ERIC PEREZ v. THE STATE OF TEXAS--Appeal from County Court at Law No 1 of Nueces County

NUMBER 13-04-144-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ERIC PEREZ, Appellant,

v.

THE STATE OF  TEXAS, Appellee.

On appeal from the County Court at Law No. 1

of Nueces County, Texas.

  MEMORANDUM OPINION[1]

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

 

Appellant, Eric Ben Perez, was charged with the misdemeanor offense of possession of less than two ounces of marihuana.[2] The trial court denied his motion to suppress evidence,[3] and he pleaded guilty to the offense.[4] The trial court assessed punishment at thirty days' confinement in the county jail and a $1,000 fine. In his sole issue presented, Perez contends the trial court erred in denying his motion to suppress. We affirm.

I. FACTS

Deputy Constable Hector Garcia testified that, at approximately 9:00 p.m. on March 12, 2003, he was traveling at about five miles per hour when he noticed a vehicle approaching an intersection.[5] At the time, deputy Garcia was en route to serve a civil document.[6] The police unit window was down. As the other vehicle approached the intersection traveling on the same street, deputy Garcia noticed smoke coming out of the interior of the car that "smelled like marihuana." He made a U-turn and stopped the vehicle. Deputy Garcia further testified on direct examination:

 

I approached the vehicle and asked for his driver's license and insurance. And after that, I still smelled the strong odor of marihuana coming from inside the vehicle. I asked the driver if he . . . had been smoking, and his answer was, "Yes." So at that time, I asked him to step out of the vehicle. We went [toward] the rear of the car, and I asked him to place his hands on top of the car. I patted him down for weapons. When I went down [toward] the front, I felt a bulge. I asked him what this was. He said he had some buds with him. And I picked up his shorts because they were kind of loose and baggy. And when I did that, that's when the plastic baggy with the green, leafy substance dropped to the ground.

On direct examination by the prosecutor, deputy Garcia testified as follows:

Q: Okay. And were you able to identify that as marihuana?

A: When I picked it up, yes.

Q: Okay. When you stopped the Defendant, Eric Perez, did you tell him why you had stopped him?

A: I told him that it was, you know, some marihuana coming from his car, and that's why I initially stopped him for.

Q: Did he make any statements in response to that?

A: No. He was justByou could tell his eyes were bloodshot, and he was just relaxed andBlike he's been through it before.

Deputy Garcia testified that, when the vehicle stopped, the smell of marihuana emanated from the vehicle.

 

In his appellate brief, Perez points to contrary documentary evidence: (1) in the original field report the deputy recorded he saw Perez smoking marihuana; (2) in the offense report the deputy recorded that he smelled marihuana emanating from the vehicle; and (3) the deputy did not state in either report that he smelled marihuana when he stopped Perez's vehicle. On the defense's motion, the trial court admitted both reports in evidence. Deputy Garcia admitted he could not explain the differences. The following ensued on cross-examination of deputy Garcia:

Q: Okay. And is it your standard procedure when you make a stop to do a pat-down frisk for officer safety?

A: Not the procedure there, but there [were] three subjects in the vehicle; and just for my safety, that's what I did. . . . I believe[d] that at the time that there was some kind of weapons or narcotics there in that vehicle.

Q: So you might have been patting him down for narcotics as well?

A: I patted him down for weapons. That's what I did.

Deputy Garcia testified that Perez was cooperative. He further testified upon

questioning by the prosecutor:

Q: Based on your training and experience, are you allowed to make a traffic stop based on the smell of burnt marihuana alone?

A: Yes.

Q: Based on your training and experience, are you allowed to search a motor vehicle based on the smell of burnt marihuana alone?

A: Yes.

Q: And it's your testimony today that you did smell the odor of burnt marihuana?

A: Yes, I did; and yes, it is.

Q: . . . Does your report state that you smelled the odor of burnt marihuana coming from the Defendant's vehicle?

A: Yes, it does.

Q: Can you read that sentence to us?

 

A: It says, "While I passed the vehicle, a strong odor of marihuana smoke was coming from inside the vehicle. I made a U-turn . . . to traffic stop this vehicle. . . ."

The trial court denied the motion to suppress.

II. ISSUE PRESENTED

Perez contends that the trial court should have suppressed the evidence seized during a pat-down search because the officer conducting the search was not motivated by a reasonable safety concern. The State counters that deputy Garcia was authorized to search Perez incident to his arrest.

