Opinion issued November 20, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-13-00374-CR
                          ———————————
                       JUAN VILLAREAL, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 183rd District Court
                          Harris County, Texas
                      Trial Court Case No. 1353512



                         MEMORANDUM OPINION

      A jury found appellant, Juan Villareal, guilty of the felony offense of

possession of a controlled substance, namely cocaine, weighing between 4 and 200
grams. 1 After finding true the allegation in an enhancement paragraph that he had

previously been convicted of a felony offense, the jury assessed his punishment at

confinement for 25 years and a fine of $10,000. In his sole issue, appellant

contends that the trial court erred in denying his motion to suppress evidence.

      We affirm.

                                    Background

      Houston Police Department (“HPD”) Officer C. Dexter testified that on

July 7, 2012, while on patrol around 2:00 a.m., he saw appellant drive his car into a

Walgreens store parking lot “at a fast speed,” pull the car “directly in front” of the

store’s doors, and stop “across two handicap parking spaces.” Appellant left the

engine running, exited the car, “held his waistband,” and “ran into the store at a

fast speed.” Dexter believed that appellant was committing a robbery.

      Officer Dexter drove his patrol car into the parking lot and parked out of the

view from the Walgreens’ doorway. As Dexter “was pulling up,” he looked at

appellant’s car to verify that there were no other passengers inside. Upon exiting

his patrol car, he did not enter the Walgreens, but instead looked into the store’s

entrance to make sure “everything was okay.” Dexter saw a security guard “sitting

down where he normally sits” and appellant speaking to an employee at the front

cash register.

1
      See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.115(a), (d)
      (Vernon 2010).

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       Officer Dexter then proceeded to appellant’s car to look inside it for

weapons because he was going to issue appellant a citation and instruct him to

move his car. Dexter noted that the driver’s side window of the car was “cracked”

open, and he smelled “the strong odor of marijuana coming from inside th[e]

vehicle.” When he returned to the store and asked appellant to come outside and

supply his identification, Dexter “smell[ed] a strong odor of marijuana coming

from [appellant].” Appellant proceeded to move his car “about 40 feet down the

parking lot to an empty space.” And Dexter, in turn, pulled his patrol car behind

appellant’s car.

       Officer Dexter then noticed appellant, who was still in his car, “reaching

down towards the floorboard of [his] car . . . [a]nd whatever he was doing . . . was

taking a long time.” Dexter exited his patrol car and instructed appellant “to get

out.” Appellant exited his car, but “immediately started walking back into the

Walgreens,” although Dexter had “command[ed]” him to stop. Appellant refused,

became “belligerent,” and would not take his hands out of his pockets. Dexter

handcuffed appellant, patted him down for weapons, and put him in the backseat of

his patrol car.

       Officer Dexter then returned to appellant’s car, but did not open the door.

He looked into the car through the driver’s side window with his flashlight and

saw, in “plain view,” “a small baggie of . . . white powder consistent with a



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packag[e] of cocaine.” The “package had a Batman logo on it. . . . [I]n the center

console there was [also] a scale and a small baggie containing [a large amount] of

empty baggies with the same Batman logo.” Dexter proceeded to his patrol car

and asked appellant for his keys, which appellant indicated were on the ground

near the patrol car. After Dexter located the keys, appellant, voluntarily and

unprompted, told Dexter that “there’s nothing inside the vehicle” and he “could

check inside of it.”

      Thereafter, Officer Dexter searched appellant’s car. He recovered the “small

baggie of . . . white powder” and the other items from the center console; he also

found “a baggie containing more narcotics” inside the speaker on the floorboard of

the driver’s side of the car. Another HPD officer, O. Sampson, who had arrived on

the scene, recovered “additional narcotics” inside the floorboard speaker on the

passenger’s side of the car.

                               Standard of Review

      We review a trial court’s denial of a motion to suppress evidence under a

bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.

Crim. App. 2013). We review the trial court’s factual findings for an abuse of

discretion and the trial court’s application of the law to the facts de novo. Id. We

generally consider only the evidence adduced at the suppression hearing unless the

parties consensually re-litigate the issue at trial, in which case we also consider



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relevant trial testimony. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.

