doesn’t get burglarized or damaged or otherwise vandalized while that person is in custody.
Rodgers testified it makes no difference whether it is on the roadway or on private
property. Regarding Section 3.6(C) of the tow policy, Rodgers noted the last
sentence regarding towing from private property:
[T]he same method of the removal for the vehicle and the deputy’s responsibilities are the same as the vehicle in a public street right-of- way. It is not incumbent on a deputy to locate the business manager of the parking lot to determine whether or not a driver’s vehicle can remain on the property.
Rodgers also read towing guideline policy Section 3.6(L), which states, “Deputy
shall conduct an inventory under the following conditions: A, when towing for any
reason other than the owner’s request; B, when a custody arrest is made and towing
is [] required, regardless of the request; and C, when a vehicle is towed to an MCSO
facility.” Rodgers explained that since the owner did not consent to towing the
vehicle, under the policy he had to conduct an inventory upon towing the vehicle.
The written policy also provides, “In the case of a non-consent tow, the deputy will
complete a vehicle tow slip and conduct an inventory of the vehicle to ensure that
no preventable loss will occur concerning perishable and/or valuable items.”
Testimony of Deputy Robert Burkett
Deputy Robert Burkett testified that he works patrol for MCSO. On
November 12, 2022, he received a radio call for backup to help Specialist Rodgers,
10 who advised that he had two suspects in custody and needed Burkett to transport a
third suspect. The scene was at a Texaco parking lot at the intersection of Pruitt Road
and Interstate 45, and Rodgers’s vehicle was behind a white van. Burkett described
the gas station and intersection both as “very busy.” Burkett explained that truckers
park at that gas station to sleep, and there is “a lot of activity 24/7 there in the parking
lot.”
Burkett said he arrived on the scene at 2:15 p.m., he met with Rodgers, and
Gamez was placed in Burkett’s backseat. At that point, Rodgers asked Burkett to do
the tow slip for Gamez’s red RAV4 vehicle. Burkett stated that he was not the one
who decided to arrest Gamez, but he helped by handling the tow slip. A copy of the
completed tow slip was admitted into evidence. According to Burkett, Rodgers
towed the vehicle, and Burkett helped clear the scene as fast as possible. Burkett
explained that when he arrived, there were already three suspects in custody. In those
situations, they did not want to extend the time of the stop and wanted to get
everyone off the scene as quickly as possible.
Burkett testified he was familiar with his agency’s towing and inventory
policy, which allows them to tow a vehicle if it is a traffic hazard or if it is incident
to arrest. Burkett said he followed their process for completing the tow slip and
explained they did so to document the items. He noted that it protected the agency
from liability and protected the party’s items. Burkett denied he looked for anything
11 specific, “only things of value” and listed items they usually included on an
inventory, like guns, money, jewelry or tools. Burkett testified he found a
camouflage backpack in the rear passenger seat inside a car seat. To his knowledge,
Gamez was the only person in the vehicle that day.
Burkett testified that the RAV4 was parked legally in a parking space, and the
Texaco gas station was private property. Burkett estimated he was on the scene for
about an hour. Burkett said that “if someone’s in custody and the vehicle is still on
location, we’re not going to allow it to stay on location if there’s no one to drive it.”
Closing Arguments at the Suppression Hearing
At the end of the suppression hearing, the State argued: (1) first, there was
probable cause to arrest Gamez for DWLI based on him driving to the location and
admitting he drove with an invalid license with a prior conviction; and (2) the
impoundment was legal because a lawful arrest is a legal means to impound a vehicle.
The State explained that the only thing the defense can argue was that the inventory
was done improperly, and the things you consider are whether (1) they had an agency
policy, and (2) the policy was followed. Here, the State noted the policy admitted
into evidence and the completed inventory slip. In sum, the State argued there was a
legal arrest, a proper towing, and a proper inventory.
