                                 MEMORANDUM OPINION
                                         No. 04-10-00540-CR

                                      Christopher Ray CLARK,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 379th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008CR5773
                              Honorable Ron Rangel, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: July 25, 2012

AFFIRMED

           A jury convicted Christopher Ray Clark of two counts of possession with intent to deliver

cocaine. On appeal, Clark complains the trial court erred in denying his motion to suppress

evidence and in disallowing expert witness testimony. We affirm.

                                            BACKGROUND

           In January 2008, Clark was a student at the University of Texas at San Antonio. He was

living in apartments operated by the university. Clark shared a four-bedroom apartment with his
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brother, Matthew Clark, and two other students. Clark’s apartment was located on the second

story of the building. On January 25, 2008, university police conducted a warrantless search of

Clark’s bedroom, where they found cocaine, a handgun, ammunition, a stun gun, and $517.00 in

cash. Clark was indicted for two counts of possession with intent to deliver cocaine, and pleaded

not guilty. Clark filed a motion to suppress the evidence obtained in the search.

       At the suppression hearing, the State called Officer Matthew Stacy to testify. Officer

Stacy testified that in January 2008 he was employed as a University of Texas at San Antonio

police officer. On January 25, 2008, Officer Stacy was on foot patrol at the student apartments

where Clark resided. While walking on the ground floor in a common area outside of an

apartment building, Officer Stacy smelled the odor of burnt marijuana. Officer Stacy was able to

discern the source of the odor based on the strength of the odor, and signs of activity from inside

one of the apartments on the second floor. Officer Stacy walked up the stairs toward this

apartment. When Officer Stacy reached the top of the stairs and started approaching the

apartment door, the door opened and two men appeared in the doorway, apparently ready to

leave. As the door opened, the odor of marijuana emanated from inside the apartment, and it was

very strong. Because the door was open, Officer Stacy was able to see inside the apartment.

About five feet inside of the doorway, Officer Stacy saw “loose marijuana, seeds and stems,” a

“half-smoked marijuana blunt,” and a baggy which he believed to contain marijuana on the top

of a coffee table. Two people were seated on a couch near the coffee table. Officer Stacy entered

the apartment and pulled the coffee table away from the couch. Officer Stacy instructed the two

men who were leaving the apartment to sit down. He then called additional officers to the scene.

       When the additional officers arrived, Officer Stacy conducted a protective sweep of the

apartment. In Clark’s bedroom, Officer Stacy saw a digital scale and a box of sandwich bags on



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the desk, and a lockbox beside the desk. Officer Stacy asked Clark for consent to search his

bedroom. Clark did not refuse, but stated that he would like to talk to his father.

       While Officer Stacy was leaving the apartment to begin the process of obtaining a search

warrant, Clark’s mother and father arrived on the scene. Officer Stacy allowed Clark to talk to

his father. After talking to his father, Clark told Officer Stacy he was “okay” with going ahead

with the search. Clark then read and signed a document giving the officers consent to search his

bedroom. During the search, Officer Stacy asked Clark what was in the lockbox, and Clark told

him it contained cash. Clark then went to the living room, brought back a key, and opened the

lockbox. Clark also told Officer Stacy there was a handgun and cocaine in his desk drawer. In

searching Clark’s bedroom, Officer Stacy found cocaine, a handgun, ammunition, a stun gun,

and $517.00 in cash.

       The defense called witnesses to testify, including Clark and three of his family members.

Clark testified Officer Stacy asked him for consent to search his bedroom two or three times;

however, he never gave the officers verbal consent to search his bedroom. Clark acknowledged

that he talked to his father at the scene and that his father tried to persuade him to consent to the

search. According to Clark, he and his father argued about whether he should give the officer

consent to search his bedroom. Clark pleaded with his father not to give the officer consent.

Nevertheless, Clark’s father gave Officer Stacy verbal consent to search the bedroom. Clark did

not dispute that he read and signed the consent to search form; however, Clark indicated he did

so only after the search was underway, and only because the officers told him that he had to sign

it because his father had already given consent to search.

