                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00061-CR



       ELKIN MARTINEZ-CORNELIO, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



      On Appeal from the County Court at Law No. 1
                  Smith County, Texas
             Trial Court No. 001-80114-19




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Stevens
                                         MEMORANDUM OPINION
            After the trial court overruled his suppression motion, Elkin Martinez-Cornelio pled guilty

to and was convicted of possession of less than twenty-eight grams of alprazolam, a penalty

group 3 controlled substance. 1 See TEX. HEALTH & SAFETY CODE ANN. § 481.117. Under the

terms of his plea bargain, Martinez-Cornelio was sentenced to eighty-five days’ confinement in

county jail. 2

            On appeal, Martinez-Cornelio argues that the trial court erred in overruling his motion to

suppress the evidence because it was obtained as a result of an illegal detention and search. 3

Because we find that the officers had probable cause to conduct the search incident to arrest, we

overrule Martinez-Cornelio’s sole point of error and affirm the trial court’s judgment.

I.          Standard of Review

            “We review a trial court’s ruling on a motion to suppress under a bifurcated standard of

review.” Dansby v. State, 530 S.W.3d 213, 220 (Tex. App.—Tyler 2017, pet. ref’d) (citing Hubert

v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Carmouche v. State, 10 S.W.3d 323, 327

(Tex. Crim. App. 2000)). “A trial court’s decision to grant or deny a motion to suppress is

generally reviewed under an abuse of discretion standard.” Id. (citing Shepherd v. State, 273

S.W.3d 681, 684 (Tex. Crim. App. 2008)). “We give almost total deference to a trial court’s


1
In companion case number 06-19-00062-CR, Cornelio appeals his conviction for possession of a useable quantity of
marihuana in an amount less than two ounces.
2
    The trial court certified that Martinez-Cornelio had the right to appeal the ruling on his motion to suppress.
3
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of
the Twelfth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

                                                              2
determination of historical facts, especially if those determinations turn on witness credibility or

demeanor, and review de novo the trial court’s application of the law to facts not based on an

evaluation of credibility and demeanor.” Id. (citing Neal v. State, 256 S.W.3d 264, 281 (Tex.

Crim. App. 2008)). “When deciding a motion to suppress evidence, a trial court is the exclusive

trier of fact and judge of the witnesses’ credibility.” Id. (citing Maxwell v. State, 73 S.W.3d 278,

281 (Tex. Crim. App. 2002)). “Accordingly, a trial court may choose to believe or disbelieve all

or any part of a witness’s testimony.” Id. (citing State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

App. 2000)).

            “When a trial court does not make express findings of fact, we view the evidence in the

light most favorable to the trial court’s ruling and assume the trial court made implicit findings of

fact that support its ruling as long as those findings are supported by the record.” 4 Id. (citing Lujan

v. State, 331 S.W.3d 768, 771 (Tex. Crim. App. 2011) (per curiam)). “Therefore, the prevailing

party is entitled to ‘the strongest legitimate view of the evidence and all reasonable inferences that

may be drawn from that evidence.’” Id. (quoting State v. Castleberry, 332 S.W.3d 460, 465 (Tex.

Crim. App. 2011)).

            “When all evidence is viewed in the light most favorable to the trial court’s ruling, an

appellate court is obligated to uphold the ruling on a motion to suppress if that ruling was supported

by the record and was correct under any theory of law applicable to the case.” Id. (citing Ross, 32

S.W.3d at 856; Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim.




4
    The trial court denied Martinez-Cornelio’s requests for findings of fact and conclusions of law.

                                                             3
App. 1999)). “Because the trial court in this case did not make express findings, we view the

evidence in the light most favorable to the trial court’s ruling and assume it made implicit findings

that support its ruling as long as the record supports those findings.” Id. (citing Lujan, 331 S.W.3d

at 771).

II.    Evidence Presented at the Suppression Hearing

       Amber Thomas, an officer with the Tyler Police Department, testified that she saw

Martinez-Cornelio as he was walking down Hillsboro Street, which did not have a sidewalk,

“[w]ith his back to traffic.” Thomas said she decided to stop Martinez-Cornelio because he was

walking “in the street” on the wrong side of the road according to Section 552.006 of the Texas

Transportation Code, which was introduced into evidence and reads:

              (a)     A pedestrian may not walk along and on a roadway if an adjacent
       sidewalk is provided and is accessible to the pedestrian.

             (b)      If a sidewalk is not provided, a pedestrian walking along and on a
       highway shall if possible walk on:

                       (1)     the left side of the roadway; or

                       (2)     the shoulder of the highway facing oncoming traffic.

