Opinion issued March 12, 2015




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-13-00897-CR
                            ———————————
                           CESAR ROCHA, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


           On Appeal from the County Criminal Court at Law No. 1
                            Harris County, Texas
                        Trial Court Case No. 1914250




                          OPINION ON REHEARING

      A jury found Rocha guilty of possession of marijuana in a useable quantity

of more than two ounces and less than four ounces and assessed his punishment at

270 days’ confinement. On appeal, Rocha contends that the trial court erred in

(1) denying his motion to dismiss, because the State’s re–filing of the case violated
his right to due process and articles 29.03 and 29.04 of the Texas Code of Criminal

Procedure; (2) denying his motion to suppress pursuant to the Fourth Amendment;

and (3) denying his request for a jury instruction pursuant to article 38.23 of the

Texas Code of Criminal Procedure. Rocha further contends that the trial court

violated his right to due process by failing to maintain impartiality during the

proceedings. After a panel of our court issued its opinion in this case, Rocha

moved for rehearing en banc. The en banc court denies the motion for rehearing;

however, the panel withdraws its opinion and judgment and issues this opinion and

judgment in their stead. Finding no error, we affirm.

                                    Background

      In February 2010, Patrol Officer J. P. Cruz observed a blue Ford Expedition

with tinted windows parked in an apartment complex parking lot after dark, its

lights on and engine running. The complex’s leasing office had received numerous

complaints regarding narcotics deals, prostitution, and trespassing taking place in

this parking lot. Officer Cruz was aware of these complaints, and he personally

had observed narcotics activity in this parking lot. He had observed individuals

parked in the complex parking lot with their car engines running and headlights on

before making narcotics transactions. The Expedition remained parked for five to

ten minutes. No one entered or exited the car. Officer Cruz observed at least three

people sitting in the Expedition.



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      Officer Cruz approached the Expedition on foot with a flashlight.           He

approached the vehicle because no one was exiting it, and its lights and engine had

been on for five to ten minutes. As a safety precaution, he also drew his handgun,

but pointed it down and close to his body. Officer Cruz testified that he noticed the

driver’s window was partially open; as he approached it, he smelled a strong odor

of marijuana emanating from the car. Officer Cruz waved to the driver, who was

Rocha. In response, Rocha further rolled down his window.

      Officer Cruz asked the passengers to exit the car, and he handcuffed them.

Officer Cruz asked Rocha if he had marijuana in the car. Rocha confessed that he

did and that it was in the car’s center console. Officer Cruz discovered marijuana

in the car’s center console, wrapped in 25 clear, small bags. All of the small bags

were further enclosed in a large, clear bag.

      Course of Proceedings

      On February 5, 2010, the State filed an information against Rocha. On April

19, 2010, Rocha pleaded guilty to possession of marijuana pursuant to a plea

bargain. The trial court convicted him and assessed his punishment at thirty days’

confinement. Rocha later filed a successful writ of habeas corpus pursuant to

Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010). The record is silent as

to when Rocha filed the writ and when the writ was granted. The State proceeded




                                          3
to a re–trial. The trial court reset the case on multiple occasions in 2013: on April

15, May 16, June 14, and June 24.

      At the last trial setting, the State moved to dismiss the case and noted that it

would re–file it. The trial court granted the State’s motion. The State then filed a

new information against Rocha, and the trial court set the case for trial. Rocha

moved to suppress the evidence of marijuana and his statements to Officer Cruz,

and at trial, the trial court held a hearing on the motion. Rocha also moved to

dismiss the case, contending that the State’s earlier non–suit precluded it from re–

filing the same criminal charges. The trial court denied both motions.

      At trial, Officer Cruz testified that based on his experience, a narcotics

dealer who plans to make a sale typically will park his car in a parking lot, will

leave its engine running, will remain in the car, and will occasionally leave its

lights on, because the dealer plans to conduct the sale from the car and leave the

parking lot as soon as the transaction is complete. Officer Cruz also testified that,

as he approached the Expedition, he drew his gun for his own safety, because a

narcotics dealer typically carries a weapon.