1996). At a suppression hearing, the trial court is the sole and exclusive trier of

fact and judge of the witnesses’ credibility, and it may choose to believe or

disbelieve all or any part of the witnesses’ testimony. Maxwell v. State, 73 S.W.3d

278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

App. 2000). If, as in this case, the trial court makes express findings of fact, we

review the evidence in the light most favorable to the trial court’s ruling and

determine whether the evidence supports the fact findings. Valtierra v. State, 310

S.W.3d 442, 447 (Tex. Crim. App. 2010). We give almost total deference to the

trial court’s determination of historical facts, particularly when the trial court’s fact

findings are based on an evaluation of credibility and demeanor. Id. We will

sustain the trial court’s ruling if it is reasonably supported by the record and is

correct on any theory of law applicable to the case. Id. at 447–48.

                           Motion to Suppress Evidence

      In his sole issue, appellant argues that the trial court erred in denying his

motion to suppress the evidence found in his car because it was obtained as a result

of an illegal and warrantless search.

      The Fourth Amendment of the United States Constitution and Article I,

Section 9 of the Texas Constitution protect against unreasonable searches and

seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; State v. Betts, 397



                                           5
S.W.3d 198, 203 (Tex. Crim. App. 2013). A search conducted without a warrant

issued upon probable cause is per se unreasonable subject to only a few

specifically established and well-delineated exceptions. See Reasor v. State, 12

S.W.3d 813, 817 (Tex. Crim. App. 2000). Here, it is undisputed that appellant’s

car was searched without a warrant.

      In the trial court, appellant moved to suppress the “narcotics and drug related

items” found in his car by Officers Dexter and Sampson. Specifically, Dexter

testified that he seized the following from appellant’s car: (1) “a small baggie

of . . . white powder,” with a “Batman” logo on it; (2) “a scale”; (3) “a small

baggie[,] containing [a large amount of] empty baggies,” also with “Batman” logos

on them; and (4) “a baggie[,] containing more narcotics.” Dexter saw items (1)

through (3) in “plain view” in the car’s center console, and he found item (4) inside

the speaker on the driver’s side floorboard. Additionally, Sampson seized more

“narcotics” from the floorboard speaker on the passenger’s side of the car.

      Initially, we note that Officer Dexter saw the “small baggie of . . . white

powder,” the “scale,” and other “empty baggies” in “plain view.” Contraband seen

in “plain view” may be seized without a warrant. See Texas v. Brown, 460 U.S.

730, 736–39, 103 S. Ct. 1535, 1540–42 (1983). This is because the observation of

evidence located in “plain view” does not constitute a search subject to Fourth

Amendment protection. See Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App.



                                         6
2000); Long v. State, 532 S.W.2d 591, 594 (Tex. Crim. App. 1975); see also Swarb

v. State, 125 S.W.3d 672, 680 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d)

(observation of property in “plain view” involves no invasion of privacy).

      The “plain view” doctrine requires that law enforcement officers: (1) be

legally present when making their observation and (2) have probable cause to

associate any visible evidence with criminal activity. Walter, 28 S.W.3d at 541. A

law enforcement officer need not have actual knowledge that an observed item is

contraband in assessing whether it constitutes evidence of criminal activity, but he

must have probable cause to connect the item with criminal activity. Brown, 460

U.S. at 741–42, 103 S. Ct. at 1543; Joseph v. State, 807 S.W.2d 303, 308 (Tex.

Crim. App. 1991). An officer may use his training and experience in determining

whether an item seen in plain view constitutes contraband. Brown, 460 U.S. at

746, 103 S. Ct. at 1545–46 (Powell, J., concurring) (citing United States v. Cortez,

449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981)); Nichols v. State, 886 S.W.2d 324,

326 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).

      Here, Officer Dexter approached appellant’s car while it was parked in a

public parking lot, and he shone his flashlight into the driver’s side window, while

he remained outside and did not open the car’s doors. In the car’s center console,

Dexter saw, “a small baggie of . . . white powder” with a “Batman logo on it,” “a

scale[,] and a small baggie containing [a large amount of] empty baggies” with



                                         7
“the same Batman logo[s]” on them. Dexter testified that he has received narcotics

training, has come into contact with cocaine “quite a bit,” and has experience with

“these types of drugs.”     He explained that the “white powder” he saw was

“consistent with powder cocaine.” He noted that narcotics dealers use scales to

“break down” cocaine into smaller amounts for sale, and baggies are used to

“package[e] it.” He stated that, generally, a logo on narcotics packaging is used as

“an unofficial trademark for a drug dealer” and the use of “multiple baggies

packaged together” is for selling narcotics.

