      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-15-00647-CR



                                 Mario De Los Santos, Appellant

                                                  v.

                                   The State of Texas, Appellee


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 391ST JUDICIAL DISTRICT
       NO. D-10-0567-SB, HONORABLE BEN WOODWARD, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury convicted appellant Mario De Los Santos of the offense of possession of

a controlled substance, methamphetamine, in an amount of four grams or more but less than

two hundred grams.1 The district court rendered judgment on the verdict and assessed punishment,

enhanced by a prior conviction for the offense of possession of methamphetamine with intent

to deliver, at thirty years’ imprisonment. In a single issue on appeal, De Los Santos asserts that the

district court abused its discretion in denying his motion to suppress evidence. We will affirm the

district court’s judgment.


                                         BACKGROUND

                At the hearing on the motion to suppress, the district court heard evidence that on

April 16, 2010, Department of Public Safety Trooper Joel Callaway stopped a vehicle for speeding.


       1
           See Tex. Health & Safety Code § 481.115(d).
Callaway testified that the driver and sole occupant of the vehicle was identified as De Los Santos.

Upon making contact with De Los Santos, Callaway recounted, he “detected the odor of marihuana

in the vehicle.” Callaway added that the marihuana had a “burned” smell to it. Callaway also

noticed that De Los Santos was “acting nervous” and “breathing heavily” and that his hands and

voice were “shaking.” Callaway asked De Los Santos to exit the vehicle and De Los Santos

complied. Callaway recounted that upon searching De Los Santos for weapons, he found $4,900 in

cash on his person, in the form of one-hundred-dollar bills. Callaway further testified that he then

proceeded to search the vehicle and that, upon searching it, he found “a pink strawberrish crystal

substance and a clear baggy in the center console,” along with a wallet containing an additional

$352.00 in cash and “a glass pipe with methamphetamine residue that was located between the

center console and the driver’s seat.” On cross-examination, Callaway acknowledged that he found

no marihuana or marihuana paraphernalia inside the vehicle, nor did he see De Los Santos throw

anything out of the vehicle at any time.

               Other witnesses at the suppression hearing included Department of Public Safety

Officer Chris Dale, who searched the vehicle after it was impounded and testified that he found no

marihuana inside the vehicle; and De Los Santos, who claimed that there was no odor of marihuana

in the vehicle at the time of the traffic stop, denied that he had smoked marihuana prior to the stop,

and claimed that “to [his] knowledge, nobody has ever smoked marihuana in [his] vehicle.”2




       2
         An additional witness, Lisa Golden, was called by the defense to testify that a hair-follicle
sample taken from De Los Santos several days after the traffic stop tested negative for marihuana.
However, after Golden had testified to that fact, the district court excluded the documentary evidence
on which Golden’s testimony was based, as the district court concluded that it had not been properly
authenticated.

                                                  2
Additionally, a video recording of the traffic stop was admitted into evidence. On the recording,

prior to the search of the vehicle, Callaway can be heard asking De Los Santos whether he had

smoked “weed,” to which De Los Santos responded that he had not. Shortly thereafter, as Callaway

proceeded to search De Los Santos for weapons, De Los Santos can be heard asking Callaway, “Do

you think I’m smoking weed?” Callaway can be heard replying, “I don’t know.”

               At the conclusion of the suppression hearing, De Los Santos claimed that Callaway

was lying regarding the smell of marihuana inside the vehicle and that, consequently, Callaway had

no probable cause to search the vehicle without a warrant. The district court denied the motion to

suppress and the case proceeded to trial. At the conclusion of trial, the jury found De Los Santos

guilty of possession of methamphetamine as charged and the district court rendered judgment on the

verdict and assessed punishment as noted above. This appeal followed.


                                   STANDARD OF REVIEW

               We review a trial court’s ruling on a motion to suppress for abuse of discretion.3

We are to view the record “in the light most favorable to the trial court’s determination, and the

judgment will be reversed only if it is arbitrary, unreasonable, or ‘outside the zone of reasonable

disagreement.’”4 “We will sustain the lower court’s ruling if it is reasonably supported by the

record and is correct on any theory of law applicable to the case.”5 “The appellate court must apply


       3
         State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014) (citing State v. Dixon,
206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).
       4
         Id. (quoting Dixon, 206 S.W.3d at 590); see Montgomery v. State, 810 S.W.2d 372, 391-92
(Tex. Crim. App. 1991) (op. on reh’g).
       5
         Dixon, 206 S.W.3d at 590 (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.
App. 1990)).