III. BURDENS OF PROOF AND STANDARD OF REVIEW

A. Burdens of Proof

 

A motion to suppress is a specialized objection to the admissibility of evidence. Morrison v. State, 71 S.W.3d 821, 826 (Tex. App.BCorpus Christi 2002, no pet.) (citing Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981) (op. on reh'g) (en banc)). An accused seeking to suppress evidence on the basis of illegal police conduct bears the burden of proof to rebut a presumption of proper police conduct. See McGee v. State, 105 S.W.3d 609, 613 (Tex. Crim. App. 2003). The accused satisfies the burden by proving the police acted without a warrant. Id. The burden then shifts to the State to either produce a warrant or prove the reasonableness of the challenged conduct. Id. If the State produces a warrant, the burden of proof again shifts to the accused to show the invalidity of the warrant. Russell v. State, 717 S.W.2d 7, 9 10 (Tex. Crim. App. 1986) (op. on reh'g). If the State is unable to produce a warrant, it must prove the reasonableness of the search or seizure. Id. The State may demonstrate reasonableness by proving probable cause. See McGee, 105 S.W.3d at 613 (noting that State meets burden in suppression hearing by proving one of statutory exceptions to warrant requirement). The State must prove probable cause by a preponderance of the evidence. Porter v. State, 938 S.W.2d 725, 727-28 (Tex. App.BHouston [1st Dist.] 1996, pet. ref'd).

B. Standard of Review

 

At a suppression hearing, the trial court is the sole finder of fact. Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993); Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). The trial court is free to believe or disbelieve any or all parts of a witness's testimony. Dewberry v. State, 4 S.W.3d 735, 747 (Tex. Crim. App. 1999) (en banc); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) (en banc). Thus, in reviewing a trial court's ruling on a motion to suppress, we give almost total deference to the trial court's determination of historical facts and application-of-law-to-fact questions that turn on credibility and demeanor. Perales v. State, 117 S.W.3d 434, 437 (Tex. App.BCorpus Christi 2003, pet. ref'd); Morrison, 71 S.W.3d at 827 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc)).[7] We review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Morrison, 71 S.W.3d at 827 (citing Guzman, 955 S.W.2d at 89). When the trial court does not make explicit findings of historical facts, we review the evidence in the light most favorable to the trial court's ruling. Morrison, 71 S.W.3d at 827 (citing Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000)). In the absence of explicit fact findings, we assume that the trial court's ruling is based on implicit fact findings supported in the record. Perales, 117 S.W.3dat 437; see Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000) (recognizing implicit fact findings); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (en banc). We then review de novo whether the facts, express or implied, are sufficient to provide legal justification for admitting the complained-of evidence. See Morrison, 71 S.W.3d at 827 (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)).

We uphold a trial court's ruling on a suppression motion if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (en banc); Perales, 117 S.W.3d at 438. This is true even if the decision is correct for reasons different from those espoused by the trial court. Romero, 800 S.W.2d at 543.

IV. DISCUSSION

 

Stopping an automobile and detaining its occupants is a "seizure" within the meaning of the Fourth Amendment. Morrison, 71 S.W.3d at 827 (and cited cases). No evidence obtained from an officer in violation of any provisions of the federal or State Constitution or laws shall be admitted in evidence against the accused on the trial of any criminal case. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. Id._ 14.01(b) (Vernon 2005); Pierce v. State, 32 S.W.3d 247, 248 n.1 (Tex. Crim. App. 2000) (en banc).

 

It is undisputed that the deputy did not have a warrant to arrest Perez or search his person. Thus, it was the State's burden at the suppression hearing to show by a preponderance of the evidence that the arresting officer had at least a reasonable suspicion that Perez either had committed an offense or was about to do so before he stopped Perez. See McGee, 105 S.W.3d at 613; see also Russell, 717 S.W.2d at 9 10. Giving almost total deference to the trial court in determining the historical facts, we believe those facts to be that the deputy observed Perez in close proximity, while the officer was traveling about five miles per hour in a residential neighborhood and while Perez was slowly approaching a stop sign. The driver's side window of both vehicles was open. The deputy observed smoke emanating from Perez's vehicle, and, as their vehicles passed each other in opposite directions, he smelled burnt marihuana emanating from Perez's vehicle. The question then becomes whether these facts, when viewed de novo, are sufficient to establish a violation of the law.[8] See Morrison, 71 S.W.3d at 828.