Gamez responded, “The issue here is not whether or not the inventory search
was conducted properly, it’s whether or not the inventory search should have been
12 allowed at all. The impoundment here is the issue.” The defense complained that
Gamez was not removed from his vehicle, it was broad daylight, he was legally
parked on private property and not a danger, and police did not investigate other
alternatives to impoundment.
The State also asserted that Rodgers investigated the reasonableness of
alternative methods but contended, “When a driver is arrested, the law does not
require police officers to independently investigate possible impoundment
alternatives, absent objectively demonstrable evidence that such alternatives exist.”
The State claimed there was not a reasonable alternative: the wife was irate, profane,
and threatened to bring other people to the scene leading to a safety concern for the
officer, patrons, and defendants. It noted the other alternative was in Houston forty-
five minutes away, but a wrecker could be there in ten or fifteen minutes.
Trial Court’s Ruling
Based on the testimony and State’s Exhibits A, B, and C, the trial court denied
the Motion to Suppress. The trial court found: (1) there was a lawful arrest; (2)
considering the policy, the same method of removing the vehicle and deputy’s
responsibilities are the same on public and private property; and (3) this situation
evolved into a “traffic stop situation” since—although Gamez voluntarily left his
vehicle—he was denied re-entry, so the impoundment was legal based on that. The
trial court noted that the deputy looked at alternatives, which he determined to be
13 unreasonable as the wife escalated into a possible safety risk, and the supervisor’s
timeframe coming from Houston was completely unreasonable. Finally, the trial
court found that deputies followed the policies contained in State’s Exhibit B.
TRIAL TESTIMONY AND CONTINUED OBJECTIONS
During trial, the parties questioned the deputies again about the arrest,
impoundment, and inventory. Both deputies provided testimony consistent with their
testimony at the suppression hearing. Rodgers also testified during trial that he was
not required to investigate alternatives to impoundment; whether to do so was within
the deputy’s discretion. He explained that they were responsible for the suspects’
safety once in custody, and the deputies’ priority was transporting them to jail
without extending the stop. Rodgers said they were in a high-traffic parking lot in
an area where they have problems with burglaries of motor vehicles. Among other
evidence, the bodycam from both deputies was admitted at trial.
Gamez also repeatedly objected at trial that the initial inventory was “illegal”
and cited 38.23. See generally Tex. Code Crim. Proc. Ann. art. 38.23. Gamez did
not complain or specify at trial that the inventory was illegal because MCSO did not
have inventory policy regarding opening closed containers nor that if there was such
a policy, the deputies failed to adhere to it.
14 STANDARD OF REVIEW
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard. See Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App.
2016); Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We give
almost total deference to the trial court’s determination of historical facts, especially
when the trial court’s fact findings turn on the witnesses’ credibility and
demeanor. See Brodnex, 485 S.W.3d at 436 (quoting Crain v. State, 315 S.W.3d 43,
48 (Tex. Crim. App. 2010)). We afford the same deference to the trial court’s rulings
on applying the law to questions of fact and to mixed questions of law and fact, if
resolution of those questions depends on an evaluation of the credibility and
demeanor of witnesses. See Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim.
App. 2013) (citation omitted). We review de novo mixed questions of law and fact
that do not depend on credibility and demeanor. Id. (citation omitted).
At a suppression hearing, the trial court is the exclusive trier of fact and judge
of the witnesses’ credibility and weight to give their testimony. St. George v. State,
237 S.W.3d 720, 725 (Tex. Crim. App. 2007). At the hearing, a trial court may
choose to believe or to disbelieve all or part of a witness’s testimony. See Baird v.
