NUMBER 13-12-00214-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSE ARMANDO GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court of Live Oak County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria Memorandum Opinion by Justice Rodriguez Appellant, Jose Armando Garcia, challenges his conviction for possession of a
controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010).
By one issue, appellant argues that the trial court abused its discretion in denying his
motion to suppress. We affirm. I. Background
Appellant was indicted for possession of a controlled substance in connection with
the discovery by a Texas Department of Public Safety (DPS) officer of cocaine on
appellant’s person during a traffic stop. See id. Appellant filed a motion to suppress,
alleging that the incriminating evidence was obtained without probable cause or
reasonable suspicion particularized to appellant.
At the hearing on the motion to suppress, DPS Officer C.J. Villarreal testified that
he stopped a brown, Chevrolet pick-up for driving sixty-eight miles per hour in a sixty-five
miles per hour speed zone. As he approached the vehicle and the driver opened the car
door, Officer Villarreal identified a strong smell of burnt marihuana. According to Officer
Villarreal, as the driver exited the vehicle, he noticed the driver adjust a small bulge in his
stomach area. Officer Villarreal searched the driver and discovered the bulge to be
marihuana. The driver was arrested by an assisting officer.
Officer Villarreal testified that he next approached appellant, who was still sitting in
the vehicle. While appellant was still in the vehicle, Officer Villarreal noticed a small
bulge and cellophane peeking out of the fifth pocket of appellant's jeans. Officer
Villarreal testified that he has learned in his twelve years of police experience that the fifth
pocket is commonly used to store contraband. Officer Villarreal ordered appellant to exit
the vehicle, at which point he removed the bulging object from appellant’s fifth pocket and
discovered it to be 1.86 grams of cocaine. Appellant was then taken into custody.
After Officer Villarreal’s testimony and argument by counsel, the trial court made
the following finding:
2 So at this time unless I have other authority based on the vehicle, and then we got the smell of marijuana, the defendant being asked to leave the car and the fact that he had a bulge in his pocket after the driver had marijuana I believe does rise to the level that would be needed to have the defendant — person searched without a warrant.
The trial court then denied appellant’s motion to suppress. Appellant pleaded guilty and,
pursuant to a plea agreement, was sentenced to five years' incarceration. This appeal
followed.
II. Standard of Review and Applicable Law
Whether the trial court properly denied a defendant's motion to suppress is
reviewed under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720,
725 (Tex. Crim. App. 2007); Scardino v. State, 294 S.W.3d 401, 405 (Tex. App.—Corpus
Christi 2009, no pet.). The trial judge is the sole trier of fact and judge of the credibility of
the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d
17, 24–25 (Tex. Crim. App. 2007). We give almost total deference to a trial court's
determination of historical facts and mixed questions of law and fact that rely upon the
credibility of a witness, but we apply a de novo standard of review to pure questions of law
and mixed questions that do not depend on credibility. Martinez v. State, 348 S.W.3d
919, 922–23 (Tex. Crim. App. 2011). We must uphold the trial court's ruling if it is
reasonably supported by the record and is correct under any theory of law applicable to
the case. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).
The Fourth Amendment of the United States Constitution guarantees:
the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath
3 or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV. The issue of whether a search or seizure is reasonable under
the Fourth Amendment is measured in objective terms by examining the totality of the
circumstances, balancing the public interest served and the individual’s right to be free
from arbitrary detentions and intrusions. Kothe v. State, 152 S.W.3d 54, 62–63 (Tex.
Crim. App. 2004).
