Opinion issued December 15, 2016




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00588-CR
                           ———————————
                      SEVERINO LS ASUMU, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                On Appeal from the County Court at Law No 3
                          Fort Bend County, Texas
                    Trial Court Case No. 13-CCR-167155


                         MEMORANDUM OPINION

      The State charged Severino Asumu with possession of a controlled
substance, marijuana, weighing two ounces or less. See TEX. HEALTH & SAFETY
CODE ANN. § 481.121 (West 2009). A jury found him guilty, and the trial court
assessed his punishment at 180 days in jail, probated for a period of 9 months, and
100 hours of community service. On appeal, Asumu challenges the trial court’s
(1) denial of his motion to suppress evidence; and (2) admission of three bags of
marijuana into evidence. We affirm.

                                   Background

      After receiving a complaint that marijuana was being consumed on the

premises, Deputy K. Elwood was dispatched to investigate apartment number 505

in an apartment complex in Fort Bend County. As Deputy Elwood approached,

she smelled a strong odor of marijuana coming from apartment 505. She knocked

on the apartment door and heard footsteps going down the stairs.          A voice

exclaimed, “Oh shit; it’s a cop.” Elwood heard footsteps running back upstairs.

      Meanwhile, Asumu exited the apartment through the garage door. Deputy

Elwood confronted him and asked him whether he was a resident of the apartment.

Asumu confirmed that he was a resident and stated that he did not want Deputy

Elwood to search the apartment.       During this encounter, Asumu smelled of

marijuana and had glassy and red eyes.

      When Deputy Elwood asked Asumu who was in the apartment and what he

was doing, Asumu gave multiple contradictory answers. First Asumu claimed that

he could not let Deputy Elwood into his apartment because he was on his way out,

but he later stated that he did not answer the door when Deputy Elwood knocked

because he was asleep.     After Asumu alleged that he had been alone in the

apartment, he acknowledged that his friend Collin was on the couch. As Deputy



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Elwood was asking Asumu questions, Asumu walked back inside the garage and

Deputy Elwood followed him. Once inside the garage, Deputy Elwood could hear

scattered movements that sounded like the knocking over of furniture and the

closing of a door or drawer. Deputy Elwood entered the house, where Asumu and

his guests admitted that they had been smoking marijuana and produced a large

glass water bong and three separate bags of marijuana. Asumu moved to suppress

the evidence of the marijuana. The trial court denied the motion.

      At trial, the State introduced two bags of marijuana, a bag with burnt residue

of marijuana inside a pipe, a glass bong, a bag for the bong, and the envelope that

Deputy Elwood had used to secure the marijuana. Asumu objected that the State

failed to prove that the first three exhibits contained marijuana, and the State

responded with testimony from Deputy Elwood that she was trained to recognize

the scents of fresh marijuana and burned marijuana. The trial court then admitted

these exhibits into evidence.

                                    Discussion

A.    Motion to Suppress

      When a defendant challenges a trial court’s denial of a motion to suppress,

we review the trial court’s ruling for an abuse of discretion. Turrubiate v. State,

399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We defer to the trial court’s

determination of historical facts that depend on credibility and demeanor. Id. We



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review de novo the trial court’s application of the law to the facts if resolution of

those ultimate questions does not turn on the evaluation of credibility and

demeanor. Id. We will uphold 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.”

Turrubiate, 399 S.W.3d at 150.

      The United States and Texas Constitutions protect against unreasonable

searches and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. When law

enforcement does not have a warrant or consent to enter a residence, the search is

presumed unreasonable. See Juarez v. State, 758 S.W.2d 772, 775 (Tex. Crim.

App. 1988). “There is a strong preference for searches to be administered pursuant

to a warrant . . . [a search] without a judicially authorized warrant is presumptively

unreasonable.” Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).

The warrant requirement may be set aside if the State shows that (1) there was

probable cause to enter the home and (2) an exigent circumstance existed that

required entry without a warrant. Id.; Carmen v. State, 358 S.W.3d 285, 292–93

(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). There are three categories of

exigent circumstances: (1) aiding people whom law enforcement officers

reasonably believe require assistance, (2) protecting law enforcement officers from

people reasonably believed to be present, armed, and dangerous, and




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(3) preventing the destruction of evidence or contraband. Gutierrez, 221 S.W.3d at

685; Carmen, 358 S.W.3d at 293.