State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). When the trial court does not
make express findings of fact, we must view the evidence in the light most favorable
to the trial court’s ruling, assuming it made any implicit findings of fact that are
15 supported by the record. See Crain, 315 S.W.3d at 48. Neither party moved for
written findings of fact and conclusions of law, and none were filed, yet the record
makes apparent that the trial court intended to express its findings and conclusions
based on its oral pronouncements. When reviewing a motion to suppress, oral
findings of fact can be considered as findings of fact on the record and are given due
deference. See, e.g., State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006)
(stating that the trial court’s findings and conclusions from the suppression hearing
must be recorded in some way, whether written and filed by the trial court or stated
on the record at the hearing); Flores v. State, 177 S.W.3d 8, 13–14 (Tex. App.—
Houston [1st Dist.] 2005, pet. ref’d) (reviewing trial court’s oral findings of fact on
a motion to suppress).
Appellate review is generally limited to evidence introduced at the
suppression hearing. Igboji v. State, 666 S.W.3d 607, 612 (Tex. Crim. App. 2023);
Turrubiate v. State, 399 S.W.3d 147, 150–51 (Tex. Crim. App. 2013). Yet, our
review “may include evidence adduced at trial when, as here, ‘the suppression issue
has been consensually relitigated by the parties during trial on the merits.’”
Turrubiate, 399 S.W.3d at 151 (quoting Rachal v. State, 917 S.W.2d 799, 809 (Tex.
Crim. App. 1996)).
16 LAW: IMPOUNDMENT AND INVENTORY
The United States Constitution and the Texas Constitution protect against
unreasonable searches and seizures. See U.S. CONST. amend. IV; Tex. Const. art. I,
§ 9. A warrantless search is presumptively unreasonable “subject to a ‘few defined
and well-established exceptions.’” McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim.
App. 2003) (quoting Minnesota v. Dickerson, 508 U.S. 366, 372 (1993)). An
inventory search is an exception to the Fourth Amendment’s warrant
requirement. See Colorado v. Bertine, 479 U.S. 367, 371 (1987) (stating that an
inventory search may be reasonable even though conducted without a warrant when
the search is performed based on police caretaking procedures); Opperman, 428 U.S.
at 366–72 (explaining that following impoundment inventories under standard
police procedures are reasonable). “However, before any need arises to inventory
the contents of an automobile there must be a lawful impoundment.” Benavides, 600
S.W.2d at 810.
“For an impoundment of a vehicle to be lawful, it must be reasonable under
the Fourth Amendment.” Roberts v. State, 444 S.W.3d 770, 774 (Tex. App.—Fort
Worth 2014, pet. ref’d) (citing Benavides, 600 S.W.2d at 811). An impoundment is
lawful if a driver is removed from his vehicle, arrested, and no other alternatives are
available other than impoundment to ensure the vehicle’s protection. See
Benavides, 600 S.W.2d at 811. The State bears the burden of proving that an
17 impoundment is lawful. Delgado v. State, 718 S.W.2d 718, 721 (Tex. Crim. App.
1986). Factors we consider in determining an impoundment’s reasonableness under
the Fourth Amendment when it follows custodial arrest include whether:
(1) someone was available at the scene of the arrest to whom police could have given possession of the vehicle; (2) the vehicle was impeding the flow of traffic or was a danger to public safety; (3) the vehicle was locked; (4) the detention of the arrestee would likely be of such duration as to require police to take protective measures; (5) there was some reasonable connection between the arrest and the vehicle; and (6) the vehicle was used in the commission of another crime.
Josey v. State, 981 S.W.2d 831, 842 (Tex. App.—Houston [14th Dist.] 1998, pet.
ref’d) (citing Gords v. State, 824 S.W.2d 785, 787–88 (Tex. App.—Dallas 1992, pet.
ref’d)); see also Garza v. State, 137 S.W.3d 878, 883 (Tex. App.—Houston [1st
Dist.] 2004, pet. ref’d) (stating same). “Texas courts have generally found
impoundment to be reasonable when the driver was alone when arrested or when
passengers could not show they were licensed drivers.” Yaws v. State, 38 S.W.3d
720, 724 (Tex. App.—Texarkana 2001, pet. ref’d). Police are not required to contact
a friend or relative of the accused to take possession of the vehicle. See id.; see also
Moskey v. State, 333 S.W.3d 696, 700 (Tex. App.—Houston [1st Dist.] 2010, no
pet.).
