
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-03-00746-CR


Wayne Franklin Churchill, Appellant

v.

The State of Texas, Appellee





FROM THE DISTRICT COURT OF MCCULLOCH COUNTY, 198TH JUDICIAL DISTRICT
NO. 4748, HONORABLE EMIL KARL PROHL, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

	Appellant Wayne Churchill was convicted by a jury of possession of
methamphetamine and sentenced by the trial court to seven years' confinement.  See Tex. Health &
Safety Code Ann. §§ 481.115(d), .102(6) (West 2003 & Supp. 2005).  In two issues, he appeals the
trial court's denial of his motion to suppress and the factual sufficiency of the jury's implied finding
that the officer lacked probable cause to initiate a search.  We will affirm.

BACKGROUND
	Officer Adam Hernandez of the McCulloch County Sheriff's Department was
patrolling Highway 87 approximately three miles south of Brady when his radar showed that
Churchill's truck, pulling a horse trailer, was traveling 79 miles per hour in a 70 mile per hour zone. 
As Hernandez passed Churchill going the other way, Hernandez observed that the truck's windows
were rolled up.  Hernandez pulled Churchill over and approached the truck.  Hernandez observed
that the passenger and driver's side windows were both rolled down and that Churchill was the sole
occupant of the truck.  When Hernandez walked up to the truck, he "detected an odor of burnt
marihuana coming from the inside of the vehicle" which he believed was very fresh.  He asked
Churchill to exit the vehicle, and he complied.  Hernandez then went to the rear of the horse trailer,
checked Churchill's license, and began asking Churchill a series of questions.  When asked if he had
ever been arrested, Churchill answered that he had previously been arrested "for possession." (1) 
Churchill denied that he was currently in possession of illegal weapons or narcotics.  Churchill also
stated that he did not know why Hernandez smelled marihuana.  
	Churchill refused Hernandez's request for consent to search Churchill and his truck.
Hernandez decided to conduct a search anyway and proceeded to "pat Mr. Churchill down for
weapons and narcotics" prior to searching the truck.  Hernandez felt something in Churchill's front
pockets, and upon request, Churchill removed some money.  On another side of Churchill's pocket,
Hernandez felt "something slick."  Hernandez did not know what the object was, but he knew it was
not a weapon.  He asked Churchill to remove it, and, Hernandez recounted, Churchill "started
backing away from me stating 'God, I don't need this.  I don't need this.  I need to go.'"  Hernandez
then placed Churchill in handcuffs "because [Hernandez] didn't know what [he] was going to get
into" and removed the object, discovering that it was four small, white baggies containing a white,
powdery substance. (2)  Hernandez also confiscated several marihuana cigarettes rolled up in a cigarette
box located in Churchill's shirt pocket.  Churchill was then arrested.  A marihuana cigarette, which
was three-quarters burnt, was subsequently found in the truck. 
	Churchill was charged with possession of methamphetamine, a second degree felony. 
See id.  After the trial court denied his motion to suppress, the jury convicted him and the trial court
assessed punishment at seven years' confinement.  This appeal followed.

DISCUSSION
	Churchill asserts that the trial court erred by denying his motion to suppress because
the search violated his federal and state constitutional rights, see U.S. Const. amend. IV; Tex. Const.
art. I, § 9, and that the evidence was factually insufficient to support an implied finding of probable
cause for the search.

Standard of review
	A trial judge is the sole trier of fact at a suppression hearing and evaluates witness
testimony and credibility.  Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). 
Accordingly, the judge may believe or disbelieve all or any part of a witness's testimony because the
trial court observes the demeanor and appearance of a witness.  State v. Gray, 158 S.W.3d 465,
466-67 (Tex. Crim. App. 2005).
	When we review a trial court's ruling on a motion to suppress, we give great
deference to the court's determination of historical facts while reviewing its application of the law
de novo.  Maxwell, 73 S.W.3d at 281.  Because no findings of fact were filed in this case, we view
the evidence in a light most favorable to the trial court's ruling and assume that the court made
implicit findings of fact that support its ruling, as long as the findings are supported by the record.
Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).  
	In determining whether a trial court's decision is supported by the record, we
generally consider only evidence adduced at the suppression hearing.  Rachal v. State, 917 S.W.2d
799, 809 (Tex. Crim. App. 1996); see, e.g., Hardesty v. State, 667 S.W.2d 130, 134 n.6 (Tex. Crim.
App. 1984).  However, that general rule is inapplicable when the suppression issue is consensually
re-litigated by the parties during trial on the merits. (3) Rachal, 917 S.W.2d at 809. 

