Opinion
No. 05-05-01416-CV
Opinion Filed November 8, 2006.
On Appeal from the County Court at Law No. 5, Dallas County, Texas, Trial Court Cause No. CC-05-07149-E.
Affirm.
Before Justices MORRIS, WHITTINGTON, and RICHTER.
MEMORANDUM OPINION
This appeal involves whether the Dallas Police Department had probable cause under Dallas Traffic Ordinance 28-84 (parking for more than twenty-four hours prohibited) to tow Appellant Edward Senter's truck. In two issues, Senter challenges the legal and factual sufficiency of the evidence to support probable cause and the trial court's failure to grant his motion for judgment. We affirm the trial court's judgment.
Factual Background
On February 4, 2005, Officer Steve Short of the Dallas Police Department responded to a 3-1-1 non-emergency complaint at Senter's home. Upon his arrival, he found a one-ton Chevrolet, stake-bed pickup truck with scrap roofing material in the bed parked in front of Senter's home. Officer Short left a warning sticker on the truck stating it would be towed if not removed within twenty-four hours. He also placed a chalk mark on the back left tire. When Officer Short returned on February 8, 2005, he found the truck and the chalk mark in the same location as on February 4, 2005. He returned on several more occasions and issued citations for twenty-four hour parking violations.
Senter testified at trial that these citations were all dismissed.
On March 3, 2005, Officer Short again observed the truck parked in the same location with the same chalk mark on the back left tire. Based upon this information, he called for a wrecker to tow the vehicle to the impoundment lot. When Senter noticed Officer Short parked outside his home and talking on the cell phone, he went out and asked him what he was doing. Officer Short responded he was waiting for the tow truck. When Senter objected to the towing, Officer Short offered to disregard the tow truck if he provided proof of insurance and then drove the truck away. Senter stated the truck had a cracked block and was not driveable. His truck was then towed and impounded.
During trial, Senter testified he moved the truck on March 2, 2005.
Senter filed a written request for a hearing to determine probable cause for the removal and placement of his vehicle under Texas Code of Transportation Chapter 685. After a hearing in the justice of the peace court, judgment was entered against Senter. He timely appealed to Dallas County Court at Law No. 5, which conducted a trial de novo and rendered judgment against him. The trial court entered findings of fact and conclusions of law in accordance with the judgment. This appeal followed.
Burden of Proof
Senter claims the City of Dallas had the burden to establish Officer Short's probable cause to tow his truck because the impoundment of a person's vehicle is similar to a warrantless arrest, which requires the State to establish probable cause. Senter provides no relevant authority for this proposition. Although he cites to criminal case law involving the State's burden to establish the lawfulness of an inventory search and the impoundment of a vehicle following an arrest, the facts at issue here do not involve any alleged criminal activity requiring an inventory search; therefore, his argument is without merit.
As recognized by the City of Dallas and established by statute, the burden of proof is on the person requesting the hearing. Tex. Transp. Code Ann. § 685.009(b-1) (1) (Vernon Supp. 2006). Therefore, Senter had the burden to prove that Officer Short had no probable cause for towing his vehicle.
Standard of Review
A party challenging the legal sufficiency of the evidence supporting an adverse finding on an issue on which he had the burden of proof must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Ameristar Jet Charter, Inc. v. Cobbs, 184 S.W.3d 369, 373 (Tex.App.-Dallas 2006, no pet.). In reviewing such a challenge, we must determine whether the evidence at trial would enable reasonable and fair-minded factfinders to reach the verdict under review, crediting favorable evidence if reasonable factfinders could and disregarding contrary evidence unless reasonable factfinders could not. Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
When a party challenges the factual sufficiency of the evidence supporting an adverse finding on which it bore the burden of proof, it must demonstrate the adverse finding is against the great weight and preponderance of the evidence. Francis, 46 S.W.3d at 242; Ameristar Jet Charter, Inc., 184 S.W.3d at 373. Only if we determine, after considering all the evidence, the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust will we set aside the verdict for factual insufficiency. Francis, 46 S.W.3d at 242; Ameristar Jet Charter, Inc., 184 S.W.3d at 373.