An inventory search protects (1) the owner’s property while in police custody,
(2) the police against claims or disputes over lost, stolen, or vandalized property, and
(3) the police from potential danger. See Bertine, 479 U.S. at 372; Opperman, 428
18 U.S. at 369 (citations omitted). Issues of probable cause do not apply to an inventory
search because an inventory is not to investigate criminal activity, rather it fulfills
an administrative purpose. See Bertine, 479 U.S. at 371 (quoting Opperman, 428
U.S. at 370 n.5) (explaining the inventory-search exception focuses on “the
reasonableness of routine administrative caretaking functions[ ]”); see also State v.
Cruz, 461 S.W.3d 531, 542 (Tex. Crim. App. 2015) (noting that the inventory search
exception is based on administrative concerns) (citations omitted). To satisfy the
exception, an inventory search must be conducted pursuant to a reasonable
standardized police procedure. See Moskey, 333 S.W.3d at 700 (citing Bertine, 479
U.S. at 371) (other citations omitted). “The inventory search must be designed to
produce an inventory of the vehicle’s contents and must not be a ‘ruse for a general
rummaging in order to discover incriminating evidence.’” Id. (quoting Florida v.
Wells, 495 U.S. 1, 4 (1990)) (other citation omitted).
The State bears the burden of establishing that the police conducted a lawful
inventory search. Id. (citing Evers v. State, 576 S.W.2d 46, 50 & n.5) (Tex. Crim.
App. 1978)) (other citations omitted). The State satisfies its burden by demonstrating
that (1) an inventory policy exists, and (2) officers followed that policy. Id.; see also
Moberg v. State, 810 S.W.2d 190, 195 (Tex. Crim. App. 1991). Opening closed
containers while conducting an inventory search is lawful only when there is
evidence of a policy or established procedure allowing for it. State v. Molder, 337
19 S.W.3d 403, 409 (Tex. App.—Fort Worth 2011, no pet.) (citing Wells, 495 U.S. at
4–5; Rothenberg v. State, 176 S.W.3d 53, 57 (Tex. App.—Houston [1st Dist.] 2004,
pet. ref’d)) (other citation omitted).
ANALYSIS
In a single issue, Gamez complains the trial court reversibly erred when it
denied his Motion to Suppress. In support of this issue, Gamez raises two arguments.
First, he challenges the impoundment. Second, he challenges the inventory on the
basis that the State did not establish a policy for opening closed containers. We take
each of these in turn.
Impoundment
Gamez contends that the impoundment of his vehicle was unlawful because
(1) a traffic stop did not occur, (2) he was not removed from his vehicle, and (3)
other alternatives existed to ensure the vehicle’s protection. Relying on Benavides,
he primarily contends that there was no traffic stop, he was not removed from the
vehicle, and other alternatives existed to protect his vehicle, including his wife and
coworker. He notes that his vehicle was parked legally on private property.
Benavides involved a case where the appellant’s wife suffered a fatal gunshot
wound, and he sustained a gunshot wound but lived; they were found in their garage.
See Benavides, 600 S.W.2d at 810. The appellant was taken to a hospital. See id. By
asking a family member, police determined what kind of car appellant drove, then
20 located a car matching that description two blocks away. See id. The car was
impounded and inventoried, and evidence from the inventory was used at the
appellant’s trial. See id. The State’s sole basis for impounding the car was
“safekeeping.” Id. at 811. The State asserted it was standard policy to impound a
vehicle when the accused had been arrested, and they claimed they were “reasonably
sure” it belonged to the appellant. See id.