                                                 3
a bifurcated standard of review, giving almost total deference to a trial court’s determination of

historic facts and mixed questions of law and fact that rely upon the credibility of a witness, but

applying a de novo standard of review to pure questions of law and mixed questions that do not

depend on credibility determinations.”6


                                            ANALYSIS

               In his sole issue on appeal, De Los Santos asserts that the district court abused

its discretion in denying his motion to suppress. However, rather than attack the legal basis of the

district court’s decision, specifically its conclusion that the odor of marihuana provided Callaway

with probable cause to search the vehicle, De Los Santos claims that the district court did not act in

a “neutral and detached” manner in evaluating the credibility of Trooper Calloway’s testimony that

he had smelled marihuana inside the vehicle. As support for this contention, De Los Santos points

to the following exchange during the parties’ closing arguments at the suppression hearing:


       [Prosecutor]:           Your Honor, the defense has conceded that the search without
                               a warrant based upon the smell of marihuana is legal and
                               proper. As I understand, his argument today is they just don’t
                               believe the trooper.

       [The Court]:            That’s right, and it’s whether or not the Court believes Mr.
                               Callaway is lying.

       [Prosecutor]:           And based on the credibility of the highway patrol and his
                               actions, which the Court was allowed to review by both his
                               testimony and demeanor in court, and by the Court’s
                               observations on the videotape. It is very obvious to note that
                               Trooper Callaway and the Defendant had some discussion


       6
           Martinez v. State, 348 S.W.3d 919, 922-23 (Tex. Crim. App. 2011) (citing Guzman
v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997)).

                                                  4
                     regarding marihuana almost as soon as he got out of the
                     vehicle, and Trooper Callaway never wavered in his
                     testimony that within 40 seconds of having made contact with
                     Mr. De Los Santos, he had decided he was going to search the
                     vehicle.

                     ....

                     Now, the defense, and the Defendant, through his testimony,
                     says “I wasn’t smoking marihuana.” He says that on the tape
                     at some point. Who was smoking the marihuana is not all
                     that important. It’s just that the officer detected the odor of
                     the marihuana coming from the vehicle.

                     I don’t know if the Defendant had a buddy in the vehicle 30
                     minutes before the stop that had smoked a joint. It doesn’t
                     really matter. If the odor lingered and the officer detected it,
                     it gave him the probable cause under the automobile
                     exception and his training to go ahead and search that vehicle
                     for contraband, which he found. . . .

[The Court]:         All right. Thank you. Anything else, [defense counsel]?

[Defense counsel]:   Well, Your Honor, we believe the video speaks for itself in
                     that it was 12 minutes into this encounter before the Trooper
                     Callaway told Mr. De Los Santos that he smelled marihuana.
                     Up until that point, the trooper was asking him about his
                     marihuana possession in the past, he was asking him if he
                     drank alcohol, he was running a criminal history check on
                     him.

[The Court]:         All of which is good for his conduct, would you agree?

[Defense counsel]:   But the probable cause for the stop was speeding, Your
                     Honor, and he had him out of the truck within one minute
                     after approaching the vehicle.

[The Court]:         Is it your contention that the Trial Court is to second guess the
                     officer in the field and establish Court ordered guidelines how
                     they are supposed to conduct themselves? I am supposed to
                     second guess him?

[Defense counsel]:   No, Your Honor.

                                        5
       [The Court]:           I am supposed to tell him, “No, you didn’t smell marihuana”?

       [Defense counsel]:     Well, what we need to look at is all the other factors. There
                              was no marihuana found—

       [The Court]:           And the very fact that he waited some 12 minutes before he
                              started the search leads me to believe that he was doing a very
                              good job, that he was doing what he was supposed to do with
                              his training. If he had pulled him out and started searching
                              immediately, I would have been much more suspicious about
                              this search.

