 AFFIRIVIE1          Opinion       Filed October 31, 2012.




                                                                In The
                                                  Qnnrt of Apticat
                                  FiftI! 1itrirt of                        xu      Lit   tIa1tLu
                                                     No. 05-1 1-00982-CR


                                  CALViN DEWAYNE WILLIAMS, Appellant



                                          THE STATE OF TEXAS, Appellee


                               On Appeal from the 439th Judicial I)istrict Court
                                          Rockwall County, Texas
                                      Trial Court Cause No. 2-10-621


                                                          OPINION
                                      Before Justices Bridges, Richter, and Lang
                                               Opinion By Justice Lang

          Calvin Dewayne Williams appeals the trial court’s judgment convicting him of possession

of marijuana in an amount of fifty pounds or less, but more than five pounds. Williams pleaded

guilty to the offense. The trial court accepted the plea and assessed his punishment at two years of

imprisonment and a $500 fine. In one issue, Williams argues the trial court erred when it denied his

motion to suppress because the police did not have probable cause to search the trunk of his vehicle

without a warrant. We conclude the trial court did not err when it denied Williams’s motion to

suppress. The trial court’s judgment is affirmed.


       The statuto spelling of the substance is “marihuana.” See TEX. HEALTH & SAFETY CODE ANN. 481.002(26). .481 .120---.122 (West
                                                                                                  §
2010): Smith i. Stare. 176 S.W.3d 907.911 n.1 (Fex. App--Dallas 2005, no pet.). The common spelling of the word is “marijuana.” See
Smith. 176 S.W,3d at 911 nI
                     I. FACTUAL ANI) PROCEDURAL BACKGROIJNI)

        Officer Barrett Morris observed a vehicle driving at a high rate of speed. Ftc          “paced”   the

vehicle and determined    it   was going sixty—seven miles—per—hour in a sixty mile—per—hour speed zone.

lie stopped the vehicle and approached        it.   Williams was driving the vehicle and admitted to Officer

Morris that the cruise   control was set at   sixty—five miles—per—hour. During this initial conversation,

Officer Morris detected the odor of marijuana emanating from the vehicle               Also, he observed a

single key in the ignition, and multiple cellular telephones, energy drinks, trash, and random ball

caps in the rear seat of the vehicle. He asked both Williams and Price, a passenger in the vehicle,

about their driving plans and destination. Both Williams and Price stated they were going to a

funeral, but their answers were inconsistent regarding their destination and length of stay. Officer

Morris also observed that Williams and Price were nervous and took extra time to think about their

answers before responding to his questions. When he asked Williams and Price about the odor of

marijuana, they responded that they had been smoking wine-flavored cigars.

        Officer Morris searched the vehicle, including its trunk. Inside the trunk, he found a spare

tire that was the wrong size for the vehicle, dirty. and not useable. lie lifted the tire from the trunk

and it was heavier than a standard air-filled tire. When he rolled the tire back-and-forth along the

pavement, he felt something moving inside the tire. He conducted an echo test and the results were

inconsistent with a standard air-filled tire. Then, he released some air from the tire and detected the

odor of marijuana, so he asked Williams about the contents of the spare tire. After receiving the

warnings pursuant to Miranda, Williams stated the spare tire contained approximately six pounds

of marijuana and that Price did not have any knowledge of the contraband. As a result, Officer

Morris used a blade to open the spare tire and found approximately eleven pounds of marijuana.

       Williams was indicted for possession of marijuana in an amount of fifty pounds or less, but
more than tive pounds. After the trial court denied his motion to suppress the evidence, he pleaded

guilty to the offense. The trial court assessed his punishment at two years of imprisonment and a

$500 fine.

                                   II. MOTION TO SUPPRESS

        In ISSLIe one, Williams argues the trial court erred when it denied his motion to suppress

because the police did not have probable cause to search the trunk ofhis vehicle without a warrant.

He contends that the officer’s observations of inconsistent statements, nervousness, and other “legal

items” in the passenger compartment of the vehicle did not establish probable cause for him to

search the trunk of the vehicle. The State responds that the detection of the odor of marijuana

emanating from Williams’s vehicle provided sufficient probable cause for the officer to conduct a

warrantless search of all areas of the vehicle that were capable of containing marijuana, including

the tnmk.

                                      A. Standard ofReview

        A bifurcated standard of review is applied to a trial court’s ruling on a motion to suppress

evidence. This standard requires an appellate court to give almost total deference to a trial court’s

determination ofhistorical facts and applies a de novo review ofa trial court’s application ofthe law

to those facts. See Hubert v. State, 312 S.W.3d 554,559 (rex. Crim. App. 2010). A trial court is

the sole trier of fact, and the judge of witness credibility and the weight to be given to their

testimony. See Valtierra v. State, 310 S.W.3d 442,447 (Tex. Crim. App. 2010); St. George it. State,

237 S.W.3d 720,725 (rex. Crim. App. 2007).

       When the trial court makes explicit findings of fact, an appellate court determines whether

the evidence, viewed in the light most favorable to the rulin& supports those finding& State v. Kelly,

204 S.W.3d 808,818 (Tex. Crim. App. 2006). Then, the appellate court reviews the trial court’s




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legal conclusions de novo and upholds the ruling so long as it is supported by the record and correct

under any legal theory applicable to the case.    State i.   Iduarte, 268 S.W.3d 544, 548 (Tex. Corn.