       Consistent with Clark’s testimony, Clark’s father and mother testified that Clark’s father,

not Clark, gave Officer Stacy verbal consent to search Clark’s bedroom.



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       Clark’s brother, Matthew, testified that he, not Clark, gave the officer the key to the

lockbox. Matthew testified that the lockbox which contained the $517.00 in cash belonged to

him rather than to Clark. Matthew testified he heard Clark repeatedly tell the officers he was not

going to let them search his bedroom. And, according to Matthew, Clark did not sign the consent

form until after the search was completed, and the officers told Clark he had to sign the consent

to search form.

       Similarly, Fabian Rocha, a friend of Clark’s who was present during the search, testified

the officers told Clark he had to sign the consent to search form. Rocha further testified that he

heard Clark tell the officers, “You can’t search my room.”

       The trial court denied the motion to suppress. No findings of fact were filed. The case

was subsequently tried to a jury. The suppression issues were re-litigated at trial. The jury found

Clark guilty as charged in the indictment and assessed punishment at five years’ confinement. In

accordance with the jury’s punishment recommendation, the trial court suspended the sentence

and placed Clark on five years’ community supervision. Clark appealed.

                                       MOTION TO SUPPRESS

       A. Standard and Scope of Review

       We review the trial court’s denial of a motion to suppress under a bifurcated standard of

review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997). First, we afford almost total deference to a trial court’s

determination of historical facts. Valtierra, 310 S.W.3d at 447; Guzman, 955 S.W.2d at 89. The

trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be

given their testimony. Valtierra, 310 S.W.3d at 447; State v. Ross, 32 S.W.3d 853, 855 (Tex.

Crim. App. 2000). The trial court, which has the opportunity to observe a witness’s demeanor



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and appearance, is entitled to believe or disbelieve all or part of a witness’s testimony. Valtierra,

310 S.W.3d at 447; Ross, 32 S.W.3d at 855. When no findings of fact are filed, we view the

evidence in the light most favorable to the trial court’s ruling, and assume that the trial court

made implicit findings of fact that support its ruling, provided those findings are supported by

the record. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007); Ross, 32 S.W.3d at

855. Second, we review a trial court’s application of the law of search and seizure to the facts de

novo. Valtierra, 310 S.W.3d at 447; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

We sustain the trial court’s ruling if that ruling is “reasonably supported by the record and is

correct on any theory of law applicable to the case.” Valtierra, 310 S.W.3d at 447-48; State v.

Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

       Generally, we limit the scope of our review to the evidence adduced at the suppression

hearing. Gutierrez, 221 S.W.3d at 687. However, when the parties subsequently re-litigate the

suppression issues at the trial on the merits, we consider the evidence adduced at the suppression

hearing as well as the evidence adduced at trial in our review of the trial court’s ruling. Id.;

Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).

       B. Probable Cause to Enter the Apartment

       In his third issue, Clark argues there was no probable cause for Officer Stacy to enter his

apartment. An unconsented police entry into a residential unit constitutes a search. McNairy v.

State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991) (citing Katz v. United States, 389 U.S. 347

(1967)). In order for a warrantless search to be justified, the State must show the existence of

probable cause at the time the search was made, and the existence of exigent circumstances

which made the procurement of a warrant impracticable. Gutierrez, 221 S.W.3d at 685; id.

Probable cause to search exists when reasonably trustworthy facts and circumstances within the



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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. Gutierrez, 221 S.W.3d at

685; McNairy, 835 S.W.2d at 106. One category of exigent circumstances that justifies a

warrantless intrusion by police officers is preventing the destruction of evidence or contraband.

Gutierrez, 221 S.W.3d at 685.

       In the present case, Clark challenges the existence of probable cause for the officer to

enter his apartment. He does not challenge the existence of exigent circumstances. In support of

his argument, Clark asserts Officer Stacy “entered the threshold of the apartment before the

observation of marijuana was detected (sic).” Officer Stacy testified he saw the marijuana on the

coffee table as he was approaching the apartment door and before he entered the apartment.

