Opinion issued November 20, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00374-CR

———————————

JUAN VILLAREAL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Case No. 1353512

MEMORANDUM OPINION

A jury found appellant, Juan Villareal, guilty of the felony offense of 

possession of a controlled substance, namely cocaine, weighing between 4 and 200 
2

grams.

1

 After finding true the allegation in an enhancement paragraph that he had 

previously been convicted of a felony offense, the jury assessed his punishment at 

confinement for 25 years and a fine of $10,000. In his sole issue, appellant 

contends that the trial court erred in denying his motion to suppress evidence.

We affirm.

Background

Houston Police Department (“HPD”) Officer C. Dexter testified that on 

July 7, 2012, while on patrol around 2:00 a.m., he saw appellant drive his car into a 

Walgreens store parking lot “at a fast speed,” pull the car “directly in front” of the 

store’s doors, and stop “across two handicap parking spaces.” Appellant left the

engine running, exited the car, “held his waistband,” and “ran into the store at a 

fast speed.” Dexter believed that appellant was committing a robbery.

Officer Dexter drove his patrol car into the parking lot and parked out of the 

view from the Walgreens’ doorway. As Dexter “was pulling up,” he looked at 

appellant’s car to verify that there were no other passengers inside. Upon exiting 

his patrol car, he did not enter the Walgreens, but instead looked into the store’s 

entrance to make sure “everything was okay.” Dexter saw a security guard “sitting 

down where he normally sits” and appellant speaking to an employee at the front 

cash register.

 1 See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.115(a), (d) 

(Vernon 2010).
3

Officer Dexter then proceeded to appellant’s car to look inside it for 

weapons because he was going to issue appellant a citation and instruct him to 

move his car. Dexter noted that the driver’s side window of the car was “cracked” 

open, and he smelled “the strong odor of marijuana coming from inside th[e] 

vehicle.” When he returned to the store and asked appellant to come outside and 

supply his identification, Dexter “smell[ed] a strong odor of marijuana coming 

from [appellant].” Appellant proceeded to move his car “about 40 feet down the 

parking lot to an empty space.” And Dexter, in turn, pulled his patrol car behind 

appellant’s car.

Officer Dexter then noticed appellant, who was still in his car, “reaching 

down towards the floorboard of [his] car . . . [a]nd whatever he was doing . . . was 

taking a long time.” Dexter exited his patrol car and instructed appellant “to get 

out.” Appellant exited his car, but “immediately started walking back into the 

Walgreens,” although Dexter had “command[ed]” him to stop. Appellant refused, 

became “belligerent,” and would not take his hands out of his pockets. Dexter 

handcuffed appellant, patted him down for weapons, and put him in the backseat of 

his patrol car.

Officer Dexter then returned to appellant’s car, but did not open the door. 

He looked into the car through the driver’s side window with his flashlight and 

saw, in “plain view,” “a small baggie of . . . white powder consistent with a 
4

packag[e] of cocaine.” The “package had a Batman logo on it. . . . [I]n the center 

console there was [also] a scale and a small baggie containing [a large amount] of 

empty baggies with the same Batman logo.” Dexter proceeded to his patrol car 

and asked appellant for his keys, which appellant indicated were on the ground

near the patrol car. After Dexter located the keys, appellant, voluntarily and

unprompted, told Dexter that “there’s nothing inside the vehicle” and he “could 

check inside of it.”

Thereafter, Officer Dexter searched appellant’s car. He recovered the “small 

baggie of . . . white powder” and the other items from the center console; he also 

found “a baggie containing more narcotics” inside the speaker on the floorboard of 

the driver’s side of the car. Another HPD officer, O. Sampson, who had arrived on 

the scene, recovered “additional narcotics” inside the floorboard speaker on the 

passenger’s side of the car.

Standard of Review

We review a trial court’s denial of a motion to suppress evidence under a 

bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.

Crim. App. 2013). We review the trial court’s factual findings for an abuse of 

discretion and the trial court’s application of the law to the facts de novo. Id. We 

generally consider only the evidence adduced at the suppression hearing unless the 

parties consensually re-litigate the issue at trial, in which case we also consider 
5

relevant trial testimony. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.