The Court of Criminal Appeals rejected the impoundment in Benavides
purportedly done for “safekeeping” reasons. See id. at 812. The Court said, “The
mere arrest of a defendant cannot be construed to authorize the seizure of his
automobile when the arrest took place two or more blocks away from the
automobile.” Id. The Court noted that there was no evidence the car was impeding
traffic flow or was a danger to public safety. Id. “It was legally parked in a residential
neighborhood, and it was locked.” Id.
Gamez seemingly asserts that the circumstances listed in Benavides where
impoundments have been determined to be lawful are exclusive, yet the Court of
Criminal Appeals explained the cited cases “do not include every basis that an
impoundment has been upheld[.]” Id. at 811. A recognized reason for lawfully
impounding a vehicle can be the “community caretaking” function. Id. at 810
(quoting Opperman, 428 U.S. at 478).
21 The circumstances of the impoundment here are distinguishable in several key
respects from those in Benavides, and the evidence of these circumstances supports
the impoundment’s reasonableness when we consider the relevant factors. See Josey,
981 S.W.2d at 842 (listing factors courts consider for impoundment’s
reasonableness); see also Garza, 137 S.W.3d at 883 (same). Although Gamez
voluntarily exited his vehicle, Rodgers observed him do so, and the vehicle was in
the immediate area. See Garza, 137 S.W.3d at 883; Josey, 981 S.W.2d at 842. Gamez
committed the offense of DWLI by driving the vehicle to the scene. See Garza, 137
S.W.3d at 883; Josey, 981 S.W.2d at 842. While Gamez claims he was legally parked
on private property, testimony established it was a high-traffic parking lot in an area
where vehicle burglaries were a problem. See Garza, 137 S.W.3d at 883; Josey, 981
S.W.2d at 842. The evidence establishes that nobody was on the scene of the arrest
who could take possession of the vehicle. See Garza, 137 S.W.3d at 883; Josey, 981
S.W.2d at 842. There was a reasonable connection between the initial arrest for
DWLI with a prior and the vehicle, which was the basis for the original decision to
impound the vehicle. See Garza, 137 S.W.3d at 883; Josey, 981 S.W.2d at 842.
We reject Gamez’s contention that deputies were required to independently
explore or use alternatives to impounding his vehicle. See Moskey, 333 S.W.3d at
700 (stating the State need not prove impoundment and subsequent inventory was
the least intrusive means of securing and safeguarding the vehicle, nor must it prove
22 that the officers investigated possible alternatives to impoundment); Yaws, 38
S.W.3d at 724 (explaining that courts have not required police to contact an
accused’s relative or friend to come to the scene to take possession of the vehicle).
Evidence supported the trial court’s finding that MCSO had a towing policy and that
deputies followed this policy. See Moberg, 810 S.W.2d at 195. The policy allowed
for only two dispositions of a vehicle when someone was arrested, whether on public
or private property. They could release it to a responsible private party readily
available, or they could impound and inventory the vehicle. The evidence
established that deputies had discretion whether to explore alternatives before
impounding the vehicle after an arrest. Although not required to do so, the evidence
showed that Rodgers investigated Gamez’s wife and coworker as possible
alternatives and determined they were unreasonable options. Rodgers had three
people in custody in a high-traffic area, and their policy emphasized expeditiously
transporting those individuals safely to jail over extending a traffic stop. Rodgers
explained that the wife was hostile, belligerent, and threatened to bring others to the
scene. Additionally, both the wife and coworker would take too long to arrive at the
scene.