Motion to suppress
	The initial burden of proof on a motion to suppress evidence on the basis of a fourth
amendment violation rests with the defendant. (4) Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App.
1986).  The defendant meets this burden by demonstrating that the search occurred without a
warrant.  Id.  Thereafter, the burden shifts to the State to prove the reasonableness of the warrantless
search.  Id.  The burden may be met by showing that one of the statutory exceptions to the warrant
requirement is met.  
	Probable cause to search exists when reasonably trustworthy facts and circumstances
within the 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.  McNairy v. State, 835
S.W.2d 101, 106 (Tex. Crim. App. 1991) (citing Washington v. State, 660 S.W.2d 533, 535 (Tex.
Crim. App. 1983)).  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).  We apply the "totality of the circumstances" test
for determining probable cause for a warrantless search.  Torres, No. PD-1322-04, 2005 Tex. Crim.
App. LEXIS 2038, at *7 (Tex. Crim. App. Dec. 7, 2005) (citing Amores v. State, 816 S.W.2d 407,
413 (Tex. Crim. App. 1991)).  
	It has long been recognized that, given their inherent mobility, automobiles present
different analytical problems under search and seizure principles.  Moulden v. State, 576 S.W.2d 817,
819 (Tex. Crim. App. 1978).  This "exigent" circumstance countervails our constitutional preference
for warrants and is premised on the assumption that an on-the-stop warrantless search is a lesser
intrusion on the individual's privacy expectations.  Id. (citing Carroll v. United States, 267 U.S. 132
(1923)); see also generally Chambers v. Maroney, 399 U.S. 42 (1970). 
	The smell of marihuana is sufficient probable cause to search an individual when the
record demonstrates that the officer was trained to recognize the scent of burnt marihuana.  See
Moulden, 576 S.W.2d at 819 (police officers had probable cause to search car validly stopped for
traffic violation when, within their lawful authority, they encountered aroma of burnt marihuana
emanating from vehicle); Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim. App. 1972); see also
Hitchcock v. State, 118 S.W.3d 844, 851 (Tex. App.--Texarkana 2003, pet. ref'd).

Application
	Officer Hernandez testified that when he initially observed Churchill's truck on the
highway, its windows were rolled up.  However, after Churchill stopped, both the passenger and
driver's side windows were rolled down.  Hernandez smelled a fresh odor of burnt marihuana
coming from the inside of the vehicle.  Hernandez testified that he has been trained to detect the
smell of marihuana and has dealt with the issue in over fifty cases.  Churchill admitted that he had
previously been arrested "for possession."  As Hernandez proceeded to pat down Churchill for
weapons, Hernandez felt "something slick."  After being asked to remove it, Churchill "started
backing away from [Hernandez] stating 'God, I don't need this.  I don't need this.  I need to go.'" 
	Under the totality of the circumstances, we find that the smell of fresh burnt
marihuana emanating from the inside of a vehicle of which Churchill was the sole occupant provided
Officer Hernandez, an officer trained in the detection of marihuana, with probable cause to search
both Churchill and his vehicle.  See Moulden, 576 S.W.2d at 819; Ross, 486 S.W.2d at 328;
Hitchcock, 118 S.W.3d at 851.  Although Churchill challenges Hernandez's credibility due to
allegedly inconsistent testimony regarding whether Hernandez requested a canine unit at the scene,
the trial court is the sole judge of witness testimony and credibility.  Torres, 2005 Tex. Crim. App.
LEXIS 2038, at *5-7; Maxwell, 73 S.W.3d at 281.  
	Moreover, we disagree with Churchill's contention that this case is controlled by
Minnesota v. Dickerson, in which the Supreme Court held that "if the protective search goes beyond
what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits
will be suppressed."  508 U.S. 366, 373 (1993); see generally Terry v. Ohio, 392 U.S. 1 (1968).
Dickerson considered whether the fourth amendment permitted the seizure of contraband detected
through a police officer's sense of touch during a protective patdown search.  See Dickerson, 508
U.S. at 368.  However, this is not a case where Hernandez was only authorized to conduct a
protective patdown search.  To the contrary, Hernandez had probable cause to conduct a warrantless
search of Churchill and his vehicle based on the smell of freshly burnt marihuana emanating from
Churchill's lawfully stopped vehicle in which Churchill was the sole occupant.  We overrule
Churchill's first issue.

Factual sufficiency
	In his second issue, Churchill contends that the evidence was factually insufficient
to support the jury's implied finding, submitted under article 38.23(a) of the code of criminal
procedure, that the officer had probable cause to search Churchill and his truck.  See Tex. Code
Crim. Proc. Ann. art. 38.23(a) (West 2005) (no evidence obtained by officer in violation of
constitution or laws shall be admitted in evidence against accused in criminal trial; if evidence raises
issue, jury shall be instructed that if it believes, or has reasonable doubt, that evidence was obtained
in violation of provisions of this article, jury shall disregard evidence so obtained).  However, we
may only conduct a factual-sufficiency review regarding the sufficiency of the State's proof of
elements of the offense.  See Hanks v. State, 137 S.W.3d 668, 672 (Tex. Crim. App. 2004).  We may
not conduct a factual-sufficiency review of the admissibility of evidence when a question is
submitted to the jury pursuant to article 38.23(a).  See id.  We overrule Churchill's second issue.

CONCLUSION
	Having overruled Churchill's issues, we affirm the orders of the trial court. 


					__________________________________________
					W. Kenneth Law, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Affirmed
Filed:   February 9, 2006
Do Not Publish
1.   The record does not reflect the details of Churchill's previous arrest.
2.   William Todsen, a criminalist with the Texas Department of Public Safety, testified that
"each of the four inner zip-loc [bags] contained a substance that contained methamphetamine."
3.   Where the State raises the issue at trial either without objection or with subsequent
participation in the inquiry by the defense, the defendant has made an election to re-open the
evidence, and consideration of the relevant trial testimony is appropriate in our review.  Rachal v.
State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).  At trial, there was extensive testimony by
Hernandez and other officers regarding the circumstances surrounding the search.  At one point,
Hernandez's testimony from the suppression hearing was read, and the trial court told the jury that
the suppression hearing had been held previously.
4.   Churchill does not assert that article I, section 9 of the Texas Constitution provides greater
protection than the fourth amendment of the United States Constitution, or provide any basis for so
construing it.  See U.S. Const. amend. IV; Tex. Const. art. I, § 9. 