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                                    Discussion

I.    Re-filed Information

      Standard of review

      We review a trial court’s decision to deny a defendant’s motion to dismiss a

charging instrument under a bifurcated standard. See State v. Krizan–Wilson, 354

S.W.3d 808, 815 (Tex. Crim. App. 2011) (citing Guzman v. State, 955 S.W.2d 85,

87–89 (Tex. Crim. App. 1997)). We defer to a trial court’s “findings of fact that

are supported by the record, as well as mixed questions of law and fact that rely

upon the credibility of a witness.” Id. We review de novo “pure questions of law

and mixed questions that do not depend on credibility determinations.” Id.

      Analysis

      Rocha contends that the State’s re–filing of the case violated (1) his right to

due process; and (2) articles 29.03 and 29.04 of the Texas Code of Criminal

Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.04 (West 2006).

These contentions lack merit. The Due Process Clause of the Fifth Amendment

“has a limited role to play in protecting against oppressive delay” and concerns

only pre–indictment delays. Krizan–Wilson, 354 S.W.3d at 814 (quoting United

States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 2048 (1977)); State v.

Harbor, 425 S.W.3d 508, 515 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

Here, Rocha’s complaint does not concern pre–information or investigative delay;



                                         5
rather, it concerns the State’s delay during the prosecution of the case.

Accordingly, the State’s motion to dismiss and immediate re–filing of the case did

not violate the Fifth Amendment’s Due Process Clause. See Harbor, 425 S.W.3d

at 515.

      Relying on United States ex. rel. Hetenyi v. Wilkins, Rocha next contends

that the State’s re–filing of the case was fundamentally unfair, violating the Due

Process Clause of the Fourteenth Amendment. 348 F.2d 844, 867 (2d Cir. 1965).

Hetenyi, however, is distinguishable. There, the State charged the defendant with

first–degree murder, but the jury found him guilty of second–degree murder. Id. at

847. After his conviction was vacated on appeal, the State again prosecuted the

defendant for first–degree murder. Id. The federal appellate court held that the re–

prosecution for first–degree murder violated the due process clause of the

Fourteenth Amendment, because the jury refused to convict the defendant of first–

degree murder in the first trial. Id. at 856–57. In contrast to the facts in Hetenyi,

the State moved to dismiss this case before any trial took place, and Rocha had not

been acquitted of possession of marijuana.

      Rocha further contends that the State’s immediate re–filing of the

information violates articles 29.03 and 29.04 of the Code of Criminal Procedure.

See TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.04. Article 29.03 provides that:

      A criminal action may be continued on the written motion of the State
      or of the defendant, upon sufficient cause shown; which cause shall be

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      fully set forth in the motion. A continuance may be only for as long
      as is necessary.

Id. art. 29.03. Article 29.04 similarly provides the grounds for a State’s motion to

continue the case. See id. art. 29.04 (outlining requirements of State’s motion for

continuance for want of a witness). Neither provision, however, limits the State’s

right to re–file a case after dismissal; both are inapplicable to the facts presented in

this case. We hold that the trial court properly denied Rocha’s motion to dismiss

the State’s re–filed information.

II.   Suppression Ruling

      Standard of review and applicable law

      We evaluate a trial court’s ruling on a motion to suppress under a bifurcated

standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).

The trial judge is the sole trier of fact and judge of the weight and credibility of the

evidence and testimony. Weide v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.

2007). Accordingly, we defer to the trial court’s determination of historical facts if

the record supports them. Ford, 158 S.W.3d at 493. We review de novo the trial

court’s application of the law to those facts. Id. “[T]he prevailing party is entitled

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

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

(Tex. Crim. App. 2011) (quoting State v. Garcia–Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008)). A trial court’s ruling will be sustained if it is “reasonably

                                           7
supported by the record and correct on any theory of law applicable to the case.”

Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) (quoting Willover v.

State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)).

      “Law enforcement and citizens engage in three distinct types of interactions:

(1) consensual encounters; (2) investigatory detentions; and (3) arrests.” State v.

Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011) (citing Florida v.

Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991), Gerstein v. Pugh, 420

U.S. 103, 111–12, 95 S. Ct. 854, 862 (1975), and Terry v. Ohio, 392 U.S. 1, 30–31,

88 S. Ct. 1868, 1884–85 (1968)). Consensual police–citizen encounters do not

implicate Fourth Amendment protections. Id. at 411 (citing Bostick, 501 U.S. at

434, 111 S. Ct. at 2386). In contrast, if there is a detention, the detaining officer

must have reasonable suspicion that the person “is, has been, or soon will be,

engaged in criminal activity.” Id. (citing Florida v. Rodriguez, 469 U.S. 1, 5–6,

105 S. Ct. 308, 310–11 (1984)). When there is a warrantless arrest, the arresting

officer must have “probable cause to believe the same.” Id. (citing Atwater v. City

of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557 (2001)).

