Dart v. State

• Decision Date: 17 October 1990
• Docket Number: No. 2-88-238-CR,2-88-238-CR
• Citation: 798 S.W.2d 379
• Parties: Gary Pat DART, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 379

798 S.W.2d 379

Gary Pat DART, Appellant, v. The STATE of Texas, State.

No. 2-88-238-CR.

Court of Appeals of Texas Fort Worth.

Oct. 17, 1990.

Rehearing Overruled Nov. 20, 1990.

Catherine Zellers and Dennis M. Morrow, Weatherford (on appeal only), for appellant.

Amy Ayers Adams, Dist. Atty., Don Schnebly and Christopher A. Curtis, Asst. Dist. Attys., for appellee.

Before JOE SPURLOCK, II, HILL and MEYERS, JJ.

OPINION

HILL, Justice.

Gary Pat Dart appeals his conviction by a jury for the offense of aggravated possession of a controlled substance, phenylacetone. The jury assessed his punishment, which was enhanced by prior convictions, at life imprisonment in the Texas Department of Corrections, now the Texas Department of Criminal Justice, Institutional Division. Dart contends in six points of error that the trial court erred by: (1) failing to suppress evidence obtained in an illegal inventory search of the trunk of his automobile; (2) admitting his written statement into evidence, because it was a result of the illegal inventory search and tainted by the same illegality, and because it was involuntary since it was obtained by promises made to Dart and because it was obtained after he had expressed a need to talk to a lawyer; and (3) overruling his motion for the appointment of a chemist to analyze the substances upon which the charge was based. He also contends that the evidence is insufficient to support his conviction due to a failure in proof as to the chain of custody.

We affirm. We hold that: (1) the search of Dart's automobile was a valid inventory search; (2) therefore, Dart's written statement was not obtained as a result of an illegal search; (3) the trial court's determination that Dart gave a written statement voluntarily, that he was not promised anything in return for giving the statement, and that he never requested an attorney, either before or during the giving of the statement is supported by the evidence; (4) the evidence is sufficient to support the conviction because no break in the chain of custody of the controlled substance was shown, there was no objection to the admission of the controlled substance based on a break in the chain of custody, and because, in the absence of some evidence of tampering, any chain of custody objection goes to the weight and not to the admissibility of the evidence; and (5) the trial court did not err by overruling Dart's request for the appointment of an independent chemist because the substance Dart sought to have analyzed was not the substance relied on by the State for conviction, and because we hold, beyond a reasonable doubt, that any error of the trial court in failing to make such an appointment did not contribute either to Dart's conviction or to the punishment assessed.

Dart contends in points of error numbers one and two that the trial court erred by failing to suppress evidence obtained in an illegal inventory search of the trunk of his automobile, in violation of the Fourth Amendment to the United States Constitution, article I, section 9 of the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure. He urges that the State failed to prove that the search was a proper inventory search.

Dart was stopped by Azle Police Officer Vernon Leonard in Azle on February 2, 1988, after Dart failed to stop for a school bus that was letting out students. He was arrested when it was discovered that he was wanted on a warrant from the City of Fort Worth. Since Dart was by himself, Officer Leonard impounded his automobile. Pursuant to Azle Police Department policy, Officer Leonard, using a key, inventoried the automobile, including the trunk. Officer Leonard found liquids that were later determined to contain phenylacetone inside an ice chest in the trunk. We hold that the evidence obtained through this inventory search was properly admitted. See Stephen v. State, 677 S.W.2d 42, 44-45 (Tex.Crim.App.1984).

Dart contends that probable cause is necessary before the arresting police officer may inventory a locked trunk, and that there was no probable cause to show that there was any contraband located in the trunk. The purpose of an inventory search is to protect the owner's property while it is in police custody, to protect the police against claims or disputes over lost or stolen property, and to protect the police from potential dangers. Kelley v. State, 677 S.W.2d 34, 37 (Tex.Crim.App.1984). These purposes are served in the inventory search of a locked trunk, whether or not there is "probable cause" to search it. We hold that the question of probable cause is not relevant in determining the propriety of an inventory search.

Dart relies on the case of Osban v. State, 726 S.W.2d 107 (Tex.Crim.App.1986) (opinion on reh'g), in support of his contention that probable cause is necessary to support an inventory search of a locked trunk. Although the Court of Appeals opinion referred to the search of Osban's vehicle as an inventory search, the Court of Criminal Appeals opinion did not. See id. and Osban v. State, 648 S.W.2d 790 (Tex.App.--Dallas 1983, reversed). In his dissent to the Court of Criminal Appeals opinion in Osban, Judge Clinton noted the court's failure to consider the search's validity as an inventory search. Osban, 726 S.W.2d at 115. He points out a problem with the search being a proper inventory search since Osban had told the officer that there was someone at the scene with whom he could leave the keys. It is perhaps for that reason that the court wrote on the issue of probable cause instead of addressing the State's contention that the search was valid as an inventory search. In effect, the court held that the search of Osban's trunk was proper because, since the search was incident to a lawful arrest, the officer had the right to search the automobile's passenger compartment, and that the discovery of controlled substances in the passenger compartment gave the officer probable cause to search the trunk. The court did not hold, as suggested by Dart, that probable cause is necessary to justify a proper...