Brian Todd West v. the State of Texas

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00154-CR

BRIAN TODD WEST, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 242nd District Court Castro County, Texas Trial Court No. B4311-2307, Honorable Kregg Hukill, Presiding

November 13, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Pursuant to a plea bargain, Appellant, Brian Todd West, was convicted in a bench

trial of possession with intent to deliver methamphetamine in an amount of four grams or

more but less than 200.1 Punishment was assessed at confinement for twelve years and

a $2,000 fine. By a sole issue, Appellant contends the trial court abused its discretion in

1 TEX. HEALTH & SAFETY CODE ANN. § 481.112(d). denying his motion to suppress because the search of his vehicle was conducted without

probable cause. We affirm.

BACKGROUND

The sole witness at the suppression hearing was Castro County Sheriff’s Deputy

Lamberto Martinez. He testified he was traveling on a highway behind a white Toyota

pickup. He made a traffic stop based on the driver’s failure to signal within 100 feet of

initiating a turn on three different occasions. He acknowledged his dash camera was not

operational at the time.

Appellant exited the pickup and the deputy asked for proof of insurance. He

reported the pickup did not belong to him and the deputy suggested he look in the glove

compartment for proof of insurance. When Appellant opened the door to the pickup, the

officer smelled an odor of marihuana. After backup deputies arrived, a female in the

passenger’s seat was removed from the pickup and Appellant was asked to wait at the

rear of the pickup. A warrantless probable cause search revealed a gold purse located

on the center console which contained a small cigarette pouch with a plastic baggie

containing a substance which tested positive for methamphetamine.

Both Appellant and the female passenger denied ownership of the purse. They

were arrested for possession of a controlled substance and transported to jail. During a

search of Appellant at the jail, more contraband was discovered on his person.

Following Appellant’s bench trial, the trial court entered Findings of Fact and

Conclusions of Law. Among those findings, the trial court concluded Deputy Martinez

2 had probable cause to conduct the traffic stop and probable cause to search the pickup

on detecting the odor of marihuana.

APPLICABLE LAW

The Fourth Amendment prohibits unreasonable searches and seizures by

government officials. U.S. CONST. amend IV.; Wiede v. State, 214 S.W.3d 17, 24 (Tex.

Crim. App. 2007). Pursuant to the Fourth Amendment, a warrantless search is per se

unreasonable unless it falls within a warrant exception. Marcopoulos v. State, 538

S.W.3d 596, 599 (Tex. Crim. App. 2017) (citing Arizona v. Gant, 556 U.S. 332, 338, 129

S. Ct. 1710, 173 L. Ed. 2d 485 (2009)). An exception to the warrant requirement for a

search is the automobile exception. Marcopoulos, 538 S.W.3d at 59. It allows for the

warrantless search of an automobile “if it is readily mobile and there is probable cause to

believe that it contains contraband.” Pugh v. State, 624 S.W.3d 565, 570–71 (Tex. Crim.

App. 2021) (citing Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009)).

Probable cause exists where the facts and circumstances known to law enforcement

officers are sufficient in themselves to warrant a person of reasonable caution in the belief

that an offense has been or is being committed. Id. at 599–600. For probable cause to

exist, there must be a fair probability of finding inculpatory evidence at the location being

searched. Id. at 600.

STANDARD OF REVIEW

We review a trial court’s ruling on a motion to suppress for abuse of discretion

under a bifurcated standard of review. State v. Torres, 666 S.W.3d 735, 740 (Tex. Crim.

App. 2023). We afford almost total deference to the trial court’s determinations based on

3 an assessment of credibility and demeanor. Id. We review pure questions of law, as well

as mixed questions of law and fact which do not turn on credibility and demeanor de novo.

Id. The evidence and all reasonable inferences are viewed in the light most favorable to

the trial court’s ruling, and the ruling will be upheld if it is reasonably supported by the

record and is correct under a theory of law applicable to the case. State v. Espinoza, 666

S.W.3d 659, 667 (Tex. Crim. App. 2023).

ANALYSIS

Appellant acknowledges that an odor of marihuana emanating from a stopped

vehicle may provide probable cause to believe the occupant, who is in a small, enclosed

area, has been or is committing the offense of possession of marihuana. See Parker v.

State, 206 S.W.3d 593, 597 n.11 (Tex. Crim. App. 2006). However, he candidly concedes

he is arguing for a change in the law due to the legality of hemp and legalization of

marihuana use in other jurisdictions outside of Texas. He contends odor alone, without

more, should not give rise to a belief that a crime has been committed. He concludes a

“totality of the circumstances approach to a probable cause determination which fails to

acknowledge this reality is flawed.”

As the State points out, this Court recently addressed and rejected the arguments

presented by Appellant in Thacker v. State, No. 07-23-00368-CR, 2024 Tex. App. LEXIS

4917, at *4–7 (Tex. App.—Amarillo July 12, 2024, no pet.) (mem. op., not designated for

publication). In agreeing with opinions from several of our sister courts holding that the

odor alone of marihuana is sufficient probable cause for an officer to search a vehicle, we

4 concluded the odor of cannabis sativa remains the odor of marihuana, the possession of

which remains a criminal offense. Id.

Here, in its findings, the trial court observed that Deputy Martinez “smelled the odor

of marijuana from the vehicle” when Appellant opened the driver’s side door. The odor

alone was sufficient for the deputy to conduct a search of the pickup based on probable

cause to believe Appellant had been or was about to commit possession of marihuana.

The trial court correctly concluded that on detecting the odor of marihuana, the deputy

had probable cause to conduct a warrantless search of the pickup.

It is the duty of this Court to administer the law as it is written and not make the

law. In re G.A.C., 499 S.W.3d 138, 142 (Tex. App.—Amarillo 2016, pet. denied). To hold

otherwise would amount to legislating from the bench which we cannot do. Turner v.

Cross, 83 Tex. 218, 18 S.W. 578, 579 (1892). We find the trial court did not abuse its

discretion in denying Appellant’s motion to suppress. Appellant’s sole issue is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Alex Yarbrough Justice

Do not publish.