       [Defense counsel]:     Well, he did pull him out and did a [] frisk on him, I mean,
                              without—

       [The Court]:           He is allowed to.

       [Defense counsel]:     Well, without articulating any suspicion for why he wanted
                              him to do that?

       [The Court]:           That’s correct. I am not going to tell this officer how he is
                              supposed to conduct his traffic stops or searches.


According to De Los Santos, the above comments by the district court demonstrate that it was biased

against him and unduly deferential toward the arresting officer.

               “Due process requires a neutral and detached hearing body or officer.”7 However,

“[a]bsent a clear showing of bias, we presume a trial court is neutral and detached.”8 We cannot

conclude that the above comments or anything else in the record demonstrate a “clear showing

of bias” against De Los Santos. As the State observes in its brief, “[n]owhere does the trial judge

state he is refusing to hear or consider testimony put forth by appellant on the issue at hand,”

       7
         Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006) (citing Gagnon v. Scarpelli,
411 U.S. 778, 786 (1973)).
       8
           Tapia v. State, 462 S.W.3d 29, 35-36 (Tex. Crim. App. 2015) (citing id.; Thompson
v. State, 641 S.W.2d 920, 921 (Tex. Crim. App. 1982)).

                                                  6
i.e., whether the officer smelled the odor of burnt marihuana inside the vehicle. Rather, the

district court’s comments were merely to the effect that it found unconvincing De Los Santos’s

proposed inferences that the officer should be deemed not credible based on the sequence and timing

of events during the search. The district court, as the finder of fact at the suppression hearing, was

entitled to weigh the evidence presented and make credibility determinations and inferences

regarding that evidence, including finding credible the officer’s testimony that he had smelled

marihuana inside the vehicle.9 Further evidence in support of the district court’s finding included

Callaway’s testimony that he had been a highway patrolman for eight years, that he had received

instruction in the detection and identification of different types of drugs, including marihuana,

and that he was familiar with the smell of marihuana and had encountered the smell of marihuana

“many times.” In contrast, De Los Santos presented no evidence controverting Callaway’s account

of his background, training, or ability to identify the smell of marihuana. On this record, we cannot

conclude that the district court abused its discretion in crediting the officer’s testimony that he had

smelled marihuana inside the vehicle and thus in determining that the officer had probable cause to

search the vehicle on that basis.10




       9
            See Wilson v. State, 311 S.W.3d 452, 458 (Tex. Crim. App. 2010).
       10
           See Keehn v. State, 279 S.W.3d 330, 335-36 (Tex. Crim. App. 2009); Neal v. State,
256 S.W.3d 264, 282 (Tex. Crim. App. 2008); Luera v. State, 561 S.W.2d 497, 498 (Tex. Crim.
App. 1978); Dickey v. State, 96 S.W.3d 610, 613 (Tex. App.—Houston [1st Dist.] 2002, no pet.);
Small v. State, 977 S.W.2d 771, 774-75 (Tex. App.—Fort Worth 1998, no pet.); see also Robinson
v. State, No. 01-10-00727-CR, 2012 WL 1454451, at *4 (Tex. App.—Houston [1st Dist.] Apr. 26,
2012, pet. ref’d) (mem. op, not designated for publication) (“[T]he discovery of marihuana is
not necessary for a trial court to find that an officer had probable cause to search a vehicle based
on the odor of marihuana.”); Williams v. State, No. 14-01-01250-CR, 2002 WL 31426293,
at *2 (Tex. App.—Houston [14th Dist.] Oct. 10, 2002, no pet.) (not designated for publication)

                                                  7
               We overrule De Los Santos’s sole issue on appeal.


                                        CONCLUSION

               We affirm the judgment of conviction.



                                             __________________________________________

                                             Bob Pemberton, Justice

Before Chief Justice Rose, Justices Pemberton and Bourland

Affirmed

Filed: July 22, 2016

Do Not Publish




(“Although no marihuana was found, Deputy Palermo smelled marihuana emanating from the car
. . . . Accepting the deputy’s facts as true, the odor of burning marihuana provided probable cause
to search the car.”).


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