"'[T]he law is well settled in this jurisdiction that when an officer has probable cause
to believe that an offense is being committed in his presence . . . he has the right to take
reasonable measures to insure that the incriminating evidence is not destroyed[,] and
reasonable physical contact[, including a search of defendant's person,] is one of these
measures.'" Hitchcock v. State, 118 S.W.3d 844, 850 (Tex. App.—Texarkana 2003, pet.
ref'd) (quoting Hernandez v. State, 548 S.W.2d 904, 905 (Tex. Crim. App. 1977)) (other
citations omitted). Probable cause exists where the police have trustworthy information
that, considered as a whole, is sufficient to cause a reasonable person to believe a
particular person has committed or is committing an offense. Hughes v. State, 24
S.W.3d 833, 838 (Tex. Crim. App. 2000). "Though the concept evades precise
definition, [probable cause] involves 'a reasonable ground for belief of guilt' that is
'particularized with respect to the person to be searched or seized.'" Baldwin v. State,
278 S.W.3d 367, 371 (Tex. Crim. App. 2009) (quoting Maryland v. Pringle, 540 U.S. 366,
370–71 (2003)).
III. Discussion
By one issue, appellant argues that the trial court erred in denying his motion to
4 suppress because Officer Villarreal did not have sufficient facts, particularized to
appellant, to justify the search of his person.
In this case, there is no controversy over the relevant facts, which clearly
constituted trustworthy information from which Officer Villarreal could conclude that
appellant had been or was committing a crime. See Hughes, 24 S.W.3d at 838. We
first note that the odor of marihuana coming from a car is, alone, sufficient to give an
officer probable cause particularized to every person in the car. See Jordan v. State,
394 S.W.3d 58, 64 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (citations omitted).
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NUMBER 13-12-00214-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSE ARMANDO GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court of Live Oak County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria Memorandum Opinion by Justice Rodriguez Appellant, Jose Armando Garcia, challenges his conviction for possession of a
controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010).
By one issue, appellant argues that the trial court abused its discretion in denying his
motion to suppress. We affirm. I. Background
Appellant was indicted for possession of a controlled substance in connection with
the discovery by a Texas Department of Public Safety (DPS) officer of cocaine on
appellant’s person during a traffic stop. See id. Appellant filed a motion to suppress,
alleging that the incriminating evidence was obtained without probable cause or
reasonable suspicion particularized to appellant.
At the hearing on the motion to suppress, DPS Officer C.J. Villarreal testified that
he stopped a brown, Chevrolet pick-up for driving sixty-eight miles per hour in a sixty-five
miles per hour speed zone. As he approached the vehicle and the driver opened the car
door, Officer Villarreal identified a strong smell of burnt marihuana. According to Officer
Villarreal, as the driver exited the vehicle, he noticed the driver adjust a small bulge in his
stomach area. Officer Villarreal searched the driver and discovered the bulge to be
marihuana. The driver was arrested by an assisting officer.
Officer Villarreal testified that he next approached appellant, who was still sitting in
the vehicle. While appellant was still in the vehicle, Officer Villarreal noticed a small
bulge and cellophane peeking out of the fifth pocket of appellant's jeans. Officer
Villarreal testified that he has learned in his twelve years of police experience that the fifth
pocket is commonly used to store contraband. Officer Villarreal ordered appellant to exit
the vehicle, at which point he removed the bulging object from appellant’s fifth pocket and
discovered it to be 1.86 grams of cocaine. Appellant was then taken into custody.
After Officer Villarreal’s testimony and argument by counsel, the trial court made
the following finding:
2 So at this time unless I have other authority based on the vehicle, and then we got the smell of marijuana, the defendant being asked to leave the car and the fact that he had a bulge in his pocket after the driver had marijuana I believe does rise to the level that would be needed to have the defendant — person searched without a warrant.
The trial court then denied appellant’s motion to suppress. Appellant pleaded guilty and,
pursuant to a plea agreement, was sentenced to five years' incarceration. This appeal
followed.
II. Standard of Review and Applicable Law
Whether the trial court properly denied a defendant's motion to suppress is
reviewed under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720,
725 (Tex. Crim. App. 2007); Scardino v. State, 294 S.W.3d 401, 405 (Tex. App.—Corpus
Christi 2009, no pet.). The trial judge is the sole trier of fact and judge of the credibility of
the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d
17, 24–25 (Tex. Crim. App. 2007). We give almost total deference to a trial court's
determination of historical facts and mixed questions of law and fact that rely upon the
credibility of a witness, but we apply a de novo standard of review to pure questions of law
and mixed questions that do not depend on credibility. Martinez v. State, 348 S.W.3d
919, 922–23 (Tex. Crim. App. 2011). We must uphold the trial court's ruling if it is
reasonably supported by the record and is correct under any theory of law applicable to
the case. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).
