Opinion issued May 21, 2015




                                    In The

                              Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-13-00552-CR
                          ———————————
                        IRIRIAN SALINAS, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


         On Appeal from the County Criminal Court at Law No. 14
                          Harris County, Texas
                      Trial Court Case No. 1854915


                         MEMORANDUM OPINION

      Appellant Iririan Salinas pleaded guilty to possession of marihuana and

appeals here, challenging (1) the trial court’s denial of his motion to suppress

evidence and (2) the evidence of probable cause to arrest him for possession of

marihuana. We affirm.
                                     Background

      Appellant was charged with misdemeanor possession of less than two

ounces of marihuana, enhanced by a prior conviction for possession of marihuana.

Appellant filed a pre-trial motion to suppress evidence, arguing that the “evidence

seized in connection with this case, including but not limited to Marihuana, was

seized without warrant, probable cause or other lawful authority in violation of”

appellant’s constitutional rights.

      No hearing was held on the motion to suppress, which was decided by the

trial court on competing affidavits. Appellant’s affidavit in support of his motion

to suppress averred:

              On October 4, 2012 at approximately 4 PM I was visiting with
      some friends at 15217 Buckle Ln., Houston, Texas 77060. I do not
      live at this location. While I was sitting in my vehicle at this location
      waiting on my friend a police patrol vehicle all of a sudden pulled in
      directly behind my vehicle blocking me in. They proceeded to get out
      of their vehicle with their guns drawn, ordered me to get out of my
      vehicle and quickly placed me in handcuffs. One of the officers
      entered the residence and came back out and told me that they had
      received a call from an unknown caller saying that a juvenile was
      being sexually assaulted at this location. There were not any juveniles
      at this location and the officers did not locate any.
             The officers did not inform me as to whether the unknown
      caller ever gave a description that was similar to my features and my
      attorney has informed me that the State’s offense report does not
      contain any information regarding the suspect’s description, no
      description of the juvenile, no description as to how the sexual assault
      was taking place and that the identity of the unknown caller remains
      unknown.


                                         2
            The officers then began to search the outside premises of the
      residence and located a small amount of marihuana on the front porch.
      The officers insisted that the marihuana was mine against my denials.

      Officer R. Ramirez’s affidavit stated the following, in relevant part, in

support of the legality of the seizure of evidence:

             I received training at the academy on controlled substances.
      When I was trained on marihuana, the instructor burned marihuana so
      that officers would have the necessary knowledge and skills to quickly
      determine the smell of marihuana. I have also been involved in the
      arrest of numerous possessions of marihuana cases. I have testified in
      4 cases.
           I am writing this affidavit in response to the Defendant’s
      Motion to Suppress in Cause No. 1854915.
             The facts are as follows:
            On or about October 4, 2012, a male, IRIRIAN SALINAS . . .
      was arrested and charged for being in possession of marihuana.
             My partner Officer Calhoun and I were dispatched to
      investigate a sexual assault of a juvenile. Pursuant to the call slip we
      were looking for a red truck at 15217 Buckle Houston, Texas located
      within Harris County, Texas. We were told that the juvenile was in or
      near the red truck at the same address.
            We approached the address and noticed a red truck fitting the
      description from the call. I approached the vehicle on the driver’s side
      of the truck. I saw the Defendant, IRIRIAN SALINAS, who fit the
      description of the suspect, sitting in the driver’s side of the vehicle as I
      approached the vehicle.
             I asked IRIRIAN SALINAS to step out of the truck, in order to
      make sure the juvenile was not in the truck bed or the back cabin. I
      smelled the strong smell of marihuana coming from IRIRIAN
      SALINAS and inside of the truck. IRIRIAN SALINAS got out of the
      truck and left the doors wide open.
            I looked inside the vehicle from the drive way and I saw in
      plain view hanging from the visor a clear plastic bag of marihuana.


                                           3
      Due to my training and years of experience as a peace officer, I knew
      the substance to be marihuana.
             I confiscated the marihuana and placed IRIRIAN SALINAS in
      handcuffs. Gave the marihuana to my partner, Officer Calhoun and
      then completed my investigation as to the sexual assault of the
      juvenile. No juvenile was found on the premises and concluded that
      that no sexual assault had occurred. IRIRIAN SALINAS was arrested
      for possession of marihuana.

      The trial court denied the motion to suppress, appellant pleaded guilty, and

the court certified his right to appeal “those matters that were raised by written

motions filed and ruled on before trial.” TEX. R. APP. P. 25.2(2)(A).

                              ISSUES ON APPEAL

      Appellant raises the following two issues:

         (1)    “Whether the trial court abused its discretion and erred in
                denying Defendant’s pre-trial and trial Motions to Suppress
                Evidence and allowing evidence obtained during the arrest
                of appellant, Mr. Iririan Salinas, to be used against him in
                trial court.”

         (2)    “The evidence is insufficient to prove adequate probable
                cause for arrest of Appellant for knowing possession of
                marijuana.”