      We consider the “totality of the circumstances surrounding the interaction to

determine whether a reasonable person in the defendant’s shoes would have felt

free to ignore [a police officer’s] request or terminate the interaction.” Id. (citing

Brendlin v. California, 551 U.S. 249, 255, 127 S. Ct. 2400, 2405–06 (2007)).



                                          8
Although we consider “[t]he surrounding circumstances, including time and place,

. . . the officer’s conduct is the most important factor” in deciding whether an

encounter between a citizen and a police officer was consensual or a Fourth

Amendment seizure. Id. (citing Garcia–Cantu, 253 S.W.3d at 244). “[W]hen an

officer through force or a showing of authority restrains a citizen’s liberty, the

encounter is no longer consensual.” Id. (citing Brendlin, 551 U.S. at 254, 127 S.

Ct. at 2405). To support a reasonable suspicion that a person is, has been, or soon

will be engaged in criminal activity, an officer must have “specific, articulable

facts . . . combined with rational inferences from those facts.” Derichsweiler v.

State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011) (citing United States v.

Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989), and Crain v. State, 315

S.W.3d 43, 52 (Tex. Crim. App. 2010)). We examine the reasonableness of a

temporary investigative detention in light of the totality of the circumstances to

determine whether an officer had an objectively justifiable basis for the detention.

Id. (citing Terry, 392 U.S. at 21–22, 88 S. Ct. 1868, 1880, and United States v.

Cortez, 449 U.S. 411, 417–18, 101 S. Ct. 690, 695 (1981)); Balentine v. State, 71

S.W.3d 763, 768 (Tex. Crim. App. 2002) (citing Woods v. State, 956 S.W.2d 33,

38 (Tex. Crim. App. 1997)). Reasonable suspicion may exist even if the conduct

of the person detained is “as consistent with innocent activity as with criminal




                                         9
activity.” York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011) (quoting

Curtis v. State, 238 S.W.3d 376, 378–79 (Tex. Crim. App. 2007)).

      A defendant has the “burden of producing evidence to rebut the presumption

of proper conduct by law enforcement” and can satisfy it “with evidence that the

seizure occurred without a warrant.”       Woodard, 341 S.W.3d at 412.          “If the

defendant satisfies the initial burden, the burden then shifts to the State to establish

that the seizure was nevertheless reasonable under the applicable standard—either

reasonable suspicion or probable cause.” Id.

      A police officer “may conduct a warrantless search of a vehicle if it is

readily mobile and there is probable cause to believe that it contains contraband.”

Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009) (citing Pennsylvania

v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487 (1996), and California v.

Carney, 471 U.S. 386, 393, 105 S. Ct. 2066, 2070 (1985)). A strong odor of

marijuana emanating from a car establishes probable cause to search the car and its

occupants. Jordan v. State, 394 S.W.3d 58, 64–65 (Tex. App.—Houston [1st

Dist.] 2012, pet. ref’d) (citing Parker v. State, 206 S.W.3d 593, 597 n.11 (Tex.

Crim. App. 2006)); see also Miller v. State, 608 S.W.2d 684, 685–86 (Tex. Crim.

App. 1980) (holding that officers were authorized to conduct pat-down search after

smelling odor of marijuana emanating from car and from appellant’s person); State




                                          10
v. Crawford, 120 S.W.3d 508, 510 (Tex. App.—Dallas 2003, no pet.) (finding that

officers had probable cause to search car after smelling odor of burned marijuana).

      Analysis

      Rocha contends that Officer Cruz violated his Fourth Amendment rights in

connection with Rocha’s detention and subsequent arrest.1 The State adduced

sufficient evidence, however, that Officer Cruz had specific, articulable facts

supporting a reasonable suspicion that Rocha was connected with criminal activity.

