## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 19

- 00038

- CR

_

__________________________

On Appeal from County Criminal Co u rt No. 4 Denton County, Texas Trial Court No. CR

- 2018

- 07211

- D

Befor e Sudderth, C.J.; Womack and Wallach, JJ. Memorandum Opinion by Justice Wallach 

### T ENDO 

### E DMOND 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appellant Tendo Ed m ond pled nolo contend re to possessing under two
ounces of mar ijuana i n excha nge for sixty days in jail , and the trial co urt convicted
him and sentenced him accordingly. See Tex. Health & Safety Code Ann. § 481.121(a)(b)(1); Tex. Penal Code A n n. § 12.22. Appellant preserved his right to appeal the trial court ’ s pre trial denial of his motion to suppress and timely appealed

. In one issue, A ppell ant cont ends that the trial cour t erred b y denying his motion to
suppress the warrantles s search of h is car because the State forfeited any argument based on the a utomobile except ion . A lternatively, h e argues that the a utomobile excepti on di d not jus tify the searc h becau se his car was not readily mobile. W e hold
tha t the preservation rules d id not apply to the Stat e, who prevailed in the trial court,
and that the automobile e xception justif ie d the search . We therefore uphold the trial

court ’ s denial of Appellant ’ s motion to suppress and affirm the tri al court ’ s judgment.
I
. BACKGROUND FACTS AND P ROC EDURAL HISTORY
D uring a traffic stop base d on unconfirmed insurance and a warr ant “ hit ”
relate d to Appe llant ’ s Nissan Sentra ’ s license pl ate number , C arr ollton police smelled
the odor of mari juana coming from the car . The police arrested Appellant after confirming active arrest warrants and placed him in a patrol c ar. They then searche d
h is car and found mari juana inside a black box in the fro nt passenge r seat. Appellant was later charged with possessi ng le ss than two ounces of mari j uana , and he filed a moti on to suppress the warrantless search , arguing that it viol ate d3 Arizona v. Gant ’ s proscription of searches incident to ar rest , 5 5 6 U.S. 332 , 3 51 , 129 S.
C t. 1710, 1723

– 24 (2009); exceeded a limited sea rch a llowed in a Terry stop, Terry v.
Ohio , 392 U.S. 1, 30

– 31 , 88 S. Ct. 1868 , 1884

– 85 (1968 ) ; was not a lawful in ven tory search ; and was not justified by the automobile exce ption ( although he cited impoun dmen t i nventory

- search cases

— South Dakota v. Opper man , 4 28 U.S . 364, 375

– 76, 96 S. Ct. 3092 , 3100 (1976) , and Benavides v. State , 600 S.W.2d 80 9, 812 (T e x. Crim. App . 1 980), not cases based on the automobile exception grounded in probable

cause )

. At the he aring o n Appellant ’ s motion t o sup press, the two Carrol l ton police
off icers involv ed in his arrest and the car search t estified , and the trial court admitted
the audio

- video r ecording of the det ention and search

. In her closing argument , the
prosecutor co n ceded t hat the inventory

- sear ch an d sea rch

- inci dent

- to

- arrest

exc eption s did not apply but argued that “ it ’ s wel l s ettled that s melling marijuana gives
officers the ability to s earch a v ehi cle ” and “ [ t ] hat ’ s an exception to a w arrant. If you have probabl e cause to search you don ’ t need a warrant. ” The pros ecutor did not use
the term automobile exception

. The trial court issued the following wri tten findings afte r denying the motion to
suppress: 1. Sgt. Christophe r Gent and Of ficer Mic ah Goodman are both cer t ified p eace officers in the State of Texas and work f or the Carrollto n Police De partment.4 2. Sgt