Perez points to contrary evidence that the deputy's reports did not comport with his testimony during the suppression hearing. Thus, he argues, the articulated reason to stop, the smell of marihuana, is not supported in the appellate record. Perez further argues that, even if the deputy lawfully stopped and detained Perez, the subsequent pat-down search for weapons was unlawful because the deputy did not provide any articulable facts that would serve as a basis for a safety concern. The State counters that the deputy's subjective intent to conduct a pat-down search for weapons is immaterial because, viewed objectively, the facts show no Fourth Amendment violation.[9]

 

Viewed in the light most favorable to the trial court's ruling and with appropriate deference to the trial court's implied credibility determinations, the evidence shows that deputy Garcia witnessed a penal offense when he (1) observed smoke emanating from a vehicle in close proximity, (2) smelled the odor of burnt marihuana emanating from the same vehicle, (3) heard Perez admit that he had been smoking, (4) heard Perez admit that he had "some buds" with him, (5) saw a plastic baggy with a green, leafy substance drop to the ground beneath Perez. Deputy Garcia provided sufficient objective facts to demonstrate that Perez was committing a controlled substance offense, possession or use of marihuana, in his view and presence. On these facts, deputy Garcia was authorized to arrest Perez without a warrant for any offense committed in the officer's presence or view. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005); Pierce, 32 S.W.3d at 248 n.1; McGee, 105 S.W.3d at 614; Stull v. State, 772 S.W.2d 449, 451 (Tex. Crim. App. 1989) (en banc) ("The test for probable cause is [w]hether at that moment the facts and circumstances within the officer's knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrested person] had committed or was committing an offense."). The privacy interests of a person who has been lawfully arrested must yield, for a reasonable time and to a reasonable extent, to permit the police to search for weapons, means of escape, and evidence. Oles v. State, 993 S.W.2d 103, 107 (Tex. Crim. App. 1999). It is irrelevant that the arrest occurs immediately before or after the search, as long as sufficient probable cause exists for the officer to arrest before the search. Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986) (en banc) (citing Rawlings v. Kentucky, 448 U.S. 98, 111 (1980)). We conclude that the deputy's search was a search incident to a lawful arrest. See McGee, 105 S.W.3d at 615; see also Villarreal, 935 S.W.2d at 138 (holding that trial court's ruling may be upheld on any theory applicable to case); Romero, 800 S.W.2d at 543 (noting that trial court's ruling may be upheld on any theory applicable to case even if decision is correct for reasons different from those espoused by trial court). Accordingly, we conclude that the marihuana was not the product of an illegal search. See McGee, 105 S.W.3d at 615.

V. CONCLUSION

We overrule Perez's sole issue. We affirm the trial court's order denying the motion to suppress.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 28th day of July, 2005.

 

[1] See Tex. R. App. P. 47.2, 47.4.

[2] Tex. Health & Safety CodeAnn. ' 481.121 (Vernon 2003).

[3]Perez filed a motion to suppress evidence obtained through the arresting officer's search based, in part, on violations of the Fourth Amendment and Texas Code of Criminal Procedure article 38.23. Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005).

[4]Perez reserved his right to appeal the denial of his motion to suppress. The trial court has certified that this is a plea bargain case but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and Perez has the right of appeal. See Tex. R. App. P. 25.2(A), (B).

[5]Deputy Garcia testified that the vehicle and his unit were "pretty close" to each other. The other vehicle was approaching a stop sign at a slow pace.

[6] He testified that the policy of the department is to stop service of civil documents at 9:45 p.m.

[7]Under Guzman, the relevant standard of review depends on the type of question presented. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc). We must afford almost total deference to the trial court's determination of the historical facts that are supported by the record, especially where the determination is based on an evaluation of credibility and demeanor. Id. We also afford almost total deference to the trial court's application of the law to the facts, where the application turns on an evaluation of credibility and demeanor. Id. Where the application of the law to the facts does not revolve around an evaluation of credibility and demeanor, we review the issue de novo. Id. However, in such a case we still afford deference to the trial court's determination of the subsidiary fact questions. Id.

[8] The only evidence before the trial court was the testimony of the arresting officer. Most reviews of motion to suppress cases will be under a bifurcated standard, in which the historical determination made by the trial court will be accorded total deference while the application of the law to the facts will be analyzed under a de novo standard of review. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). Where there is uncontroverted evidence and there is no evidence that the trial court disbelieved the testimony, de novo review is appropriate. Id. at 858. Even where the evidence is controverted and thus credibility and demeanor are factors, if the issue to be decided does not turn on credibility or demeanor, a de novo standard applies to the review of the application of law to facts. Loserth v. State, 963 S.W.2d 770, 772-73 (Tex. Crim. App. 1998).

[9]Whether a Fourth Amendment violation has occurred "turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time, and not on the officer's actual state of mind at the time the challenged action was taken." O'Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000) (citing Maryland v. Macon, 472 U.S. 463, 470 71 (1985)). The officer need not be absolutely certain that the individual is armed. Id. The issue is whether a reasonably prudent person would justifiably believe that his safety or that of others was in danger. Id.