TEX. TRANSP. CODE ANN. § 552.006. Under Section 552.006, the term “[h]ighway” “means the

width between the boundary lines of a publicly maintained way any part of which is open to the

public for vehicular travel.” TEX. TRANSP. CODE ANN. § 541.302(5); see State v. Patterson, 291




                                                 4
S.W.3d 121, 122 (Tex. App.—Amarillo 2009, no pet.). Thomas clarified that a violation of Section

552.006 is a Class C misdemeanor. 5

           Thomas testified that Hillsboro Street abuts Douglas Elementary School and, by the time

she turned her patrol unit around to make the stop, Martinez-Cornelio was in the school parking

lot. Thomas noticed that he was by the school’s trash can and appeared to throw something away

before walking away from the patrol unit as it approached him. When Thomas first tried to detain

him, Martinez-Cornelio kept walking away until she ordered him to stop. Thomas described

Martinez-Cornelio as panicked and “shifty” with “squinty and glassy” eyes and the strong smell

of marihuana on his person. Based on the odor of marihuana, Thomas believed that Martinez-

Cornelio had contraband in his possession and concluded she had probable cause to conduct a

search of his pockets, revealing .37 ounces of marihuana and alprazolam. Thomas also said that

exigent circumstances existed to search Martinez-Cornelio in the absence of a warrant because

drugs are easily disposable.

           Kenneth Caudle, another Tyler Police Department officer, was with Thomas when

Martinez-Cornelio was stopped. According to Caudle, Martinez-Cornelio appeared as if he

wanted to run from Thomas. Caudle also confirmed that he witnessed the violation of Section

552.006 of the Texas Transportation Code and that Martinez-Cornelio smelled strongly of

marihuana and exhibited signs of intoxication.




5
    See TEX. TRANSP. CODE ANN. § 542.301.

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III.   The Trial Court’s Denial of the Suppression Motion Was Proper

       Martinez-Cornelio argues that the trial court erred in overruling his motion to suppress the

evidence as a result of an illegal search because the smell of marihuana did not create probable

cause for the search and there were no exigent circumstances justifying the search. Martinez-

Cornelio does not directly question the lawfulness of his seizure on appeal, but we must address it

because we find that this search was incident to a lawful arrest.

       “The initial burden of proof on a motion to suppress evidence on the basis of a Fourth

Amendment violation rests with the defendant.” Dansby, 530 S.W.3d at 220 (citing Torres v.

State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005)). “The defendant meets this burden by

demonstrating that the seizure occurred without a warrant.” Id. Here, the State stipulated to the

fact of the warrantless arrest. As a result, the burden shifted “to the [S]tate to prove the

reasonableness of the warrantless seizure.” Id.

       “Reasonable suspicion to detain a person exists when a police officer has ‘specific,

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

reasonably conclude that the person detained is, has been, or soon will be engaged in criminal

activity.’” Furr v. State, 499 S.W.3d 872, 878 (Tex. Crim. App. 2016) (quoting Wade v. State,

422 S.W.3d 661, 668 (Tex. Crim. App. 2013)). “While ‘reasonable suspicion’ is a less demanding

standard than probable cause and requires a showing considerably less than preponderance of the

evidence, the Fourth Amendment requires at least a minimal level of objective justification for

making the stop.” Id. (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). If an officer has a

reasonable basis for suspecting that a person has committed a violation of the Texas Transportation

                                                  6
Code, the officer may legally initiate an investigative detention. See Johnson v. State, 365 S.W.3d

484, 488–89 (Tex. App.—Tyler 2012, no pet.) (citing Powell v. State, 5 S.W.3d at 376 (Tex.

App.—Texarkana 1999, pet. ref’d); Drago v. State, 553 S.W.2d 375, 377–78 (Tex. Crim. App.

1977)).

          Thomas and Caudle both testified that they attempted an investigative detention of

Martinez-Cornelio after they witnessed him walking on the wrong side of a road abutting a public

school. The investigative detention was soon elevated to an arrest. “[A] Fourth Amendment

seizure occurs when there is application of physical force or, where such is absent, a submission

to an assertion of authority.” Furr, 499 S.W.3d at 877–78. After his initial attempt to walk away,

Martinez-Cornelio was seized when he submitted to Thomas’ request to stop after she identified

herself as a police officer. 6

          “The [S]tate may satisfy [its] burden by showing that one of the statutory exceptions to the

warrant requirement is met.” Dansby, 530 S.W.3d at 220. “A police officer may arrest an

individual without a warrant only if (1) there is probable cause with respect to that individual, and

(2) the arrest falls within one of the exceptions specified in articles 14.01 through 14.04 of the code

of criminal procedure.” Id. (citing Stull v. State, 772 S.W.2d 449, 451 (Tex. Crim. App. 1989)).