      In this case, the State relies on the third type of circumstance. To show that

entry was necessary to prevent the destruction of contraband, the primary

consideration is “whether there is proof that the officer reasonably believed that

removal or destruction of evidence was imminent.” Turrubiate, 399 S.W.3d at

153. Courts also consider whether the possessors of the contraband were aware

that police were pursuing them, how readily the contraband could be disposed of,

as well as police familiarity with behavior characteristics of people involved in

narcotics sale and distribution. Id. at 151.

      Asumu does not challenge the presence of exigent circumstances in

connection with the warrantless search, but rather contends that Deputy Elwood

did not have probable cause to enter his apartment and that he did not consent to

her entry. See Gutierrez, 221 S.W.3d at 685 (holding that searches of a residence

without a warrant or consent must be supported by both probable cause and exigent

circumstances). Asumu observes that the only evidence supporting the search was

the smell of marijuana emanating from the apartment and the original dispatch

complaint.

      Deputy Elwood’s observations of the smell of marijuana emanating from the

apartment and then from Asumu, coupled with Asumu’s red, glassy eyes, and his



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multiple contradictory responses to Deputy Elwood’s questions are factors which

the trial court reasonably could have considered in determining that probable cause

existed that illegal activity was taking place within the apartment. We hold that

sufficient evidence supports the trial court’s determination that probable cause

existed to enter the apartment. See Parker v. State, 206 S.W.3d 593, 601 (Tex.

Crim. App. 2006) (holding that tip of underage consumption of alcohol,

exclamation “It’s the police” and footsteps running up the stairs, and officer’s

previous arrest of appellant were sufficient to support probable cause to search

home); Pache v. State, 413 S.W.3d 509, 512 (Tex. App.—Beaumont 2013, no pet.)

(holding that tip that drugs were being sold out of a residence along with odor of

marijuana were sufficient to support probable cause).

B.    Admission of Evidence

      In Asumu’s second challenge, he complains that the trial court abused its

discretion by allowing Deputy Elwood to authenticate three exhibits as marijuana.

The admissibility of evidence is within the discretion of the trial court and will not

be reversed absent an abuse of discretion. Powell v. State, 63 S.W.3d 435, 438

(Tex. Crim. App. 2001); Harnett, 38 S.W.3d at 657; Ventroy, 917 S.W.2d at 422.

If there is evidence supporting the trial court’s decision to admit evidence, there is

no abuse and the appellate court must defer to that decision. Powell, 63 S.W.3d at

438; Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997).



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      It does not take an expert to identify the smell of marijuana smoke. Osbourn

v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). While smelling the odor of

marijuana smoke may not be an event normally encountered in daily life, it

requires limited, if any, expertise to identify. See id. at 534 (police officer

recognized the smell of marijuana emanating from appellant’s car); Kemner v.

State, 589 S.W.2d 403, 407 (Tex. Crim. App. 1979) (airline employee recognized

odor of marijuana emanating from appellant’s suitcase and informed DEA);

Chaires v. State, 480 S.W.2d 196, 198 (Tex. Crim. App. 1972) (airline baggage

agent smelled odor of marijuana in appellant’s suitcase, opened suitcase, and

identified grassy substance it contained as marijuana); Hattersley v. State, 487

S.W.2d 354, 355 (Tex. Crim. App. 1972) (airline employee determined by sight

and smell that appellant’s suitcase contained marijuana); Sorensen v. State, 478

S.W.2d 532, 533 (Tex. Crim. App. 1972) (appellant’s mother testified that she

recognized odor of marijuana when she found it in her son’s room); Mumphrey v.

State, 774 S.W.2d 75, 77 (Tex. App.—Beaumont 1989, pet. ref’d) (13-year-old

rape victim testified that she smelled odor of marijuana on appellant’s clothes).

Although it cannot be presumed that everyone is capable of identifying marijuana

by smell, a witness who has become familiar with the odor of marijuana smoke

through past experience can testify as a lay witness that he or she recognized the

odor. Osbourn, 92 S.W.3d at 537.



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      Asumu argues that because the State failed to show that Deputy Elwood was

an expert in identifying marijuana, her testimony was inadmissible.        Deputy

Elwood testified, however, that she was familiar with the scent of marijuana

through past experience; thus, the trial court did not abuse its discretion in

admitting the exhibits that were authenticated by her testimony. See Osbourn, 92

S.W.3d at 537 (holding that expert testimony is not needed to identify the smell of

marijuana and that a witness who is familiar with the odor of marijuana smoke

through past experiences can testify as a lay witness that he or she was able to

recognize the odor).

                                   Conclusion

      We affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Radack, Jennings, and Bland.

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




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