See Woodard, 341 S.W.3d at 411; Derichsweiler, 348 S.W.3d at 914. Officer Cruz

approached the Expedition because the driver and passengers exhibited behavior

consistent with that of other individuals he had observed conducting narcotics

transactions in the same parking lot. Officer Cruz testified to specific, articulable

facts: the passengers and driver waited in the car for several minutes at a location

where he previously had observed narcotics activity, without turning off their car

engine or lights or exiting the car. See Derichsweiler, 348 S.W.3d at 914. The

circumstances, viewed in totality, support Cruz’s investigative detention. See id;

Balentine, 71 S.W.3d at 768.

      The State also adduced sufficient evidence supporting probable cause to

arrest Rocha. Officer Cruz smelled a strong odor of marijuana emanating from

1
      Rocha also contends that Officer Cruz’s conduct violated his Fifth and Sixth
      Amendment rights. Rocha, however, provides no argument or authority in support
      of his contention. Accordingly, we do not address these issues. See TEX. R. APP.
      P. 38.1(i).

                                         11
Rocha’s car as soon as he approached Rocha’s window. Although two of the

passengers contested Officer Cruz’s testimony that the window was rolled down as

he approached, we defer to the trial court’s determination of witness credibility

where the record supports it, as it does here. See Weide, 214 S.W.3d at 24–25;

Ford, 158 S.W.3d at 493. When Officer Cruz smelled an odor of marijuana, he

had probable cause to search the car and its occupants. See Jordan, 394 S.W.3d at

64–65. We hold that the trial court did not err in denying Rocha’s motion to

suppress.

III.   Jury Charge

       Standard of review

       Rocha contends that the trial court erred in denying his request for a jury

instruction pursuant to article 38.23 of the Code of Criminal Procedure, because he

adduced material evidence that the Officer Cruz’s search was unlawful. See TEX.

CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005).            If a fact issue exists

concerning whether evidence was unlawfully obtained, then a trial court must

instruct the jury that if it believes that the evidence was obtained in violation of

article 38.23, then it should disregard the evidence so obtained. Madden v. State,

242 S.W.3d 504, 510 (Tex. Crim. App. 2007); Pierce v. State, 32 S.W.3d 247, 251

(Tex. Crim. App. 2000). The evidence (1) must raise an issue of fact; (2) must be

affirmatively contested; and (3) must be material to the lawfulness of the



                                        12
challenged conduct. Madden, 242 S.W.3d at 510. The defendant must request a

jury instruction on a specific historical fact to obtain one. Id. at 511. “[I]f other

facts, not in dispute, are sufficient to support the lawfulness of the challenged

conduct, then the disputed fact . . . is not material to the ultimate admissibility of

the evidence.” Id. at 510. In other words, “[t]he disputed fact must be an essential

one in deciding the lawfulness of the challenged conduct.” Id. at 511.

      Analysis

      Rocha disputes the facts surrounding his arrest, including: (1) whether

Officer Cruz displayed his gun as a show of force; (2) whether a reasonable person

in his position would have felt free to leave; (3) whether the apartment complex

was a high–crime area; (4) whether Rocha or anyone else in the Expedition was

acting suspiciously; (5) whether Rocha’s window was rolled up when Officer Cruz

approached the Expedition; and (6) whether Officer Cruz had reasonable suspicion.

      Fact issues (1) and (2) are not material, because Officer Cruz had reasonable

suspicion to detain Rocha before approaching the Expedition with his gun drawn.

See id. at 510–11. Issues (3) and (4) are undisputed. No one contested Officer

Cruz’s testimony that he had viewed many narcotics transactions at the apartment

complex. See id. at 510. No one contested that Rocha and the passengers were

waiting in the Expedition in the complex parking lot for several minutes with the




                                         13
car engine running and lights on, the basis for the temporary investigative

detention.

      Fact issue (5) is not material. Although both passengers testified that the

windows were rolled up as Officer Cruz approached, Officer Cruz also could have

smelled marijuana as the passengers exited the car, which occurred before Officer

Cruz asked Rocha if he had any marijuana. Once Officer Cruz smelled marijuana,

he had probable cause to search the car and its occupants. See Jordan, 394 S.W.3d

at 64–65. The ultimate material fact is whether there was an odor of marijuana at

some point, not whether the window was up or down at the initial detention.

Although both passengers contested Officer Cruz’s testimony that the window was

open, this contested fact was not material. See Madden, 242 S.W.3d at 510–11.

Thus, Rocha’s first five challenges were either not material or not contested.

