### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00647- CR

Mario De Los San tos, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 391 ST JUDICI AL DISTRICT NO. D-1 0-0 567- SB , H ONO RAB LE B EN WO ODW ARD, JUDGE P RESIDING

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

A jury convicted appellant Mario De L os Santos of t h e o ffe nse of possession of

a co ntrolled substance, methamphetamine, in an amount of four g rams or more but l es s t h an
two hundred g rams. The district court rende red judgme nt on the verdic t and assessed punishment, 1
enha n ced by a prior conviction for the offe nse of possession of methamphetamine with intent

to deliver, at thirty y ear s’ imprisonment. I n a single issue on appea l, De L os Santos asser ts that the
district c ourt abused its discretion in deny ing his motion to suppr ess evidenc e. We w ill af firm the district court’s judg ment.

BACK GR OUND

At the hear ing on the motion to suppress, the district cou rt hear d evidenc e that on April 16, 2010, Depa

rtment of Public Safety Trooper J oel Callaway stopped a vehicle for speeding

.

See Tex. Health & Safety Code § 481.115(d). 1Callaway testified that the driver and sole occupa nt of the vehicle was identified as De L os Santos. Upon making contac t with De L os Santos, Callaway rec ounted, he “dete cted the odor of marihuana
in the vehicle.” Callaway added that t h e m ar i h u ana had a “burne d” smell to it. Callaway also
noticed that De L os Santos was “ac ting nervous” and “bre athing heavily ” and that his hands and
voice wer e “shaking .” Callaway asked De L os Santos to exit the vehicle and De L o s S an t o s complied. Callaway rec ounted that upon sear ching De L os Santos for wea pons, he found $4,900 in
cash on his pe rson, in the form of one-hundr ed-dollar bills. C allawa y further testified that he then
proce eded to sear ch the vehicle and that, upon sear ching it , h e fo u n d “a pink strawbe rrish cry stal
substance and a clea

r bag g y in the cente r console,” along with a walle t co n t aining an additional $352.00 in cash and “a g lass pipe with methamphetamine residue that was located betwee n the

cente r console and the driver’ s seat.” On cross-e x amination, Callaway acknow ledg ed that he found

n o m ar i huana or marihuana para pherna lia inside the vehicle, nor did he see De L os Santos thro w
any thing out of the vehicle a

t any time.
Other witnesses at the suppression hear ing included Depa rtment of Public Safety
Offic er Chris Dale, who sear ched the vehicle afte r it was impounded and testified that he found no marihuana inside the vehicle; and De L os Santos, who claimed that there was no odor of marihuana
in the vehicle at the time of the traff ic stop, denied that he had smoked marihuana prior to the stop, and claimed that “to [hi s] kn o wl edge, nobody has ever smoked marihuana in [hi s] vehicle.” 2

An additional witness, L isa Golden, was called by the defe nse to testify that a hair-f ollicle 2 sample take n from De L os Santos se vera l da y s afte r the traff

ic stop tested neg ative for marihuana

. Howeve r, afte r Golden h a d testified to that fac t, the district court excluded the documentar y evidenc e on which Golden’s testimony was based, as the district court conclude d that it had not been proper ly authentica ted.
2Additionally , a video rec ording of the traff ic stop was admitted into evidenc e. On the rec ording , prior t o t h e s ea rc h of the vehicle, Callaway can be hear d asking De L os Santos whether he had
smoked “we ed,” to which De L os Santos responde d that he had not. Shortly there afte r, as Callaway
proce eded to sear ch De L os Santos for wea pons, De L os Santos can be hear d asking Callaway , “Do
y ou think I ’m smoking we ed? ” Callawa y can be hear d reply

ing, “ I don’t know.”
At the conclusion of the suppression hear ing, De L os Santos claimed that Callaway

was ly ing reg arding the smell of marihuana inside the vehicle and that, conseque ntly , Callaway had no probable cause to se arc h the vehicle w ithout a warr ant. The district c ourt denied the motion to suppress and the case proceede d to trial. At the conclusion of t ri al , t h e jury found De L os Santos
g uilty of possession of methamphetamine as char g ed and the district court rende red judgme nt on the
verdic t and assesse d punishment as noted above . This appea l followed.

STANDARD OF REVIEW
We revie w a trial court’s ru l i n g o n a m o t i o n to suppress for abuse of discre tion. 3
We are to view the rec ord “in the light most favor able to the trial court’s deter mination, and the judgme nt will be reve rsed only if it is arbitra ry , unrea sonable, or ‘outside the zone of rea sonable disag ree m en t.’” “We will sustain the lower court’s ruling if it is rea sonably supported by the 4

rec ord and is corr ect on any theory of law applicable to the case .” “The appellate court must apply 5

State v. Story , 445 S.W .3d 72 9 , 7 3 2 (Tex. Crim. App. 2014) (citing State v. Dixon , 3 206 S.W .3d 587, 590 (Tex. Crim. App. 2006)). Id