                            MOTION TO SUPPRESS

      Appellant argues that the trial court erred in denying his motion to suppress

the marihuana seized. He notes that, based on Ramirez’s affidavit, it is clear that

“Ramirez failed to obtain any additional information or evidence to support the

reliability of the anonymous tip.” Appellant complains that the “only information

[Ramirez] was given was that a red vehicle was involved” and that “nothing within

                                         4
the record indicate[s] any detailed description of either the vehicle or the Appellant

were provided by the anonymous caller.”          Because Ramirez failed to obtain

consent to search appellant’s truck, and because his “actions in Appellant’s case

were based on nothing more than a subjective hunch,” appellant contends that any

fruits of the unlawful search of his truck in violation of his constitution rights

should be suppressed.

       The State responds that appellant’s encounter with Officer Ramirez was

consensual.   Because “an officer does not need probable cause or reasonable

suspicion to initiate a consensual encounter,” the State contends that appellant’s

constitutional rights were not implicated.

A.     Applicable Law and Standard of Review

       A trial court may rule on a motion to suppress solely on the basis of

opposing affidavits from the defendant and the State. Manzi v. State, 88 S.W.3d

240, 241 (Tex. Crim. App. 2002) (citing TEX. CODE CRIM. PROC. 28.01 §1(6)

(West 2006)). This Court is to give deference to the trial court’s determination of

historical facts, even if “credibility and demeanor considerations” are absent. Id. at

243.

       If the district court’s account of the evidence is plausible in light of
       the record viewed in its entirety, the court of appeals may not reverse
       it even though convinced that had it been sitting as trier of fact, it
       would have weighed the evidence differently. Where there are two
       permissible views of the evidence, the factfinder’s choice between
       them cannot be clearly erroneous. This is so even when the district

                                             5
      court’s findings do not rest on credibility determinations, but are
      based instead on physical or documentary evidence or inferences
      from other facts.

Id. at 243 (quoting Anderson v. City of Bessemer City, North Carolina, 470 U.S.

564, 573–74 (1985)(emphasis in original)).       When a motion to suppress is

determined solely on affidavits, we review “de novo the court’s application of the

law to the facts.” Benjamin v. State, No. 01-10-00066-CR, 2011 WL 1233512, at

*3 (Tex. App.—Houston [1st Dist.] March 31, 2011, pet. ref’d) (mem. op.; not

designated for publication) (citing Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim.

App. 2007)). And we “must uphold the trial court’s ruling if it is supported by the

record and correct under any theory of law applicable to the case.” Id. (citing

Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003)).

B.    Analysis

      “The Fourth Amendment of the U.S. Constitution and Article I, Section 9, of

the Texas Constitution protect individuals from unreasonable searches and

seizures.” Ex Parte Moore, 395 S.W.3d 152, 158 (Tex. Crim. App. 2013) (citing

Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App.1993)). “A valid

warrant based on probable cause is necessary to conduct a search unless one of the

many exceptions to the warrant requirement is appropriate under the

circumstances.” Joseph v. State, 807 S.W.2d 303, 307 (Tex. Crim. App. 1991).

Officer R. Ramirez’s affidavit states that he saw “in plain view hanging from the


                                         6
visor a clear plastic bag of marihuana.” Under the plain view exception to the

warrant requirement, “[a] seizure of an object is lawful” if: “First, law enforcement

officials must lawfully be where the object can be ‘plainly viewed.’ Second, the

‘incriminating character’ of the object in plain view must be ‘immediately

apparent’ to the officials. And third, the officials must have the right to access the

object.” Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009). Under the

“automobile exception” law enforcement officials “may conduct a warrantless

search of a vehicle if it is readily mobile and there is probable cause to believe that

it contains contraband.” Id. at 335. The Court of Criminal Appeals has held that

the automobile exception applies when a car is in a private driveway. Id.

      Officer Ramirez had the requisite training and experience to recognize the

contraband hanging in plain view from the visor. The trial court thus could have

determined—relying on Officer Ramirez’s affidavit and rejecting appellant’s

affidavit—that the automobile exception applied here to justify seizing the

marihuana in plain view in appellant’s automobile.

      We overrule appellant’s first issue.

                         SUFFICIENCY OF THE EVIDENCE

      In his second issue, appellant complains that “the evidence is insufficient to

show adequate probable cause for an arrest of knowing possession of marihuana.”

While he couches this issue in terms of probable cause for arrest, his actual


                                          7
argument focuses exclusively on the sufficiency of the evidence to support a

conviction for possession of marihuana. Specifically, he challenges whether the

State proved, beyond a reasonable doubt, that he “exercised control, management,

or care of the substance” and that he “knew that the substance possessed was

contraband.” Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).

      We do not address this argument as appellant pleaded guilty, reserving only

the right to appeal “those matters that were raised by written motions filed and

ruled on before trial.” TEX. R. APP. P. 25.2(2)(A).

      We overrule appellant’s second issue.

                                 CONCLUSION

      We affirm the trial court’s judgment.




                                               Sherry Radack
                                               Chief Justice

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

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



                                           8