. Gent and Officer Goodman testified before this C ourt at a hearing on Defendant ’ s Motion to Suppress on January 24, 201 9. The Co urt finds the testimony of both w itnesse s to be credible in all reg ards. 3. On November 2 2, 201 8 at aroun d 1 1:02 PM, Sgt. Gent wa s conducting routine patrol on Frankford Road, Car rollt on, Denton Co unty, Texas. 4. Sgt. Gent conducted a traffic stop o n the defenda nt ’ s blac k Nissan Sentra for unc o nfirmed insurance and warrants att ached to the vehicl e. 5. The drive r, a nd only occupant of the vehicle, was identified as Tendo Edmond, the defen dant in this case. 6. Sgt. Gent did not initially smell an odor of mar ijuana coming from the vehicle because he was congest ed from being ill and his s ense o f smell was c omprom is ed, whic h was apparent from the video evidence. 7. Sgt. Gent confirmed that the defen dant had active wa rrants from three different agencies, which inclu ded two felon y warrant s from the Dallas Count y Sherif f

’ s Office. 8. Once Sgt. Gent confirmed the defen d ant ’ s warrants, he called for a back

- up unit since his vehicle was not equipped for priso ner t ransport. Of ficer Goodman arrived to backup Sgt. Gent. 9. Sgt. G ent testified that he s melled the odor of mar i juana o n his second approach of th e defendant ’ s veh ic le. 10. S gt. Gent te stified that based on hi s training and experience, he is familiar with the odo r of marijuan a. 11. Officer Goodman testified that he smelled the odor of marij uana comin g from the defendant ’ s vehicle while he was sti ll several feet away from the vehic le. 12. Officer Goodman testified that based o n his training and experience, he is famili ar w ith the odor of marijuana.5 13. The defendant was placed under arre st for his wa rrants and placed in the back of Officer Goodman ’ s vehic le. 14. Sgt. Ge nt and Officer Good man th en conducte d a probable cause searc h of the defendant ’ s vehicle based on the smell of mar ijuana coming from the vehicle. 15. Marijuana was located inside t he defendant ’ s vehicle in a black box sitting in the passenger ’ s sea t. The trial court concluded th at the automobile exception justifie d the
warrantless search.
II
. STANDARD S OF REV IEW W e apply a bifurcated standard of review to a trial court ’ s ruling on a motion t o
suppr ess evidence

. Amador v. Sta t e , 221 S.W.3d 666, 673 ( Tex. Crim. App. 2007); Guzman v. State , 955 S.W.2d 85, 89 ( Tex. Crim. App. 1997)

. While we give great
deference to a trial court ’ s rulings on questions of historical fact and app lication

- of

l aw

- to

- fact questi ons that turn on evalu a ti ng cr edibility and demeanor, we review
de novo application

- of

- law

- to

- fact questio ns that do not tur n on credibility and
demeanor

. Amad or

, 221 S.W.3 d at 673; Estrada v. State , 154 S.W. 3d 604, 607 ( Tex. Crim. Ap p. 2005); Johnson v. State , 68 S.W.3d 644 , 6 52

– 53 ( Tex. Crim. App. 2002)

. Eve n if t he trial court gave the wrong reason for it s ruling, w e must uphold the ruling
if it is both supp orted by th e record and correct under any applica ble legal the ory . State v . Stevens , 235 S. W.3d 736, 740 ( Tex. Crim. A pp. 200 7); Armendariz v. State , 12 3 S.W. 3d 401, 404 ( Tex. Crim. App. 2003).6 Wheth er a warrantless search is reasonable is a questio n of l aw that we review
de novo , measuring reasonableness by exami ning the tota lity of th e circumstances

. Kothe v. State , 1 5 2 S.W .3 d 54, 62

– 63 ( Tex. Crim. App . 2004 )

. In t he process w e must bal ance the pu blic interest and the individual ’ s right to be fre e from arbitrary
detentions and intrusions

. Id

. at 63.
III. DIS CUSSION
In h is sole is sue, Appellant complains that the t r i al cour t erred by denying his
moti on to suppres s beca use the State di d not raise the a u tomobile e xception in the
trial court and t herefo re forfeite d it. Alternatively, Appellant com plains that th e

a utomobile e xception did not appl y because h is car was no t read il y mobile, as he was already in c ustod y a t the time of the sear ch.
A. The State had no duty to raise the automobile exception. Appellant argues that the Sta te did not arg u e the au tomobile exception in the
trial court and therefore forfeited its app e llate a rgument based on i t. As th e prevailing party in the trial court , the State was not s ubject to the rules of procedural default

