                         NUMBER 13-12-00214-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JOSE ARMANDO GARCIA,                                                      Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 156th District Court
                        of Live Oak County, Texas.


                         MEMORANDUM OPINION

          Before Justices Rodriguez, Benavides, and Longoria
              Memorandum Opinion by Justice Rodriguez
      Appellant, Jose Armando Garcia, challenges his conviction for possession of a

controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010).

By one issue, appellant argues that the trial court abused its discretion in denying his

motion to suppress. We affirm.
                                       I. Background

       Appellant was indicted for possession of a controlled substance in connection with

the discovery by a Texas Department of Public Safety (DPS) officer of cocaine on

appellant’s person during a traffic stop. See id. Appellant filed a motion to suppress,

alleging that the incriminating evidence was obtained without probable cause or

reasonable suspicion particularized to appellant.

       At the hearing on the motion to suppress, DPS Officer C.J. Villarreal testified that

he stopped a brown, Chevrolet pick-up for driving sixty-eight miles per hour in a sixty-five

miles per hour speed zone. As he approached the vehicle and the driver opened the car

door, Officer Villarreal identified a strong smell of burnt marihuana. According to Officer

Villarreal, as the driver exited the vehicle, he noticed the driver adjust a small bulge in his

stomach area. Officer Villarreal searched the driver and discovered the bulge to be

marihuana. The driver was arrested by an assisting officer.

       Officer Villarreal testified that he next approached appellant, who was still sitting in

the vehicle. While appellant was still in the vehicle, Officer Villarreal noticed a small

bulge and cellophane peeking out of the fifth pocket of appellant's jeans.              Officer

Villarreal testified that he has learned in his twelve years of police experience that the fifth

pocket is commonly used to store contraband. Officer Villarreal ordered appellant to exit

the vehicle, at which point he removed the bulging object from appellant’s fifth pocket and

discovered it to be 1.86 grams of cocaine. Appellant was then taken into custody.

       After Officer Villarreal’s testimony and argument by counsel, the trial court made

the following finding:


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              So at this time unless I have other authority based on the vehicle,
       and then we got the smell of marijuana, the defendant being asked to leave
       the car and the fact that he had a bulge in his pocket after the driver had
       marijuana I believe does rise to the level that would be needed to have the
       defendant — person searched without a warrant.

The trial court then denied appellant’s motion to suppress. Appellant pleaded guilty and,

pursuant to a plea agreement, was sentenced to five years' incarceration. This appeal

followed.

                       II. Standard of Review and Applicable Law

       Whether the trial court properly denied a defendant's motion to suppress is

reviewed under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720,

725 (Tex. Crim. App. 2007); Scardino v. State, 294 S.W.3d 401, 405 (Tex. App.—Corpus

Christi 2009, no pet.). The trial judge is the sole trier of fact and judge of the credibility of

the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d

17, 24–25 (Tex. Crim. App. 2007). We give almost total deference to a trial court's

determination of historical facts and mixed questions of law and fact that rely upon the

credibility of a witness, but we apply a de novo standard of review to pure questions of law

and mixed questions that do not depend on credibility. Martinez v. State, 348 S.W.3d

919, 922–23 (Tex. Crim. App. 2011). We must uphold the trial court's ruling if it is

reasonably supported by the record and is correct under any theory of law applicable to

the case. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).

       The Fourth Amendment of the United States Constitution guarantees:

       the right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable searches and seizures, shall not be violated,
       and no Warrants shall issue, but upon probable cause, supported by Oath


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       or affirmation, and particularly describing the place to be searched, and the
       persons or things to be seized.

U.S. CONST. amend. IV. The issue of whether a search or seizure is reasonable under

the Fourth Amendment is measured in objective terms by examining the totality of the

circumstances, balancing the public interest served and the individual’s right to be free

from arbitrary detentions and intrusions. Kothe v. State, 152 S.W.3d 54, 62–63 (Tex.

Crim. App. 2004).

       "'[T]he law is well settled in this jurisdiction that when an officer has probable cause

to believe that an offense is being committed in his presence . . . he has the right to take

reasonable measures to insure that the incriminating evidence is not destroyed[,] and

reasonable physical contact[, including a search of defendant's person,] is one of these

measures.'" Hitchcock v. State, 118 S.W.3d 844, 850 (Tex. App.—Texarkana 2003, pet.

ref'd) (quoting Hernandez v. State, 548 S.W.2d 904, 905 (Tex. Crim. App. 1977)) (other

citations omitted). Probable cause exists where the police have trustworthy information

that, considered as a whole, is sufficient to cause a reasonable person to believe a

particular person has committed or is committing an offense.           Hughes v. State, 24

S.W.3d 833, 838 (Tex. Crim. App. 2000).            "Though the concept evades precise

definition, [probable cause] involves 'a reasonable ground for belief of guilt' that is

'particularized with respect to the person to be searched or seized.'" Baldwin v. State,

278 S.W.3d 367, 371 (Tex. Crim. App. 2009) (quoting Maryland v. Pringle, 540 U.S. 366,

370–71 (2003)).

                                      III. Discussion

       By one issue, appellant argues that the trial court erred in denying his motion to

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suppress because Officer Villarreal did not have sufficient facts, particularized to

appellant, to justify the search of his person.

       In this case, there is no controversy over the relevant facts, which clearly

constituted trustworthy information from which Officer Villarreal could conclude that

appellant had been or was committing a crime. See Hughes, 24 S.W.3d at 838. We

first note that the odor of marihuana coming from a car is, alone, sufficient to give an

officer probable cause particularized to every person in the car. See Jordan v. State,

394 S.W.3d 58, 64 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (citations omitted).

But here, there was more than the mere odor of marihuana. Officer Villarreal also

directly observed a bulge and cellophane peeking out of appellant's fifth pocket, which

was a clear signal to someone with Officer Villarreal's twelve years of experience that

appellant very likely had drugs in that pocket.       In short, Officer Villarreal was in

possession of facts, particularized to appellant, that gave him reasonable grounds to

believe that appellant was guilty of possession of drugs. See Baldwin, 278 S.W.3d at

371. And under the circumstances, searching appellant and recovering the cocaine

from his pocket was a reasonable, minimally invasive measure to ensure that the

incriminating evidence was not destroyed.         See Hitchcock, 118 S.W.3d at 850–51

(holding that where the officer had probable cause that the driver and passenger of a car

had drugs on their persons, his immediate search of them was a justified, minimally

invasive means to preserve the evidence); see also Jordan, 394 S.W.3d at 64–65.

Viewing the totality of the circumstances, we conclude that Officer Villarreal's probable

cause determination was objectively reasonable and justified his search of appellant's


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person. See Kothe, 152 S.W.3d at 62–63.

       In our review, we must uphold the trial court's ruling if it is reasonably supported by

the record and is correct under any theory of law applicable to the case. See Stevens,

235 S.W.3d at 740. In this case, the trial court's ruling was supported by the undisputed

facts and correct under the law, and there was therefore no error in the denial of

appellant's motion to suppress. Appellant's issue is overruled.

                                     IV. Conclusion

       We affirm the judgment of the trial court.



                                                                 NELDA V. RODRIGUEZ
                                                                 Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
27th day of June, 2013.




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