      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00730-CR



                             Roger Anthony Villarreal, Appellant

                                                 v.

                                  The State of Texas, Appellee


                     FROM THE COUNTY COURT OF COKE COUNTY
                NO. 06-4122, HONORABLE ROY BLAIR, JUDGE PRESIDING



                            MEMORANDUM OPINION


               After the court denied his motion to suppress evidence, Roger Anthony Villarreal

pleaded no contest to possession of less than two ounces of marijuana. The court found him guilty,

fined him $400, and sentenced him to thirty days in jail, suspended during twelve months of

community supervision. By his sole point of error, Villarreal contends that the court erred by

denying his motion to suppress, contending that the warrantless search of his motor vehicle that

revealed the marijuana was not justified by probable cause. We affirm.

               Department of Public Safety Trooper Scott Frasier initiated the stop of a pickup truck

he observed traveling seventy-six miles per hour in a seventy mile per hour zone. Frasier testified

that, as the truck stopped, he noticed the driver and passenger “were making a lot of movements”

in addition to the expected movements like reaching to get proof of insurance or removing a seat
belt. The movements did not produce the insurance card, which the passenger later retrieved from

the center console, leading Frasier “to believe they had hidden something . . . .”

                Frasier asked the driver, Villarreal, to move to the rear of the truck to discuss the stop.

Frasier testified that, “As he stepped out of the truck and came back to the back I noticed, as he

got out, there appeared to be a marijuana seed in the driver’s seat.” Frasier testified that he

recognized the seed as marijuana from his training at academies for the Department of Public Safety

and the San Angelo Police Department, where “they brought in marijuana, showed us what it looked

like.” Frasier also testified that, “[t]hrough seventeen years of law enforcement I’ve arrested

numerous people with marijuana, so I’ve had many, many occasions to see what marijuana seeds

look like. So I’m just familiar with basically what it looks like and what it is.” Frasier testified that

he had “no doubt” that the seed was a marijuana seed.

                Frasier testified that Villarreal “kind of seemed nervous, a little more than usual.”

Returning to the truck to ask for the proof of insurance, Frasier noticed a cigarette lighter on the

center console. He asked Villarreal and his passenger, Billy Joe Hamilton,1 if they smoked. Both

denied smoking.

                Frasier testified that, upon seeing the seed, he “had probable cause to believe there

was marijuana in the car” and that if he had left the car to get a search warrant, “that would

give them ample opportunity to get rid of the marijuana, much as I believe that’s what they were




        1
          Billy Joe Hamilton was also indicted for possession of marijuana, moved to suppress
evidence, and pleaded no contest after his motion to suppress evidence was denied. In a separate
case, we affirm the denial of Hamilton’s motion to suppress and his conviction. Hamilton v. State,
No. 03-06-00730-CR, 2007 Tex. App. LEXIS 7239 (Tex. App.—Austin Aug. 31, 2007, no pet. h.).

                                                    2
doing whenever I stopped them. That’s why the movement.” He testified that “the movements

they made as the vehicle came to a stop made me believe they were up to something—more or less

hiding something, my experience has shown . . . .” Frasier testified that the “totality of the

circumstances”—the combination of the pre-stop movements, Villarreal’s nervousness, the presence

of the lighter when both claimed not to smoke, and the marijuana seed combined to give

him probable cause to believe that the truck contained marijuana, justifying a warrantless search of

the truck.

                Villarreal testified that he did not smoke. Hamilton testified that he told Trooper

Frasier that a coworker who had been in the truck smoked. Hamilton testified that the lighter and

the carton of cigarettes found in the truck belonged to the coworker. Both Villarreal and Hamilton

testified that they use cigarette lighters to heat shrink plastic wrapped wires while installing air

conditioners.

                The search revealed marijuana residue on the kick plate of the front door, marijuana

residue in the console in a container, and a partially smoked marijuana cigarette and two baggies

containing marijuana inside a styrofoam cup in a cupholder on the driver’s side.

                We review a trial court’s ruling on a motion to suppress using a bifurcated standard,

giving almost total deference to a trial court’s determination of historical facts and reviewing

de novo the court’s application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

2002). People have the right to be free from unreasonable searches and seizures of their persons and

their property. U.S. Const. amend IV. An officer may conduct a warrantless search of a motor

vehicle if the officer has probable cause to believe the vehicle contains evidence of a crime. Powell



                                                  3
v. State, 898 S.W.2d 821, 827 (Tex. Crim. App.1994). The standard for assessing probable cause

is the same for warrantless searches as for those supported by search warrants. Whiteley v. Warden,

401 U.S. 560, 566 (1971). Probable cause exists where the known facts and circumstances are

sufficient to justify a person of reasonable prudence in believing that contraband or evidence of a

crime will be found. Ornelas v. United States, 517 U.S. 690, 696 (1996). The totality of the

circumstances must allow a conclusion that there is a fair probability of finding contraband or

evidence at a particular location. Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App. 2006).

               The only issue in this appeal is whether the circumstances provided probable cause

to support the search. The legitimacy of the stop is unchallenged. There is no assertion that Frasier

did not see a seed in plain view that he believed was a marijuana seed. The trial court found

Frasier’s testimony “convincing and truthful” and concluded that Frasier had “great credibility.” The

court expressly found Villarreal and Hamilton’s testimony about the work purpose of the lighter “not

credible.” Giving deference to the trial court’s credibility determination and findings of fact, we

conclude that the marijuana seed, in the context of the unusual movements preceding the stop and

Villarreal’s extra nervousness, provided probable cause for a reasonable person to believe marijuana

was in the truck sufficient to support the reasonableness of the warrantless search of the vehicle. See

Adams v. State, 634 S.W.2d 785, 793 (Tex. App.—Austin 1982, no pet.) (partially-burned marijuana




                                                  4
seeds in plain view on driver’s seat during traffic stop provided reasonable basis for belief that car

contained marijuana).

               Affirmed.




                                               G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop;
  Concurring Opinion by Justice Patterson

Affirmed

Filed: September 25, 2007

Do Not Publish




                                                  5