Gamez notes that he was not removed from the vehicle and approached
Rodgers, but Texas courts have upheld impoundments when defendants voluntarily
exited their vehicle before arrest. See, e.g., Delgado, 718 S.W.2d at 720 (upholding
23 impoundment where defendant was outside his vehicle in a motel parking lot when
officers approached him and arrested him after observing narcotic paraphernalia);
Mayberry v. State, 830 S.W.2d 176, 180 (Tex. App.—Dallas 1992, pet. ref’d)
(holding impoundment lawful where officers arrested defendant after he parked in
private driveway and exited the vehicle); Starlling v. State, 743 S.W.2d 767, 772
(Tex. App.—Fort Worth 1988, pet. ref’d) (concluding impoundment and inventory
were lawful when defendant was standing next to his car parked in a restaurant
parking lot and arrested on suspicion of burglary and impoundment was necessary
to secure the vehicle); see also Mitchell v. State, No. 09-05-289-CR, 2006 WL
2075204, at *1 (Tex. App.—Beaumont July 26, 2006, no pet.) (mem. op., not
designated for publication) (concluding impoundment was lawful where defendant
parked in barbershop parking lot and as he exited a vehicle, officers approached and
arrested him on an outstanding warrant).
Viewing the evidence in the light most favorable to the trial court’s rulings,
we hold the evidence supports the trial court’s findings, and the trial court correctly
concluded the impoundment was lawful. See Delgado, 718 S.W.2d at 721,
Benavides, 600 S.W.2d at 810; Garza, 137 S.W.3d at 883; Josey, 981 S.W.2d at 842;
see also Crain, 315 S.W.3d at 48 (stating standard of review). We overrule Gamez’s
issue as it relates to the impoundment.
24 Inventory
On appeal, Gamez asserts that even if the impoundment was legal, the
inventory was still unlawful because there was no standard procedure regarding the
inventory of closed containers found in a vehicle based on the evidence admitted
during the suppression hearing. The State responds that Gamez waived his argument
that the inventory of his vehicle was conducted improperly. We agree with the State
that Gamez waived this argument.
To preserve a complaint for our review, a party must make a timely objection
or motion in the trial court stating the grounds for the ruling he sought with sufficient
specificity to make the trial court aware of the complaint, unless the specific grounds
were clear from the context. See Tex. R. App. P. 33.1; Pena v. State, 285 S.W.3d
459, 463 (Tex. Crim. App. 2009). To avoid forfeiting his complaint, the objecting
party must “‘let the trial judge know what he wants, why he thinks he is entitled to
it, and to do so clearly enough for the judge to understand him at a time when the
judge is in the proper position to do something about it.’” Pena, 285 S.W.3d at
463 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992))
(emphasis added). The complaint on appeal must comport with the complaint made
at trial. Id. A general or imprecise objection can be sufficient to preserve error only
when “the legal basis for the objection is obvious to the court and to opposing
counsel.” Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006).
25 At the hearing on the Motion to Suppress, Gamez expressly represented to the
trial court that he was not complaining about how the inventory was conducted.
Rather, his complaint was that deputies did not lawfully impound his vehicle, thus
the subsequent inventory was illegal. During trial, Gamez repeatedly said he wished
to “renew” his objection to the inventory as being illegal and cited 38.23. He did not
complain in the trial court that the inventory was unlawful because there was no
standard procedure regarding closed containers found in a vehicle based on the
deputies’ testimony and the policy admitted during the suppression hearing. See Tex.
R. App. 33.1. Gamez failed to alert the trial court that he was entitled to the exclusion
of evidence because the agency did not have a standard procedure, which he
contends resulted in an illegal inventory. Nothing in the record shows that the trial
court or the State recognized that Gamez’s reason for claiming the inventory was
illegal was the lack of a standard procedure about opening closed containers. See
Buchanan, 207 S.W.3d at 775. Since his complaint in the trial court does not comport
with his complaint on appeal, we hold that he has failed to preserve this complaint
about the inventory for our review. See Pena, 285 S.W.3d at 463; Lankston, 827
S.W.2d at 909.
26 CONCLUSION
Having overruled Gamez’s sole issue regarding the impoundment and having
concluded he failed to preserve his complaint about the inventory, we affirm the trial
court’s judgments.
AFFIRMED.
W. SCOTT GOLEMON Chief Justice
Submitted on January 26, 2026 Opinion Delivered March 18, 2026 Do Not Publish
Before Golemon, C.J., Wright and Chambers, JJ.