. See Alford v. State , 400 S.W.3d 924, 928 (Tex. Crim. App. 2013). The case Appellant relies
on does not s tate otherwise

. Marti nez v. State , 91 S.W.3d 331 , 336 (Tex. Crim. App. 2002) ( holding that the court of appeals correctly declined to consider the appellant
State ’ s argument not made in the trial court). W e revie w the trial court ’ s legal rulings de novo, uphold ing the m und er any correct legal th eory . A lfo rd , 400 S.W.3d at 929.
Ne verth e less, in the i nterest of justice, we point out that t he State here did ar gue the7 automo bile exception in the trial court , albeit not by name

. In h er closing argument,
the prosecut or al luded to the automobile exce pti on by st ating that “ s me lling marijuana gives officers the ability to search a v ehi cle ” and “ [ t ] h at ’ s an exception to a

w arrant. If you have probable cause to search you don ’ t need a warrant

. ” Further, Appel lan t mention ed th e ter m autom obile exception in his m oti on to suppress , and the
trial court based its d enial of Appellant ’ s mot i on to suppress o n the automobile exception

. This is therefore not a case where Appellant was sandbagged on appeal with a legal theory he had no oppor tunity to a rgue against in the tri al court. But see
State v. Esparza , 4 13 S.W.3d 81, 85 (Tex. Crim. App. 2013) (upholding the intermediate appellate court ’ s reversal of the trial court ’ s suppression order without addressing R u le 702 theory because ne ither the sup pressio n motion nor the
suppres sio n hearing gave the State or the trial court any notice that the challenged
breat h

- test results could be excluded on that basis). We therefore reje ct t his portion
of A p pellant ’ s issue.
B
. The automobile excep tion justifies th e warra ntless searc h.
The Fou rth A mendment protects against unrea sonable searches and seizure s by government offi cials. U.S. C onst. ame nd. IV; Wiede v. State , 214 S.W.3d 17,
24 (Tex. Crim. App. 2007)

. A warrant less search is per se unrea sonable unle ss it falls
within one of the “ spe cific ally defined and well establi sh ed ” exceptions to the warrant requirement

. McGe e v. State , 10 5 S.W.3d 609, 615 ( Tex. Crim. App. 2003 ) (footnote8 and internal quotation marks omitted ) ; see Best v. State , 118 S.W.3d 857, 862 ( Tex. App.

— For t Worth 2003, no pe t.)

. Under the automobile exce ption to the warrant requirement, police may search

a vehicle without a warrant if it is rea dily mobile an d they ha ve probable cause to
believe the vehicle contains contraband. Pennsylvania v . Labro n , 518 U.S . 938, 940,
116 S . Ct . 2485, 2487 (1996) ; Calif ornia v. Carney , 471 U.S. 386, 393, 105 S. C t. 2066,
2070 (1985); Keehn v. State , 279 S.W.3d 330 , 335 (Tex . Crim. A pp. 2009) ; Wiede , 214 S.W.3d at 24. The two justifications f or the automobi l e excep tion are the
automobile ’ s ready mobility and the lower expectation of privacy in an automobile in

contrast to a ho me or office. Carney , 471 U.S. at 391 , 105 S. C t. at 20 69; Ke ehn , 279 S.W.3d at 335

. Exigent circumstances are not a r equirement of the au tomobil e except ion. Mary land v. Dyson , 52 7 U.S. 465, 467, 119 S. Ct. 20 13, 2014 (1999) ; Neal v.
State , 256 S.W.3d 2 64, 283 (T e x. Crim. App. 2008 ) ; State v. G uzman , 959 S.W.2d 63 1, 633 ( T ex. Crim. App. 1998) ( overruling the lo wer court ’ s decision that beca use a c a r in po lice custo dy could not be m oved without the police ’ s perm ission, the automobile exception did not app ly )

. As for Appell ant ’ s claim that his c ar was not readily mobile when it was

sea rched because he was sitting handcuffe d in the polic e car , n eithe r c ase ci ted by Appella nt in his bri ef stan ds for th at proposition

. See M arcopoulos v. State , 538 S.W.3d 596, 600

– 0 4 (T ex. Crim. App. 2017) (holding the automobile exception did not justify
the warrantless search of defendant ’ s car because police lacked pro b able c a use); Keeh n ,9 279 S.W

. 3d at 335

– 36 (holdin g the automobil e exce pt ion justified the search of
defendant ’ s van parked in his driveway while officer s were inte rviewing him inside his
home )

. Further, court s , including this o ne, have al ready rejected the mobili ty argument Appellant raise s . See Rogers v. State , No. 02

- 15

- 0 0160

- C R, 2016 WL 299752, at

* 4 (Tex. Ap p.

