Vicci Lenay Stewart v. The State of Texas--Appeal from 291st District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-97-027-CR

VICCI LENAY STEWART,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 291st District Court

Dallas County, Texas

Trial Court # F95-46058-PU

O P I N I O N

Appellant Stewart appeals from her conviction for possession of cocaine (less than one gram) for which she was placed on deferred adjudication probation for three years and assessed a $500 fine.

Prior to trial, Appellant filed a motion to suppress the evidence of cocaine taken from her vehicle. After a hearing, the motion to suppress was denied.

Thereafter, Appellant pled guilty pursuant to a plea-bargain agreement and the court deferred a finding of guilt and placed Appellant on deferred adjudication for three years plus a $500 fine.

Appellant appeals on one point of error, contending the trial court erred in failing to sustain her motion to suppress evidence, because the police officers' warrantless search of her truck violated the Fourth Amendment of the U.S. Constitution and Article I, Section 9, of the Texas Constitution.

At the suppression hearing, Officer Stamps testified that on April 15, 1995, he and Officer Mays were working an off-duty job at the Tom Thumb grocery store on Cedar Springs in Dallas. At about 2:30 A.M., Appellant came into the store from the parking lot where she had left her vehicle. The officers smelled a heavy odor of alcohol on her. Both officers thought she was intoxicated and arrested her for public intoxication. The officers initially decided to leave Appellant's vehicle in the parking lot but, when she became belligerent, decided to have her vehicle towed. Officer Stamps went to the vehicle to conduct an inventory search to protect the vehicle, its owner, and the City of Dallas. As Stamps entered the vehicle he saw, in plain view, an open-drink holder in the console and a clear plastic Ziploc baggie containing a white powdery substance. He removed the baggie and, from his experience, believed it to be cocaine, which it turned out to be.

Appellant testified that she pulled into the parking lot about 2:15 A.M.; that she noticed a car with the hood pulled up, and the occupant told her she needed a battery jump; that she went into the store and asked the officers if they would help; that Officers Stamps said she was drunk; that the officers performed some tests on her in deciding she was intoxicated, and arrested her. She asked the officers if they would leave her vehicle in the parking lot so that her roommate could pick it up; that she became upset and the officers told her they were having her vehicle towed. She testified she had no idea where the cocaine came from that the officers found in her truck; and that she never saw it and knew nothing about it.

Appellant contends the warrantless search of her vehicle was unreasonable because her vehicle was improperly impounded.

In a suppression hearing, the trial court is the sole and exclusive trier of fact. It judges the witnesses' credibility and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The reviewing court views the evidence in the light most favorable to the trial court's ruling. Daniels v. State, 718 S.W.2d 702, 704 (Tex. Crim. App. 1986), cert. denied, 479 U.S. 885 (1986).

In this case Appellant was arrested for public intoxication. She did not challenge the lawfulness of that arrest at trial or on appeal.

When an officer has made a lawful custodial arrest of an occupant of a vehicle, he may, as a contemporaneous incident of that arrest, impound the vehicle and search the passenger compartment of the vehicle without a warrant. State v. Garcia, 801 S.W.2d 137, 141 (Tex. App. San Antonio 1990, pet. ref'd). And where an arrest has been made of such person and the vehicle impounded, there is no requirement the officer obtain a warrant to conduct an inventory search, if the inventory is part of a bona fide "routine administrative caretaking function" of the police. Autron v. State, 887 S.W.2d 31, 34 (Tex. Crim. App. 1994).

Appellant contends she could have had her roommate pick up her car if the officers had not impounded it and, if they had not impounded it, they would not have searched it.

The police are not required to offer an arrestee a chance to make other arrangements for his vehicle, or ask whether or not he wants his vehicle protected. Garcia, at 140.

The trial court was authorized to believe the impoundment and search of Appellant's vehicle without a warrant was proper, and to deny her motion to suppress the evidence.

Appellant's point is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed March 12, 1997

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