                                 MEMORANDUM OPINION
                                        No. 04-10-00411-CR

                                      Edward VILLARREAL,
                                            Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                      From the County Court at Law No. 5, Bexar County, Texas
                                      Trial Court No. 300753
                              Honorable Linda F. Penn, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Marialyn Barnard, Justice, concurring in the judgment only

Delivered and Filed: February 9, 2011

AFFIRMED

           This case arises from the denial of Appellant Edward Villarreal’s motion to suppress

evidence of marihuana discovered in his backpack. Villarreal argues that the evidence was

obtained through an unreasonable search. We affirm the trial court’s order.

                                           BACKGROUND

           Villarreal, while riding his bicycle down a public roadway at night, was pulled over by

Officer Ellis for lacking required lights and running a stop sign. Villarreal ignored Officer
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Ellis’s instructions to stand by the police car and, instead, tried to stand behind Officer Ellis.

While frisking Villarreal, Officer Ellis smelled burnt marihuana emanating from Villarreal’s

backpack. Officer Ellis asked Villarreal for consent to search his backpack, but Villarreal

declined. Officer Ellis searched Villarreal’s backpack and discovered a baggie of marihuana and

a partially smoked marihuana cigarette. Villarreal was charged with possession of marihuana.

After his motion to suppress was denied, Villarreal pled no contest to the offense. Villarreal

appeals the denial of his motion.

                                      MOTION TO SUPPRESS

       We review a trial court’s order on a motion to suppress under a bifurcated standard,

affording almost total deference to the trial court’s factual determinations. Amador v. State, 221

S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). If the resolution of the issues turns on the evaluation of a witness’s credibility and

demeanor, we afford the same level of deference to a trial court’s ruling on “application of law to

fact questions,” or “mixed questions of law and fact.” Amador, 221 S.W.3d at 673 (internal

quotes omitted). If not, we review the application of law to the facts de novo. See id.

       Routine traffic stops are investigative detentions that must be based on reasonable

suspicion. Martinez v. State, 236 S.W.3d 361, 369 (Tex. App.—Fort Worth 2007, pet. ref’d,

untimely filed) (citing Berkemer v. McCarty, 468 U.S. 420, 436 (1984)). These investigative

detentions are governed by the two-pronged test in Terry v. Ohio, 392 U.S. 1 (1968). See id.

First, a court must determine whether the officer’s action was justified at its inception. Kothe v.

State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). Second, the search and seizure must be

reasonably related in scope to the circumstances that justified the stop. Id.




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        In determining whether the officer’s action was justified at its inception under the first

prong of Terry, a court must consider whether the testifying officer has pointed to “specific,

articulable facts that, when combined with rational inferences from those facts, would lead him

to reasonably conclude that a particular person actually is, has been, or soon will be engaged in

criminal activity.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “These facts

must amount to more than a mere hunch or suspicion.” Brother v. State, 166 S.W.3d 255, 257

(Tex. Crim. App. 2005).

        Here, Officer Ellis testified that he observed Villarreal commit two traffic violations:

riding a bicycle without required lights and running a stop sign. See TEX. TRANSP. CODE ANN.

§§ 551.101, 551.104(b)(1)(2) (West 2010). Because there is evidence to support the trial court’s

finding that Officer Ellis had reasonable suspicion to detain Villarreal for violating traffic laws,

Officer Ellis’s detention of Villarreal was justified at its inception.

        Next, in deciding whether the scope of the seizure is reasonably related to the

circumstances that justified the stop, a court measures reasonableness in objective terms by

examining the totality of the circumstances. Ford, 158 S.W.3d at 492; Kothe, 152 S.W.3d at 62–

63. Once an officer makes a valid stop for a traffic offense, the officer may search the suspect

for evidence of any other offense for which the officer unexpectedly acquires probable cause

while investigating or questioning the suspect. See Atwood v. State, 509 S.W.2d 342, 344 (Tex.

Crim. App. 1974).

        Officer Ellis testified that Villarreal was wearing his backpack when he was patting down

Villarreal. He also testified that he smelled burned marihuana emanating from Villarreal’s

backpack as he was searching Villarreal’s person for weapons. During the legitimate detention

of a defendant, the smell of marihuana may give an officer additional probable cause to justify a



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search. See Razo v. State, 577 S.W.2d 709, 710–11(Tex. Crim. App. 1979); see also Aldridge v.

State, 482 S.W.2d 171, 173–74 (Tex. Crim. App. 1972) (“[The] [o]fficer . . . having smelled the

smoke of marihuana, [and] having seen what appeared to be a knife with a blade more than 5 1/2

inches in length in plain view, . . . was justified in searching the automobile for marihuana . . .

.”); Longoria v. State, 747 S.W.2d 50, 52 (Tex. App.—San Antonio 1988, no writ) (“Once

appellant opened the back of the vehicle, the first officer and then the second officer smelled the

odor of marijuana. Probable cause arose at that time for the officer to believe a crime had been

or was being committed.”). Thus, Officer Ellis had probable cause to search the back pack for

marijuana. See Razo, 577 S.W.2d at 710–11; Aldridge, 482 S.W.2d at 173–74; Longoria, 747

S.W.2d at 52.

                                          CONCLUSION

       We, therefore, affirm the judgment of the trial court.


                                                 Rebecca Simmons, Justice

DO NOT PUBLISH




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