1996). At a suppression hearing, the trial court is the sole and exclusive trier of 

fact and judge of the witnesses’ credibility, and it may choose to believe or 

disbelieve all or any part of the witnesses’ testimony. Maxwell v. State, 73 S.W.3d 

278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

App. 2000). If, as in this case, the trial court makes express findings of fact, we 

review the evidence in the light most favorable to the trial court’s ruling and 

determine whether the evidence supports the fact findings. Valtierra v. State, 310 

S.W.3d 442, 447 (Tex. Crim. App. 2010). We give almost total deference to the 

trial court’s determination of historical facts, particularly when the trial court’s fact 

findings are based on an evaluation of credibility and demeanor. Id. We will 

sustain the trial court’s ruling if it is reasonably supported by the record and is 

correct on any theory of law applicable to the case. Id. at 447–48.

Motion to Suppress Evidence

In his sole issue, appellant argues that the trial court erred in denying his 

motion to suppress the evidence found in his car because it was obtained as a result 

of an illegal and warrantless search.

The Fourth Amendment of the United States Constitution and Article I, 

Section 9 of the Texas Constitution protect against unreasonable searches and 

seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; State v. Betts, 397 
6

S.W.3d 198, 203 (Tex. Crim. App. 2013). A search conducted without a warrant 

issued upon probable cause is per se unreasonable subject to only a few 

specifically established and well-delineated exceptions. See Reasor v. State, 12 

S.W.3d 813, 817 (Tex. Crim. App. 2000). Here, it is undisputed that appellant’s 

car was searched without a warrant.

In the trial court, appellant moved to suppress the “narcotics and drug related 

items” found in his car by Officers Dexter and Sampson. Specifically, Dexter 

testified that he seized the following from appellant’s car: (1) “a small baggie 

of . . . white powder,” with a “Batman” logo on it; (2) “a scale”; (3) “a small 

baggie[,] containing [a large amount of] empty baggies,” also with “Batman” logos

on them; and (4) “a baggie[,] containing more narcotics.” Dexter saw items (1) 

through (3) in “plain view” in the car’s center console, and he found item (4) inside 

the speaker on the driver’s side floorboard. Additionally, Sampson seized more 

“narcotics” from the floorboard speaker on the passenger’s side of the car. 

Initially, we note that Officer Dexter saw the “small baggie of . . . white 

powder,” the “scale,” and other “empty baggies” in “plain view.” Contraband seen 

in “plain view” may be seized without a warrant. See Texas v. Brown, 460 U.S. 

730, 736–39, 103 S. Ct. 1535, 1540–42 (1983). This is because the observation of 

evidence located in “plain view” does not constitute a search subject to Fourth 

Amendment protection. See Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App.
7

2000); Long v. State, 532 S.W.2d 591, 594 (Tex. Crim. App. 1975); see also Swarb 

v. State, 125 S.W.3d 672, 680 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d) 

(observation of property in “plain view” involves no invasion of privacy).

The “plain view” doctrine requires that law enforcement officers: (1) be 

legally present when making their observation and (2) have probable cause to 

associate any visible evidence with criminal activity. Walter, 28 S.W.3d at 541. A 

law enforcement officer need not have actual knowledge that an observed item is 

contraband in assessing whether it constitutes evidence of criminal activity, but he 

must have probable cause to connect the item with criminal activity. Brown, 460 

U.S. at 741–42, 103 S. Ct. at 1543; Joseph v. State, 807 S.W.2d 303, 308 (Tex.

Crim. App. 1991). An officer may use his training and experience in determining 

whether an item seen in plain view constitutes contraband. Brown, 460 U.S. at 

746, 103 S. Ct. at 1545–46 (Powell, J., concurring) (citing United States v. Cortez, 

449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981)); Nichols v. State, 886 S.W.2d 324, 

326 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).

Here, Officer Dexter approached appellant’s car while it was parked in a 

public parking lot, and he shone his flashlight into the driver’s side window, while 

he remained outside and did not open the car’s doors. In the car’s center console,

Dexter saw, “a small baggie of . . . white powder” with a “Batman logo on it,” “a 

scale[,] and a small baggie containing [a large amount of] empty baggies” with 
8

“the same Batman logo[s]” on them. Dexter testified that he has received narcotics 

training, has come into contact with cocaine “quite a bit,” and has experience with 

“these types of drugs.” He explained that the “white powder” he saw was 

“consistent with powder cocaine.” He noted that narcotics dealers use scales to 

“break down” cocaine into smaller amounts for sale, and baggies are used to 

“package[e] it.” He stated that, generally, a logo on narcotics packaging is used as 

“an unofficial trademark for a drug dealer” and the use of “multiple baggies 

packaged together” is for selling narcotics. 

