MEMORANDUM OPINION

No. 04-10-00411-CR

Edward VILLARREAL,

Appellant

v.

The STATE of Texas,

Appellee 

From the County Court at Law No. 5, Bexar County, Texas

Trial Court No. 300753

Honorable Linda F. Penn, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Marialyn Barnard, Justice, concurring in the judgment only

Delivered and Filed: February 9, 2011

AFFIRMED 

This case arises from the denial of Appellant Edward Villarreal’s motion to suppress 

evidence of marihuana discovered in his backpack. Villarreal argues that the evidence was 

obtained through an unreasonable search. We affirm the trial court’s order. 

BACKGROUND

Villarreal, while riding his bicycle down a public roadway at night, was pulled over by 

Officer Ellis for lacking required lights and running a stop sign. Villarreal ignored Officer 
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Ellis’s instructions to stand by the police car and, instead, tried to stand behind Officer Ellis. 

While frisking Villarreal, Officer Ellis smelled burnt marihuana emanating from Villarreal’s 

backpack. Officer Ellis asked Villarreal for consent to search his backpack, but Villarreal 

declined. Officer Ellis searched Villarreal’s backpack and discovered a baggie of marihuana and 

a partially smoked marihuana cigarette. Villarreal was charged with possession of marihuana. 

After his motion to suppress was denied, Villarreal pled no contest to the offense. Villarreal 

appeals the denial of his motion. 

MOTION TO SUPPRESS

We review a trial court’s order on a motion to suppress under a bifurcated standard, 

affording almost total deference to the trial court’s factual determinations. Amador v. State, 221 

S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 

1997). If the resolution of the issues turns on the evaluation of a witness’s credibility and 

demeanor, we afford the same level of deference to a trial court’s ruling on “application of law to 

fact questions,” or “mixed questions of law and fact.” Amador, 221 S.W.3d at 673 (internal 

quotes omitted). If not, we review the application of law to the facts de novo. See id. 

Routine traffic stops are investigative detentions that must be based on reasonable 

suspicion. Martinez v. State, 236 S.W.3d 361, 369 (Tex. App.—Fort Worth 2007, pet. ref’d, 

untimely filed) (citing Berkemer v. McCarty, 468 U.S. 420, 436 (1984)). These investigative 

detentions are governed by the two-pronged test in Terry v. Ohio, 392 U.S. 1 (1968). See id.

First, a court must determine whether the officer’s action was justified at its inception. Kothe v. 

State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). Second, the search and seizure must be 

reasonably related in scope to the circumstances that justified the stop. Id.
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In determining whether the officer’s action was justified at its inception under the first 

prong of Terry, a court must consider whether the testifying officer has pointed to “specific, 

articulable facts that, when combined with rational inferences from those facts, would lead him 

to reasonably conclude that a particular person actually is, has been, or soon will be engaged in 

criminal activity.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “These facts 

must amount to more than a mere hunch or suspicion.” Brother v. State, 166 S.W.3d 255, 257 

(Tex. Crim. App. 2005). 

Here, Officer Ellis testified that he observed Villarreal commit two traffic violations: 

riding a bicycle without required lights and running a stop sign. See TEX. TRANSP. CODE ANN.

§§ 551.101, 551.104(b)(1)(2) (West 2010). Because there is evidence to support the trial court’s 

finding that Officer Ellis had reasonable suspicion to detain Villarreal for violating traffic laws, 

Officer Ellis’s detention of Villarreal was justified at its inception. 

Next, in deciding whether the scope of the seizure is reasonably related to the 

circumstances that justified the stop, a court measures reasonableness in objective terms by 

examining the totality of the circumstances. Ford, 158 S.W.3d at 492; Kothe, 152 S.W.3d at 62–

63. Once an officer makes a valid stop for a traffic offense, the officer may search the suspect 

for evidence of any other offense for which the officer unexpectedly acquires probable cause 

while investigating or questioning the suspect. See Atwood v. State, 509 S.W.2d 342, 344 (Tex. 

Crim. App. 1974). 

Officer Ellis testified that Villarreal was wearing his backpack when he was patting down 

Villarreal. He also testified that he smelled burned marihuana emanating from Villarreal’s 

backpack as he was searching Villarreal’s person for weapons. During the legitimate detention 

of a defendant, the smell of marihuana may give an officer additional probable cause to justify a 
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search. See Razo v. State, 577 S.W.2d 709, 710–11(Tex. Crim. App. 1979); see also Aldridge v. 

State, 482 S.W.2d 171, 173–74 (Tex. Crim. App. 1972) (“[The] [o]fficer . . . having smelled the 

smoke of marihuana, [and] having seen what appeared to be a knife with a blade more than 5 1/2 

inches in length in plain view, . . . was justified in searching the automobile for marihuana . . . 

.”); Longoria v. State, 747 S.W.2d 50, 52 (Tex. App.—San Antonio 1988, no writ) (“Once 

appellant opened the back of the vehicle, the first officer and then the second officer smelled the 

odor of marijuana. Probable cause arose at that time for the officer to believe a crime had been 

or was being committed.”). Thus, Officer Ellis had probable cause to search the back pack for 

marijuana. See Razo, 577 S.W.2d at 710–11; Aldridge, 482 S.W.2d at 173–74; Longoria, 747 

S.W.2d at 52.

CONCLUSION

We, therefore, affirm the judgment of the trial court. 

Rebecca Simmons, Justice

DO NOT PUBLISH