       Based on the foregoing, the trial court could have reasonably concluded that

Dexter’s “plain view” observation of the evidence located in the center console of

appellant’s car did not constitute a search implicating the Fourth Amendment. See

Swarb, 125 S.W.3d at 680 (“[T]he officers . . . approached appellant’s vehicle in a

parking lot open to the public and shone a flashlight into appellant’s vehicle,

thereby observing the methamphetamine in plain view . . . . Looking inside the

vehicle, even with the use of a flashlight, does not implicate Fourth Amendment

protections . . . .”).

       Following his “plain view” observation of the “white powder” and other

narcotics-related items, Officer Dexter asked appellant for the keys to his car.

After appellant indicated that the keys were on the ground, and Dexter located

them, appellant volunteered, unprompted, that Dexter “could check inside of [the



                                          8
car]” because “there’s nothing inside” of it.         Upon entering the car, Dexter

retrieved the “small baggie of . . . white powder,” the “scale,” and the “small

baggie containing [a large amount of] empty baggies” that he had previously seen.

The “white powder” field-tested positive for cocaine. Dexter also recovered “a

baggie[,] containing more narcotics,” from inside the speaker on the driver’s side

floorboard of the car. And once Officer Sampson arrived at the scene, he found

“additional narcotics” in the floorboard speaker on the passenger’s side of the car.

      Although appellant argues that the officers’ search of his car was illegal

because it was done without a warrant or probable cause, Officer Dexter testified

that appellant voluntarily gave his consent for the search. One of the specifically

established exceptions to the requirements of both a search warrant and probable

cause to search is a search that is conducted pursuant to consent, so long as the

consent is voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 223, 93 S. Ct.

2041, 2043, 2045 (1973); Reasor, 12 S.W.3d at 817. In other words, if consent is

given voluntarily, a search incident to that consent is not unreasonable. Reasor, 12

S.W.3d at 818. Here, appellant has not argued that his consent was involuntary

and the record does not demonstrate that appellant’s consent was anything but

voluntarily given. 2 Accordingly, the trial court could have reasonably concluded


2
      The validity of consent to search is a question of fact to be determined from all the
      circumstances. Ohio v. Robinette, 519 U.S. 33, 40, 117 S. Ct. 417, 421 (1996);
      Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). The State is

                                            9
that appellant’s consent to the search of his car rendered the search valid under the

Fourth Amendment. See Kirsch v. State, 276 S.W.3d 579, 588–89 (Tex. App.—

Houston [1st Dist.] 2008), aff’d, 306 S.W.3d 738 (Tex. Crim. App. 2010).

      Moreover, the trial court could have reasonably concluded that because

Officer Dexter had probable cause to search appellant’s car, a search warrant was

not necessary. Dickey v. State, 96 S.W.3d 610, 612 (Tex. App.—Houston [1st

Dist.] 2002, no pet.) (warrantless search valid, even without consent, when

automobile exception applies). Under the automobile exception to the warrant

requirement, a law enforcement 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 v. State, 898 S.W.2d 821, 827 (Tex. Crim. App.

1994). “Probable cause to search exists when reasonably trustworthy facts and

circumstances within the knowledge of the officer on the scene would lead a man

of reasonable prudence to believe that the instrumentality of a crime or evidence of

a crime will be found.” Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App.

2005).

      Officer Dexter testified that before he searched appellant’s car, he smelled

“the strong odor of marijuana coming from inside th[e] vehicle” and “could smell a


      required to prove the voluntariness of consent by clear and convincing evidence.
      See Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). Here, Officer
      Dexter’s testimony regarding appellant’s consent was not disputed or contradicted.


                                          10
strong odor of marijuana coming from [appellant].” Texas courts, including our

own, have repeatedly held that the smell of marijuana alone is sufficient to

establish probable cause to search a vehicle. See Marsh v. State, 684 S.W.2d 676,

679 (Tex. Crim. App. 1984) (evidence sufficient to establish probable cause for

search when officer smelled marijuana as he approached defendant’s vehicle);

Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. [Panel Op.] 1979) (odor of

marijuana provided probable cause to search defendant’s vehicle); Dickey, 96

S.W.3d at 613–14 (odor of marijuana coming from car alone constitutes probable

cause).   Thus, even without appellant’s consent, the trial court could have

reasonably concluded that because Dexter had probable cause to search appellant’s

car, the search did not violate the Fourth Amendment.

      Accordingly, we hold that the trial court did not err in denying appellant’s

motion to suppress the evidence seized from his car.

      We overrule appellant’s sole issue.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Terry Jennings
                                             Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Do not publish. TEX. R. APP. P. 47.2(b).




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