Based on the foregoing, the trial court could have reasonably concluded that 

Dexter’s “plain view” observation of the evidence located in the center console of 

appellant’s car did not constitute a search implicating the Fourth Amendment. See 

Swarb, 125 S.W.3d at 680 (“[T]he officers . . . approached appellant’s vehicle in a 

parking lot open to the public and shone a flashlight into appellant’s vehicle, 

thereby observing the methamphetamine in plain view . . . . Looking inside the 

vehicle, even with the use of a flashlight, does not implicate Fourth Amendment 

protections . . . .”).

Following his “plain view” observation of the “white powder” and other 

narcotics-related items, Officer Dexter asked appellant for the keys to his car. 

After appellant indicated that the keys were on the ground, and Dexter located 

them, appellant volunteered, unprompted, that Dexter “could check inside of [the 
9

car]” because “there’s nothing inside” of it. Upon entering the car, Dexter 

retrieved the “small baggie of . . . white powder,” the “scale,” and the “small 

baggie containing [a large amount of] empty baggies” that he had previously seen. 

The “white powder” field-tested positive for cocaine. Dexter also recovered “a 

baggie[,] containing more narcotics,” from inside the speaker on the driver’s side 

floorboard of the car. And once Officer Sampson arrived at the scene, he found 

“additional narcotics” in the floorboard speaker on the passenger’s side of the car.

Although appellant argues that the officers’ search of his car was illegal 

because it was done without a warrant or probable cause, Officer Dexter testified 

that appellant voluntarily gave his consent for the search. One of the specifically 

established exceptions to the requirements of both a search warrant and probable 

cause to search is a search that is conducted pursuant to consent, so long as the 

consent is voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 223, 93 S. Ct. 

2041, 2043, 2045 (1973); Reasor, 12 S.W.3d at 817. In other words, if consent is 

given voluntarily, a search incident to that consent is not unreasonable. Reasor, 12 

S.W.3d at 818. Here, appellant has not argued that his consent was involuntary 

and the record does not demonstrate that appellant’s consent was anything but 

voluntarily given.2

 Accordingly, the trial court could have reasonably concluded 

 2 The validity of consent to search is a question of fact to be determined from all the 

circumstances. Ohio v. Robinette, 519 U.S. 33, 40, 117 S. Ct. 417, 421 (1996); 

Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). The State is 
10

that appellant’s consent to the search of his car rendered the search valid under the 

Fourth Amendment. See Kirsch v. State, 276 S.W.3d 579, 588–89 (Tex. App.—

Houston [1st Dist.] 2008), aff’d, 306 S.W.3d 738 (Tex. Crim. App. 2010).

Moreover, the trial court could have reasonably concluded that because 

Officer Dexter had probable cause to search appellant’s car, a search warrant was 

not necessary. Dickey v. State, 96 S.W.3d 610, 612 (Tex. App.—Houston [1st 

Dist.] 2002, no pet.) (warrantless search valid, even without consent, when

automobile exception applies). Under the automobile exception to the warrant 

requirement, a law enforcement officer “may conduct a warrantless search of a 

motor vehicle if the officer has probable cause to believe the vehicle contains 

evidence of a crime.” Powell v. State, 898 S.W.2d 821, 827 (Tex. Crim. App. 

1994). “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.” Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App.

2005).

Officer Dexter testified that before he searched appellant’s car, he smelled 

“the strong odor of marijuana coming from inside th[e] vehicle” and “could smell a 

 

required to prove the voluntariness of consent by clear and convincing evidence. 

See Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). Here, Officer 

Dexter’s testimony regarding appellant’s consent was not disputed or contradicted.
11

strong odor of marijuana coming from [appellant].” Texas courts, including our 

own, have repeatedly held that the smell of marijuana alone is sufficient to 

establish probable cause to search a vehicle. See Marsh v. State, 684 S.W.2d 676, 

679 (Tex. Crim. App. 1984) (evidence sufficient to establish probable cause for

search when officer smelled marijuana as he approached defendant’s vehicle); 

Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. [Panel Op.] 1979) (odor of 

marijuana provided probable cause to search defendant’s vehicle); Dickey, 96 

S.W.3d at 613–14 (odor of marijuana coming from car alone constitutes probable 

cause). Thus, even without appellant’s consent, the trial court could have 

reasonably concluded that because Dexter had probable cause to search appellant’s 

car, the search did not violate the Fourth Amendment.

Accordingly, we hold that the trial court did not err in denying appellant’s 

motion to suppress the evidence seized from his car.

We overrule appellant’s sole issue.
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Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice 

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

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