Other witnesses, including Clark’s brother and a friend who was present when the search took

place, indicated that Officer Stacy entered the apartment before he could have seen the marijuana

on the coffee table. The defense witnesses indicated the top of the coffee table was too cluttered

for Officer Stacy to have seen the marijuana, and the two men who were leaving the apartment

obstructed Officer Stacy’s view into the apartment. In addition to witness testimony, the defense

presented two photographs of the view from just outside of the apartment to the interior of the

apartment through the open doorway. These photographs, however, did not conclusively

establish that Officer Stacy could not see the coffee table from just outside the doorway of the

apartment. In the first photograph, the door is partially open, a person is standing in the doorway,

and the coffee table is not visible. In the second photograph, the door is fully open, no one is

standing in the doorway, and the coffee table is visible. Thus, whether Officer Stacy could have

seen the coffee table from outside the apartment depended on the accounts of witnesses.




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       In this case, the trial court could have reasonably believed Officer Stacy’s testimony that

he saw the marijuana on the coffee table before he entered the apartment, and disbelieved the

defense witnesses’ testimony that Officer Stacy could not have seen the marijuana on the coffee

table before he entered the apartment. Because whether Officer Stacy could see the marijuana on

the coffee table before he entered the apartment ultimately depended upon a determination of the

credibility and demeanor of the witnesses, we must defer to the trial court’s implied finding that

Officer Stacy saw the marijuana on the coffee table before he entered the apartment. See

Valtierra, 310 S.W.3d at 447; Ross, 32 S.W.3d at 856.

       In support of his argument that Officer Stacy lacked probable cause to enter the

apartment, Clark cites two cases. In the first case, State v. Steelman, the court of criminal appeals

upheld the trial court’s decision to grant a motion to suppress evidence, recognizing that, based

on the facts and circumstances of that case, “the mere odor of burning marijuana did not give the

officers probable cause to believe that the [defendant] had committed the offense of possession

of marijuana in their presence.” 93 S.W.3d 102, 108 (Tex. Crim. App. 2002). The court went on

to state that “[t]he odor of burning marijuana, standing alone, does not authorize a warrantless

search and seizure in a home.” Id. In the second case, Estrada v. State, , the court of criminal

appeals faulted the court of appeals for concluding that the odor of marijuana coming out of a

house, along with other observations, did not establish probable cause. 154 S.W.3d 604, 609

(Tex. Crim. App. 2005) The court of criminal appeals clarified that while an odor alone may not

justify a warrantless search, “‘the odor of an illegal substance’ may be a factor that police

officers use in determining whether there is probable cause that an offense has been or is being

committed.” Id. at 608-09.




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       Here, the evidence, when viewed in the light most favorable to the trial court’s ruling,

shows Officer Stacy did not rely exclusively on the odor of marijuana to establish probable

cause. The sum total of the facts and circumstances available to Officer Stacy prior to his initial

entry included: (1) the odor of burnt marijuana in the vicinity of Clark’s apartment; (2) signs of

activity from inside of Clark’s apartment; (3) the time of night (between 12:30 and 1:00 a.m.);

(4) a strong odor of marijuana emanating from the apartment when the door opened; (5) the sight

of marijuana on a coffee table inside the apartment; (6) two people inside the apartment seated

on a couch near the marijuana; and (7) two people exiting the apartment. In addition, the

evidence showed Officer Stacy was a licensed drug recognition expert and a drug recognition

instructor. Officer Stacy testified he recognized the odor of burnt marijuana from his training and

experience and he identified the marijuana on the coffee table from his training and experience.

In light of all of the information available to Officer Stacy, the reasonable inferences that could

be drawn from that information, and Officer Stacy’s experience, we conclude that probable cause

did exist at the time of his initial entry into Clark’s apartment.