App. 008): Banda r. Stare, 317 S.W.3d 903. 907—0$ (Tex. App.-— Houston [14th Dist.] 2010. no

pet.).

                                          B. Applicable Lan’

         The Fourth Amendment to the United States Constitution and Article I, section 9, of the

Texas Constitution guarantee the right to be secure against unreasonable searches. U.S. C0NsT.

amend. IV; TEX, C0NsT. art. 1,   § 9. Article 38.23 of the Texas Code of Criminal Procedure forbids
the admission of evidence seized by any person or officer when that evidence has been obtained in

violation of the flderaI or state constitutions or in violation of federal and state laws. SeeTEx. Cont

CRIM.    PROC. ANN. art. 38.23 (West 2005); Krause v. State, 243 S.W.3d 95. 103 (Tex.

App.----- Houston [1st Dist.j 2007, pet. refd).

         There is a strong preference fir searches to be administered pursuant to a warrant. Guitierre.

v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). Under the Fourth Amendment, a search

conducted without a warrant issued on probable cause is per se unreasonable, unless it falls within

one of the well-established exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412

U.S. 218, 219 (1973); Guitierrez, 221 S.W.3d at 685; Reasor v. State, 12 S.W.3d 813, 817 (Tex.

Crim. App. 2000).

         Under the automobile exception, a warrantless search of the vehicle is proper if the vehicle

is readily mobile and there is probable cause to believe the vehicle contains evidence of a crime. See

Pennsylvania v. Labron, 518 U.S. 938,940(1996); Keehu v. State, 279 S.W.3d 330, 335 (Tex. Crirn.

App. 2009). The legal determination of probable cause is based on the totality of the circumstances

and practical common sense. See Illinois v. Gates, 462 U.S. 213, 23 1—39 (1983). There is no




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all—encompassing definition of probable cause because it is a fluid concept “turning on the

assessment of probabilities in particular flictual contexts.”     alL’s, 462 (iS. at 232. Probable cause

amounts to reasonably trustworthy facts and circumstances within the officers knowledge that

would lead a person of reasonable prudence to believe that evidence of a crime will he found.

Guuierr’z. 221 S.W.3d at 685.

        It is well-settled that the odor of marijuana is sufficient to constitute probable cause to search

an automobile. See e.g.. Marsh r. State, 64 S.W.2d 676, 679 (Tex. (‘rim. App. 1984); Razo               V.


Slate, 577 S.W.2d 709, 711 (Tex. Crim. App.[ Panel Op.) 1979); Isarn v. State, 582 S.W.2d 441,444

(Tex. Crim. App. [Panel    Op.)   1979). “If probable cause justifies the search of a lawfully stopped

vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object

of the search.” United States v. Ross, 456 U.S. 798, 825 (1982).

                               C’. Apphcatwn oft/ic’ Law to the Facts

        The trial court issued findings of fact and conclusions of law. Williams does not argue the

evidence fails to support the trial   court’s   findings of fact. He argues only that the facts were not

sufficient to give the officer probable cause to search the trunk of his vehicle. The trial court

specifically found that “Officer Morris immediately detected the odor of marijuana emanating from

the vehicle during his initial conversation with the occupants and immediately called for a back-up

officer.” Having found the officer’s testimony credible that he smelled marijuana emanating fi’om

the Williams’s vehicle, the trial court appropriately concluded that “The odor of marihuana gave

Officer Morris probable cause to search the vehicle including the trunk and anything that could store

marihuana.” See e.g., Ross, 456 U.S. at 825,’ /t’[arsh, 684 S.W.2d at 679; Razo, 577 S.W.2d at 711;

Isam, 582 S.W.2d at 444. Accordingly, we conclude the trial court did not err when it denied

Williams’s motion to suppress.
       Issue one is decided against Williams.

                                      III. CONCLUSION

       The trial court did not err when it denied Wi1liamss motion to suppress.

       The trial court’s judgment is affirmed.


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                                                       DOUGLAS S. LANG
                                                       J USTIC,1E

Do Not Publish
Tix. R. Apr. P. 47
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                                  1uitrt nf Apprals
                        .!Fiftti Jitrict uf   xai at t1at1a

                                        JUDGMENT
CALVIN DEWAYNE WILLIAMS.                               Appeal from the 439th Judicial District
Appellant                                              Court of Rockwall County, Texas.
                                                       (TrCt.No. 2-10-621).
No. 05-I 1-00082-CR           V.                       Opinion delivered by Justice Lang. Justices
                                                       Bridges and Richter participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s   opinion of this   (late, the judgment of the trial court is AFFIRMED.




Judgment entered October 3 1, 2012.


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                                                       DOUGLAS/S LANG
                                                       JUST1CE