Discussion
After a party requests a hearing under Texas Transportation Code section 685, the issue before the court is whether "probable cause existed for the removal and placement of the vehicle." Tex. Transp. Code Ann. § 685.009(c)(1) (Vernon Supp. 2006). Here, Senter requested a hearing to determine whether Officer Short had probable cause to tow his truck because of a Dallas Traffic Ordinance section 28-84 violation. Section 28-84 states "a person commits an offense if he leaves standing or parked in a public street . . . an unattended vehicle . . . for a continuous period of longer than 24 hours." Dallas, Tex., Dallas City Code § 28-84 (1997).
Probable cause exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found. Small v. State, 977 S.W.2d 771, 774 (Tex.App.-Fort Worth 1998, no pet.). It is a flexible, common sense standard requiring only a probability of suspect activity rather than an actual showing of such activity. Id.; Davis v. State, 905 S.W.2d 655, 662 (Tex.App.-Texarkana 1995, pet. ref'd). Under the "totality of the circumstances" approach, law enforcement officers are permitted to draw logical inferences and make intelligent deductions from the totality of the circumstances. Id.; see also Jackson v. State, 745 S.W.2d 4, 10 (Tex.Crim.App. 1988).
Here, Senter challenges the third and fourth elements of section 28-84. He specifically challenges the legal and factual sufficiency of the evidence as to whether his truck was "unattended" and the factual sufficiency of the evidence as to whether it was for a continuous twenty-four hour period. First, "unattended vehicle" is not defined within the ordinance; however, section 28-2(b) provides that the ordinary and commonly accepted meanings as set forth in Webster's New International Dictionary Unabridged and other dictionaries of recognized standing apply. Dallas, Tex., Dallas City Code § 28-2 (1997). Webster's Third New International Dictionary Unabridged defines "unattended" as "not attended; lacking a guard, escort, caretaker, or other watcher; lacking people in attendance; unaccompanied, not cared for, untended." Webster's Third New Int'l Dictionary Unabridged 2482 (1981).
Senter argues that because he went out to the truck before the tow truck arrived, his truck was not "unattended"; therefore, Officer Short did not have probable cause to tow it. This argument overlooks the fact that Officer Short had probable cause, based on the totality of the circumstances, that a section 28-84 violation had occurred before Senter ever came outside to "attend" to the vehicle. Senter's presence did not negate the logical inferences Officer Short had already made regarding the situation. Specifically, Officer Short noticed that the truck remained parked in the same location as when he first issued a citation in February. Further, the chalk mark on the back tire was in the same location, indicating that the truck had not been moved. At the time Officer Short made these observations, the truck was unaccompanied and not attended. Therefore, at that point the violation was complete, and he had probable cause to call the towing company, despite Senter's later presence on the scene. We conclude, viewing the evidence under the appropriate standard, that Senter failed to establish as a matter of law that is truck was not unattended. We further conclude the court's finding is not so against the great weight and preponderance of the evidence as to be unjust.
Senter argues that because the truck was parked in front of his home, it could not be "unattended." He offers no authority for this proposition, and the plain language of the ordinance does not contemplate an exception for vehicles parked in front of one's own residence.
Senter also argues that the evidence is factually insufficient to support a finding that his vehicle was parked for more than twenty-four continuous hours. Officer Short testified "in my opinion, as to the mark on the tire, that the vehicle has not been moved in well over 24 hours, several days." The only evidence Senter provided to prove he had moved his truck was his own testimony that he moved it the previous day. The evidence, however, showed that Officer Short offered to cancel the tow truck if Senter provided insurance and moved the truck. Senter then admitted that the truck had a cracked block and was not driveable. Because this was a bench trial, the judge determines the weight and credibility of the witnesses and evidence and may believe or disbelieve any part of it. See Griffin Indus., Inc. v. Hon. Thirteenth Court of Appeals, 934 S.W.2d 349, 355 (Tex. 1996). Therefore, the court was free to disbelieve Senter's testimony that he moved the truck the day before and believe that it was not capable of being moved based on his later testimony. Therefore, the court's finding is not against the great weight and preponderance of the evidence.
Conclusion
Because Senter failed to establish that Officer Short lacked probable cause to tow his vehicle, we overrule his legal and factual sufficiency challenges. Because his second issue challenging the trial court's denial of his motion for judgment is likewise a challenge to the sufficiency of the evidence, we overrule it for the reasons stated above. See Roberts Express, Inc. v. Expert Transp., Inc., 842 S.W.2d 766, 769 (Tex.App.-Dallas 1992, no writ). Having overruled all of Senter's issues, we affirm the trial court's judgment.