      Issue (6) is not a factual issue, but a legal issue. Whether a police officer has

reasonable suspicion is a question of law, not fact. See id. at 511 (“The jury . . . is

not an expert on legal terms of art. . . . It cannot be expected to decide whether the

totality of certain facts do or do not constitute ‘reasonable suspicion’ under the

law.”).

      Because Rocha did not raise any material fact issue, he was not entitled to an

article 38.23 jury instruction. See id. at 510. Accordingly, the trial court did not

err in denying his request for an article 38.23 jury instruction.



                                          14
IV.   Impartiality of trial court

      Rocha contends that the trial court violated his right to due process in failing

to maintain impartiality during the proceedings. “Due process requires a neutral

and detached hearing body or officer.” Brumit v. State, 206 S.W.3d 639, 645 (Tex.

Crim. App. 2006). A trial court’s actions will be presumed to have been correct,

absent a clear showing of bias. Id.

      Rocha first challenges the following exchange, outside the presence of the

jury, during the State’s argument on Rocha’s motion to suppress:

      The Court: Okay. Let’s say it’s not a consensual encounter. What’s the
      reasonable suspicion to temporarily detain to confirm or dispel any
      suspicions about criminal activity having taken place or about to take place?

      State’s counsel: The reasonable suspicion for the officer to approach—are
      you referring other than the high criminal activity in the area?

      The Court: Other than the high crime area.

A trial judge has broad discretion in maintaining control and expediting a trial and

may interject to clarify a point of confusion. Jasper v. State, 61 S.W.3d 413, 421

(Tex. Crim. App. 2001); Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.—

Houston [14th Dist.] 2002, pet. ref’d). Rocha contends that the trial court went

beyond those bounds and aided the State by intimating that it would find that




                                         15
reasonable suspicion existed when the State had not previously argued this theory. 2

This contention is without merit. The State had earlier argued that Officer Cruz

had probable cause to search the car and detain Rocha:

         State’s counsel: . . . And then once he had that smell, once he had that
         admission, he could search the vehicle. That’s that. It’s very simple. There
         is no complicated explanation as to what happened there and whether the
         officer could enter the vehicle. It’s very simple. He had probable cause to
         search the vehicle.

         The Court: So, your position is that a detention did not exist until after he
         smelled the marijuana?

         State’s counsel: Yes.

         The State argued at the outset that no search occurred until after Officer

Cruz smelled the marijuana emanating from the car. The trial court acted within its

discretion by responding with a question to clarify. See Jasper, 61 S.W.3d at 421.

The State clarified that its position was that no detention occurred until after

Officer Cruz smelled the marijuana. In the subsequent complained–of exchange,

the trial court did not introduce a new alternative theory and thus did not assist the

State.

         Rocha also contends that the trial court violated his right to due process in

failing to hold a pre–trial hearing on his motion to suppress. But a trial court is not

2
         Rocha failed to object to this exchange. But, because the Court of Criminal
         Appeals has not spoken definitively on the issue of whether a trial judge’s
         comments can be challenged on appeal absent an objection, we address the merits
         of Rocha’s complaint. See Brumit v. State, 206 S.W.3d 639, 644–45 (Tex. Crim.
         App. 2006).

                                            16
required to rule on a motion to suppress before trial and may carry the motion

along with the trial on the merits. York v. State, 342 S.W.3d 528, 550–51 (Tex.

Crim. App. 2011) (citing Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App.

1988)). Accordingly, we hold that Rocha failed to make a clear showing of bias

and thus does not overcome the presumption that the trial court maintained its

impartiality during the proceedings.




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                                     Conclusion

       The trial court did not err in denying Rocha’s motion to dismiss, motion to

suppress, and request for an article 38.23 jury instruction, nor did it fail to maintain

impartiality during the proceedings. We therefore affirm the judgment of the trial

court. The motion for rehearing en banc is denied.




                                                 Jane Bland
                                                 Justice

Panel consists of Justices Higley and Bland. ∗

En banc court consists of Chief Justice Radack and Justices Jennings, Keyes,
Higley, Bland, Massengale, Brown, Huddle, and Lloyd.

Publish. See TEX. R. APP. P. 47.2(b).




∗
      Justice Jim Sharp was a member of the original panel, which unanimously voted to
      affirm, but his term of office expired in the interim. The two remaining justices
      issue the opinion on rehearing. See TEX. R. APP. P. 41.1 & 49.3.


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