       Clark further complains about the reasons Officer Stacy gave for initially approaching

Clark’s apartment. According to Officer Stacy, he approached Clark’s apartment that night

because he smelled the odor of burnt marijuana and heard signs of activity from inside the

apartment. This complaint, which questions Officer Stacy’s action in approaching the door to

Clark’s apartment, is meritless. When Officer Stacy initially smelled the odor of burnt marijuana,

he was patrolling a common area outside of Clark’s apartment which was operated by the

university. Officer Stacy decided to approach the apartment to investigate because of the odor

and signs of activity coming from inside the apartment. Officer Stacy was planning to knock on

the door of the apartment, but the door opened before he could do so. Officer Stacy’s decision to



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go up the stairs toward Clark’s apartment to investigate was lawful. As a general rule, police

officers are as free as any other citizen to knock on someone’s door and ask to talk with them, to

approach citizens on the street or in their car, and to ask for their cooperation or information.

State v. Garcia–Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App. 2008); see State v. Perez, 85

S.W.3d 817, 819 (Tex. Crim. App. 2002). Issue three is overruled.

       C. Voluntary Consent to Search the Bedroom

       In his first issue, Clark argues the trial court erred in finding the existence of voluntary

consent to search Clark’s bedroom. Under the Fourth and Fourteenth Amendments, a search

conducted without a warrant is per se unreasonable subject to a few specifically established and

well-delineated exceptions. Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011);

Gutierrez, 221 S.W.3d at 685. One of the exceptions to the warrant requirement is a search

conducted with a person’s voluntary consent. Meekins, 340 S.W.3d at 458; Gutierrez, 221

S.W.3d at 686. Under Texas law, the State must prove the voluntariness of consent to search by

clear and convincing evidence. Gutierrez, 221 S.W.3d at 686; State v. Ibarra, 953 S.W.2d 242,

244-45 (Tex. Crim. App. 1997). The voluntariness of consent to search is a question of fact to be

determined from analyzing all of the circumstances of a particular situation. Meekins, 340

S.W.3d at 459. Courts review the totality of the circumstances of a particular police-citizen

interaction from the point of view of the objectively reasonable person. Id. Consent may not be

coerced. Meekins, 340 S.W.3d at 458-59; Gutierrez, 221 S.W.3d at 686. The ultimate question is

whether the person’s will has been overborne and his capacity for self-determination critically

impaired such that his consent to search must have been involuntary. Meekins, 340 S.W.3d at

459. “Because issues of consent are necessarily fact intensive, a trial court’s finding of

voluntariness must be accepted on appeal unless it is clearly erroneous.” Id. at 460.



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       On appeal, Clark argues the State failed to meet its burden of showing Clark consented to

the search by clear and convincing evidence. Clark asserts that the evidence shows that his

father, not him, gave verbal consent to search his bedroom. Clark further asserts that the

evidence shows that he gave written consent only after the search was underway. However,

according to Officer Stacy’s account, he obtained both verbal and written consent to search from

Clark before the search began. The trial court could have reasonably found Officer Stacy’s

account more reliable than the defense witnesses’ accounts.

       Moreover, the evidence in this case does not show that Clark’s will was overborne, or

that his capacity for self-determination was critically impaired when he gave consent. The

evidence shows Officer Stacy asked Clark for consent to search his bedroom two or three times.

Officer Stacy testified that in at least one instance, Clark was evasive and did not respond.

“[R]epeatedly asking for consent does not result in coercion, particularly when the person refuses

to answer or is otherwise evasive in his response.” Meekins, 340 S.W.3d at 464. According to

Officer Stacy, Clark’s demeanor was polite and calm. Clark informed Officer Stacy he wanted to

talk to his father, and Clark was able to talk to both his father and mother before he gave consent.

Officer Stacy also testified that he never made any promises to Clark, nor did he coerce or force

Clark to sign the consent to search form. Even though Clark’s father testified that the officers

promised him they would “go easy” on Clark if consent to search was given, Clark himself

testified that Officer Stacy never made any promises to him. Clark admitted he read the consent

to search form before he signed it. The consent to search form states that Clark was informed of

his “Constitutional right to refuse to give … any … officer consent to make a search … and that

those rights are guaranteed by both the Texas and Federal Constitutions.”




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       Viewing the totality of the circumstances in the light most favorable to the trial court’s

ruling, we conclude the trial court’s finding that Clark voluntarily consented to the search of his

bedroom was not clearly erroneous. Issue one is overruled.