The Fourth Amendment of the United States Constitution guarantees:
the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath
3 or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV. The issue of whether a search or seizure is reasonable under
the Fourth Amendment is measured in objective terms by examining the totality of the
circumstances, balancing the public interest served and the individual’s right to be free
from arbitrary detentions and intrusions. Kothe v. State, 152 S.W.3d 54, 62–63 (Tex.
Crim. App. 2004).
"'[T]he law is well settled in this jurisdiction that when an officer has probable cause
to believe that an offense is being committed in his presence . . . he has the right to take
reasonable measures to insure that the incriminating evidence is not destroyed[,] and
reasonable physical contact[, including a search of defendant's person,] is one of these
measures.'" Hitchcock v. State, 118 S.W.3d 844, 850 (Tex. App.—Texarkana 2003, pet.
ref'd) (quoting Hernandez v. State, 548 S.W.2d 904, 905 (Tex. Crim. App. 1977)) (other
citations omitted). Probable cause exists where the police have trustworthy information
that, considered as a whole, is sufficient to cause a reasonable person to believe a
particular person has committed or is committing an offense. Hughes v. State, 24
S.W.3d 833, 838 (Tex. Crim. App. 2000). "Though the concept evades precise
definition, [probable cause] involves 'a reasonable ground for belief of guilt' that is
'particularized with respect to the person to be searched or seized.'" Baldwin v. State,
278 S.W.3d 367, 371 (Tex. Crim. App. 2009) (quoting Maryland v. Pringle, 540 U.S. 366,
370–71 (2003)).
III. Discussion
By one issue, appellant argues that the trial court erred in denying his motion to
4 suppress because Officer Villarreal did not have sufficient facts, particularized to
appellant, to justify the search of his person.
In this case, there is no controversy over the relevant facts, which clearly
constituted trustworthy information from which Officer Villarreal could conclude that
appellant had been or was committing a crime. See Hughes, 24 S.W.3d at 838. We
first note that the odor of marihuana coming from a car is, alone, sufficient to give an
officer probable cause particularized to every person in the car. See Jordan v. State,
394 S.W.3d 58, 64 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (citations omitted).
But here, there was more than the mere odor of marihuana. Officer Villarreal also
directly observed a bulge and cellophane peeking out of appellant's fifth pocket, which
was a clear signal to someone with Officer Villarreal's twelve years of experience that
appellant very likely had drugs in that pocket. In short, Officer Villarreal was in
possession of facts, particularized to appellant, that gave him reasonable grounds to
believe that appellant was guilty of possession of drugs. See Baldwin, 278 S.W.3d at
371. And under the circumstances, searching appellant and recovering the cocaine
from his pocket was a reasonable, minimally invasive measure to ensure that the
incriminating evidence was not destroyed. See Hitchcock, 118 S.W.3d at 850–51
(holding that where the officer had probable cause that the driver and passenger of a car
had drugs on their persons, his immediate search of them was a justified, minimally
invasive means to preserve the evidence); see also Jordan, 394 S.W.3d at 64–65.
Viewing the totality of the circumstances, we conclude that Officer Villarreal's probable
cause determination was objectively reasonable and justified his search of appellant's
5 person. See Kothe, 152 S.W.3d at 62–63.
In our review, we must uphold the trial court's ruling if it is reasonably supported by
the record and is correct under any theory of law applicable to the case. See Stevens,
235 S.W.3d at 740. In this case, the trial court's ruling was supported by the undisputed
facts and correct under the law, and there was therefore no error in the denial of
appellant's motion to suppress. Appellant's issue is overruled.
IV. Conclusion
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 27th day of June, 2013.