— Fort Worth Jan. 14, 2016, pet. ref ’ d) (mem. op ., not designated fo r publication) ( stating, in case in which the dri ver was arres ted , handcu ffed , and placed
in a patr ol car bef ore the search of his vehicle culmina ti ng in the def endant
passenger ’ s arrest, “ There is no question that [the] vehicle was readily mo bile as it w as being drive n by [ the driver ] immediately prior to the se arch

. ” ) ; see al so St a te v. Pena , No. 03

- 1 8

- 00765

- CR , 2019 WL 378657 0, at * 11

– 12 (Tex. Ap p.

— Aus ti n A u g. 13, 2019, pet. filed ) ( citing Rogers for the proposition that the car was readily mobile and rejecting the defendant ’ s assertion that the automo bile exception did not a pply
b ec ause he had alread y been han dcuffed and p laced in a patrol car be fore the search

o f his car ) ; c f. Neal , 256 S.W.3d at 283 (re jecting defend a nt ’ s assertion that th e automobile exception did not apply because he was already in police custody and
ther efore there was no risk of the evide nce in his truck being lost or destro yed)

. B ut

see S tate v. Elias , 339 S.W.3d 667, 678 ( Tex. Crim. App. 2011) (stating in dict a that “ it could perhaps be debated whether the automobile exception to the warrant requireme nt ou g ht proper l y to be ap plied ” in case in which defendant was arrested
before t he sear ch of his van ) ( citing Am os v. State , 819 S.W.2d 15 6 , 161 (Tex. C r im.10 Ap p. 1991) ); A m os , 810 S.W.2d at 161 ( stating in dicta, “ It may be that wh ere police
come upon an a utom o bile that is parked, and a suspect is in custod y, something more
th an th e i nherent mobility of the vehicle is needed to establish exigency to justify a
warrantless search , ” but recognizing that the Unite d St ates Supreme Court indicated
otherwise in C a rney , 471 U.S. at 392

– 93, 105 S. Ct. at 20 70 ). Despi te the dicta of the Texas Co urt of Criminal Appeals, the United States Supreme Court has made clear that a car does n ot lose its ready mobility after its

oc cupant ’ s arrest. In Mi chigan v. Thomas , 458 U. S . 25 9 , 102 S. C t . 3079 (1 982) , the
minor d river who was cited for drivin g with ou t a license and the passenger owner of
the car

— the adul t defen dant who was arrested for h aving an open bottle of malt liquor in the car

— were taken to a patrol car before the p olice searched the
defend ant ’ s car and fou nd two ba gs of mari juana and a load ed revolver in the air

vents under the dashboard

. The United States Supreme Court reversed a lower

court ’ s conclusion that because the car and its occupan ts were in custo dy by t h e tim e of the w arrantless search, no exige n cy justi fied it

. Id. at 261, 102 S. Ct

. at 308 0

– 8 1

. The Court stated,
It is . . . clear tha t the justification to conduct

. . . a warrantless search [under the automobile exception] does not vanish once the car h a s b een immob ilized; nor d oes it depend upon a revie wing court ’ s assessme nt of th e likelihood in each particul ar case that the car woul d have been driven away, or that it s contents would have been tampered with, during the period required for the police to ob t ain a war rant. Id.11 Accordingly, w e hold that the trial court corre ctly det ermined that the automobile exception justified the warrantless search of Appellant ’ s car . We overrule
the rem ainder of his issue.
IV. CONCLUSION
H aving overruled Appellant ’ s s ole issue , we affirm t he trial court ’ s judgment.

/s/ Mike Wallach Mike Wallach J ust ice
Do Not Publish Tex. R . App. P. 47.2(b)
Delivere d : November 14 , 20 19