6
 At the suppression hearing, Thomas testified that Martinez-Cornelio was not under arrest at the time of the search.
Martinez-Cornelio was instructed to stop when he initially walked away from the patrol unit. On a recording from
the dash camera of the police car, after he was stopped, Martinez-Cornelio appeared to walk away a second time until
Caudle motioned for him to return. He later asked if he was free to leave and was made to stay. Martinez-Cornelio
was handcuffed prior to the search. “The test to determine whether a person has been detained is objective and does
not rely on the subjective belief of the detainee or the police.” Furr, 499 S.W.3d at 878. “An arrest occurs when a
person’s liberty of movement is restricted or restrained.” Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App.
1991).

                                                         7
       Probable cause “exists if, at the moment the arrest is made, the facts and circumstances

within the arresting officer’s knowledge, and of which he has reasonably trustworthy information,

are sufficient to warrant a prudent man in believing that the person arrested had committed or was

committing an offense.” Id. at 220–21 (citing Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim.

App. 2009)). “The test for probable cause is an objective one, unrelated to the arresting officer’s

subjective beliefs, and requires a consideration of the totality of the circumstances facing the

arresting officer.” Id. at 221. “A finding of probable cause requires more than bare suspicion, but

less than would justify conviction.” Id.

       Thomas’ and Caudle’s testimony showed that Martinez-Cornelio violated Section 552.006

of the Texas Transportation Code, a Class C misdemeanor. This gave them probable cause to

arrest Martinez-Cornelio. See McBride v. State, 359 S.W.3d 683, 693 (Tex. App.—Houston [14th

Dist.] 2011, pet. ref’d) (finding officer had probable cause to arrest defendant for walking on the

wrong side of the street in violation of Section 552.006 of the Texas Transportation Code);

Patterson, 291 S.W.3d at 123 (concluding that officer had reasonable suspicion to detain a

pedestrian walking with his back to traffic because it was a traffic violation under Section

552.006). Because “[a] peace officer may arrest an offender without a warrant for any offense

committed in his presence or within his view,” the State met its burden to prove an exception to

the warrant requirement. TEX. CODE CRIM. PROC. ANN. art. 14.01(b).

       After Martinez-Cornelio was ordered to stop, Thomas and Caudle smelled marihuana on

him and noticed that he exhibited signs of intoxication. Thomas testified that the smell of

marihuana was so strong that it led her to believe Martinez-Cornelio was in possession of

                                                8
contraband. The recording of the arrest showed that Martinez-Cornelio was the only person in the

area. As a result, the trial court correctly determined that Thomas and Caudle, based on the totality

of the circumstances, had probable cause to search Martinez-Cornelio for drugs after he had

already been arrested. See Deleon v. State, 530 S.W.3d 207, 211 (Tex. App.—Eastland 2017, pet.

ref’d) (“[M]arihuana odor alone can provide sufficient probable cause for a warrantless search of

one’s person or vehicle.”); Hitchcock v. State, 118 S.W.3d 844, 851 (Tex. App.—Texarkana 2003,

pet. ref’d) (“[T]he odor of marihuana [is] sufficient to constitute probable cause to search a

defendant’s person . . . [and] the need for preservation of evidence [i]s considerable.”) (citations

omitted)).

       We find that Martinez-Cornelio had already been arrested, the search was conducted after

officers obtained probable cause of a new offense, and the search was lawful because an

established exception to the warrant requirement is a search incident to arrest. See State v. Sanchez,

538 S.W.3d 545, 551 (Tex. Crim. App. 2017) (“As long as there is probable cause to arrest for the

newly-discovered offense, and the search occurs close in time to the defendant’s formal [initial]

arrest, an officer may conduct a search incident to arrest on the basis of an offense discovered after

formal arrest for a different crime.”); State v. Rodriguez, 521 S.W.3d 1, 10 (Tex. Crim. App. 2017).

As a result, the trial court did not err in finding the search leading to the discovery of alprazolam

and marihuana lawful and overruling the suppression motion.

       We overrule Martinez-Cornelio’s sole point of error.




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IV.   Conclusion

      We affirm the trial court’s judgment.




                                              Scott E. Stevens
                                              Justice

Date Submitted:      October 3, 2019
Date Decided:        October 4, 2019

Do Not Publish




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