Terry Wayne Souther v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 26, 2022
• Docket: 05-21-00809-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed July 26, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00809-CR

TERRY WAYNE SOUTHER, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 071771

MEMORANDUM OPINION Before Justices Myers, Carlyle, and Goldstein Opinion by Justice Goldstein Terry Wayne Souther appeals the trial court’s order denying his motion to

suppress. In a single issue, Souther argues the trial court abused its discretion in

denying his motion to suppress in violation of the Fourth Amendment’s prohibition

against warrantless searches and seizures. We affirm the trial court’s judgment.

In February 2020, appellant was indicted on charges of possession of

methamphetamine in an amount of 200 grams or more but less than 400 grams and

possession of heroin in an amount of 4 grams or more but less than 200 grams. In

October 2020, Souther filed a pretrial motion to suppress all evidence obtained from

a warrantless search of his vehicle. The motion to suppress evidentiary hearing was held in November 2020.

Texas Highway Patrol trooper Greg Whitmire testified that, on November 21, 2019,

he was advised that Terry Souther had a felony arrest warrant, a parole warrant for

a narcotics charge, by a detective with the Sherman Police Department, along with

a description of Souther’s vehicle. Whitmire got behind Souther’s vehicle and

observed Souther cross over the center line while making a left turn. Whitmire

initiated a traffic stop and approached the vehicle on the passenger’s side. Souther

was alone in the vehicle. Whitmire asked for Souther’s driver’s license, but Souther

said he had no identification with him. Whitmire had Souther get out of the vehicle,

and he asked Souther his name. Souther was “shaking like a leaf.” Souther

identified himself as “Jeffrey Souther,” and Whitmire was able to pull up an

identification photograph under that name. However, the photograph did not match.

Whitmire went back to Souther, told him “Jeffrey Souther” was not his name,

and asked again for Souther’s name. This time, Souther identified himself as “Benny

Souther.” At that point, Whitmire placed Souther under arrest for failure to identify.

Whitmire ran the name “Benny Souther” and determined it was also not a match.

Whitmire asked again for Souther’s name, and Souther identified himself as “Terry

Souther,” said he had a parole warrant, and advised Whitmire that he was working

with a Grayson County narcotics agent. Whitmire testified that, based upon his

experience and training, when somebody is shaking, lying about who they are, and

–2– “working with someone that’s involved in drugs,” he believes there might be drugs

in the vehicle.

Once Whitmire identified Souther as “Terry Souther,” he confirmed that

Souther had a parole warrant. Whitmire placed Souther in the front passenger seat

of his patrol unit and informed him that he was going to do an inventory search of

Souther’s vehicle. Whitmire testified it is department policy to conduct an inventory

search of a vehicle that he was going to have towed in order to document the

vehicle’s contents. Inside Souther’s car, Whitmire found black tar heroin in the

driver’s seat and methamphetamine, heroin, and Xanax pills in a sock under a cup

holder. Whitmire found a total of 13.6 grams of heroin and 218.8 grams of

methamphetamine in Souther’s vehicle.

Souther’s counsel confirmed with Whitmire that, at about nineteen minutes

into a recording of the stop, Souther “specifically asked if the girlfriend at the

laundromat can come take possession of the vehicle.” Whitmire testified he refused

Souther’s request because, for officer safety, “we don’t want to bring anybody else

into that scene right there.” Whitmire also testified that, even if the girlfriend had

come to the scene, he still would have had to inventory the vehicle, and he did not

believe the girlfriend would have been the registered owner of the vehicle because

Souther did not “have a registration in his name at that point.” The trial court denied

Souther’s motion to suppress. Following a jury trial, a jury convicted Souther of

–3– possession of methamphetamine and heroin as charged in the indictment, and this

appeal followed.

In his sole issue, Souther argues the trial court abused its discretion in denying

his motion to suppress.

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

standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007).

We give almost total deference to the trial court's findings of historical fact that are

supported by the record and its application of the law to facts if the resolution of

those questions turns on an evaluation of credibility and demeanor. Id. We review

de novo the trial court's application of the law to the facts when the issue does not

turn on credibility and demeanor. Id. The trial court is the exclusive trier of fact and

judge of the credibility of the witnesses and the weight to be given to their testimony

at the suppression hearing. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.

2000). In reviewing a trial court’s ruling on a motion to suppress, we must view the

evidence in the light most favorable to the ruling. State v. Kelly, 204 S.W.3d 808,

818 (Tex. Crim. App. 2006).

The Fourth Amendment to the United States Constitution protects against

unreasonable searches and seizures. U.S. CONST. amend. IV. A warrantless search

of property is presumptively unreasonable subject to a few specifically defined and

well-established exceptions. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.

2003). An inventory search of an automobile pursuant to a lawful impoundment is

–4– such an exception and does not implicate the policies underlying the warrant

requirement. See Colorado v. Bertine, 479 U.S. 367, 371 (1987); Jackson v. State,

468 S.W.3d 189, 194 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

Before an inventory search is lawful, there must be a lawful impoundment.

Jackson, 468 S.W.3d at 194. Among other situations, an automobile may be

impounded if the driver is removed from the automobile and placed under custodial

arrest and no other alternatives are available to ensure the protection of the vehicle.

Id. In Jackson, a trooper stopped appellant and arrested him for outstanding warrants

and conducted an inventory search of appellant’s vehicle even though the trooper

had contacted appellant’s mother and given her fifteen minutes to arrive at the scene

to pick up the vehicle. Id. at 191–97. The court reasoned that “[I]t was not

reasonable to expect the Trooper to wait 15 minutes for the Defendant's mother to

arrive, then take an additional 15–30 minutes to inventory the vehicle once he

realized that she was not coming.” Id. at 196.

Here, Whitmire stopped Souther for a traffic violation. After Souther failed

to identify himself, Whitmire placed him under arrest, and upon confirming the

parole warrant, conducted an inventory search of his vehicle incident to arrest in

accordance with department policy. Souther had no passenger, no one else was

available to take custody of his vehicle, and Whitmire was not required to wait to

contact Souther’s girlfriend or determine if someone else might be available to take

possession of the vehicle. See id. Under these circumstances, we conclude the trial

–5– court did not err in denying Souther’s motion to suppress. See Amador, 221 S.W.3d

at 673. We overrule Souther’s sole issue.

We affirm the trial court’s judgment.

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 210809F.U05

–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

TERRY WAYNE SOUTHER, On Appeal from the 397th Judicial Appellant District Court, Grayson County, Texas No. 05-21-00809-CR V. Trial Court Cause No. 071771. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Goldstein. Justices Myers and Carlyle participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 26, 2022

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