                                       EXPERT TESTIMONY

       In his second issue, Clark argues the trial court violated the Sixth Amendment right to

compulsory process by disallowing expert testimony. At the suppression hearing, Clark’s father

testified that he had conducted an experiment to determine if Officer Stacy could have smelled

marijuana coming from Clark’s apartment. In this experiment, Clark’s father lit three cigarettes

and put them in an ashtray just outside of Clark’s apartment. He then stood in the spot on the

ground floor where Officer Stacy indicated he had smelled the odor of burnt marijuana. Next,

Clark’s father used smoke detectors to evaluate whether smoke from Clark’s apartment could be

detected on the ground floor. Although the trial court allowed Clark’s father to testify about this

experiment during the suppression hearing, it warned defense counsel that the witness would

have to be qualified as an expert before his testimony would be allowed to be presented to the

jury. Clark’s father was never properly qualified as an expert witness, nor was his purported

expert testimony shown to be reliable and relevant. At trial, when defense counsel attempted to

elicit testimony from Clark’s father about the experiment, the trial court disallowed the testimony

on the basis that the witness had not been qualified as an expert.

       Texas Rule of Evidence 702 allows a qualified expert to testify if the trial court finds that

“scientific, technical, or other specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue.” TEX. R. EVID. 702. Under Rule 702, the trial court

serves as a gatekeeper. Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002). Before

admitting expert testimony under Rule 702, the trial court must be satisfied that three conditions



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are met: (1) the witness qualifies as an expert by reason of his knowledge, skill, experience,

training, or education; (2) the subject matter of the testimony is an appropriate one for expert

testimony; and (3) admitting the expert testimony will actually assist the factfinder in deciding

the case. Davis v. State, 329 S.W.3d 798, 813 (Tex. Crim. App. 2010). These conditions are

commonly referred to as (1) qualification, (2) reliability, and (3) relevance. Id. The proponent of

the expert testimony bears the burden of establishing that these conditions are met. Id.

(qualification and reliability); Sexton, 93 S.W.3d at 100 (reliability); Kelly v. State, 824 S.W.2d

568, 573 (Tex. Crim. App. 1992) (reliability and relevance).

       “The Sixth Amendment right to compulsory process ‘is in plain terms the right to present

a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to

the jury so it may decide where the truth lies.’” Coleman v. State, 966 S.W.2d 525, 528 (Tex.

Crim. App. 1998) (quoting Washington v. Texas, 388 U.S. 14, 19 (1967)). However, the right to

compulsory process is not absolute. See Taylor v. Illinois, 484 U.S. 400, 410 (1988). The United

States Supreme Court has recognized that a criminal defendant “does not have an unfettered right

to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules

of evidence.” Id. (holding a discovery sanction disallowing the testimony of a defense witness

did not violate the Sixth Amendment’s right to compulsory process). The Sixth Amendment does

not guarantee the right to secure the testimony of any and all witnesses; rather, it guarantees only

the right to obtain the testimony of witnesses whose testimony would be both material and

favorable to the defense. Coleman, 966 S.W.2d at 527-28. To exercise this right, a criminal

defendant must make a plausible showing that the witness’s testimony would be both material

and favorable to the defense. Id. at 528.




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       On appeal, Clark argues that by disallowing his purported expert testimony, the trial court

violated his Sixth Amendment right to compulsory process. To support his argument, Clark cites

a single case, Washington v. Texas, 388 U.S. 14 (1967). However, Washington, which did not

involve the well-established procedures for admitting expert testimony, is readily

distinguishable. In Washington, the United States Supreme Court held that a state statute

precluding a criminal defendant from calling an accomplice witness to testify violated the Sixth

Amendment right to compulsory process. Id. at 23.

       Here, Clark did not qualify the witness as an expert in the area of smoke diffusion, and he

did not prove to the trial court that the purported expert testimony was reliable and relevant.

Thus, the purported expert testimony was inadmissible under the Texas Rules of Evidence. We

conclude the Sixth Amendment right to compulsory process was not violated. Issue two is

overruled.

                                          CONCLUSION

       The judgment of the trial court is affirmed.

                                                 Karen Angelini, Justice


Do not publish




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