. (quoting Dixon , 206 S.W .3d at 590); see Montgomery v. State , 810 S.W .2d 372, 391-92 4 (Tex. Crim. App. 1991) (op. on re h’g ).
Di xon , 206 S.W .3d at 590 (citing Romero v. State , 800 S.W .2d 539, 543 (Tex. Cr i m
. 5 App. 1990)). 3a bifurca ted standard of revie w, g iving almost total defe renc e to a trial co urt’s deter mination of
h i s t o ri c fa cts and mix ed questions of law and fac t that rely upon the cre dibilit y of a witness, b u t apply ing a de novo standard of revie w t o pure questions of law and mix ed questions that do not depend on c redibility

deter minations.” 6

ANALYSIS
I n his sole issue on appea l, De L os Santos asser ts that the district co u rt ab u sed its discretion in deny ing his motion to suppr ess. Howeve r, rathe r than attack the leg al basis of the
district court’s decision, specific ally its conc lusion that the odor of m arihua na provided Callaway
with probable cause to sear ch the vehicle, De L os Santos claims that the district court did not act in

a “neutr al and detac hed” manner in evalua ting the cre dibilit y of Trooper Calloway ’s testimony that
he had smelled marihuana inside the vehicle. As support for this contention, De L os Santos points to the following exchang e during the par ties’ closing arg uments at the suppre ssion hearing :
[P rosec utor]: Your Honor, the defe nse has conce ded that the sear ch without

a war ran t b as ed upon the smell of marihuana is leg al and proper
. As I understand, his arg ument today is they just don’t believe the trooper. [The Court] : That ’s ri gh t , an d it’s whether or not the Court believes Mr.

Callaway is ly ing. [P rosec utor]: And based on th e cre dibilit y of the highw ay patrol and his

actions, which the Court was allowed to revie w b y b o th his testimon y and demea

nor in court, and by the Court’s observa tions on the videotape. I t is very obvious to note that Trooper Callaway and the Def endant had some discussion

Martinez v. State , 348 S.W .3d 919, 922-23 (Tex. Crim. App

. 2 0 11) (citing Guzman 6 v. State , 955 S.W .2d 85, 87-89 (Te x . Crim. App. 1997)).
4reg ard i ng marihuana almost as soon as he g ot out of the vehicle, and T ro o per Callaway never wave red in his testimony that within 40 seconds of having made contac t with Mr. De L os Santos, he had decide d he was g oing to sear ch the vehicle.

. . . . Now, the defe nse, and the Def endant, throug h his testimony , say s “I wasn’t smoking marihuana .” He say s that on the tape at some point. W h o was smoking the marihuana is not all that important. I t’s just that the offi ce r detec ted the odor of the marihua

na coming from the ve hicle.
I don’t know i f t he Defenda nt had a buddy in the vehicle 30 minutes befor e the stop that had sm o k ed a j o int. I t doesn’t rea lly matter. I f t he odor linge red and the officer detecte d it, it g ave hi m t h e probable cause under the automobile exception and his training to g o ahea d and sear ch that vehicle for c ontraba

nd, which he f

ound. . . . [The Court] : All rig ht. Thank y ou. Any thing e lse, [defense c ounsel]? [Defense counsel]: Well, Your Honor, we believe the v i d eo s p ea k s for itself in

that it was 12 minutes into this encounte r befor e the Trooper Callaway told Mr. De L os Santos that he smelled marihuana

. Up until that p oint, the trooper was asking him about his marihuana possess i o n in the past, he was asking him if he drank alcohol, he was ru n ning a criminal history chec k on him. [The Court] : All of which is g ood for his conduc t, would y ou ag ree ? [Defense counsel]: Bu t t h e p ro b ab l e cause fo r t h e s t o p wa s s p ee d i n g, Yo u r

Honor, and he had him out of the truck within one m inute afte r appr oaching the vehicle

. [The Court] : I s it y our contention that the Trial Court is to second g uess the

office r in the field and establish Court order ed g uidelines how they are supposed to conduct themse lves? I am supposed to second g uess him? [Defense counsel]: No, Your H onor.

5[The Court] : I am supposed to tell him, “No, y ou didn’t smell ma rihuana ”? [Defense counsel]: Well, what we nee d to look at i s all the ot her factor s. There

was no mar ihuana f

ound— [The Court] : And the very fac t that he waited some 12 minutes before he

started the sear ch leads me to believe that he was doing a very g ood job, that he was doing what he was supposed to do with his training

. I f he had pulled him out and started sear ching immediately , I would have been much more suspicious about this searc h. [Defense counsel]: Well, he did pull him out and did a [] fri s k o n h i m , I mean, without— [The Court] : He is allowe d to. [Defense counsel]: Well, without articula ting any suspicio n fo r wh y he wa nted him to do that? [The Court] : That’s corr ect

. I am n o t go i n g to tell this office r how he is

supposed to conduct his traf fic stops or sea

rche s.

Acc ording to De L os Santos, the above comments by the district court demonstrate that it was biased
ag ainst him and unduly

defe rential towa

rd the a rre sting off

icer

. “Due proce ss requir es a neutra l and detached hear ing body or officer.” Howeve r, 7 “[a]bsent a clea

r showing of bias, we presume a trial court is neutra l and detac hed.” We cannot 8
conclude that the above comments or any thing else in the rec ord demons t ra t e a “c lear showing
of bias” a g ainst De L os Santos. As the S tate observes i n its brief, “[n] owher e does the trial judg e
state he is ref

using to hear o r co n s i d er t estimony put forth by appellant on the issue at hand,”

Brumit v. State , 206 S.W .3d 639, 645 (Tex. Crim. App. 2006) (citing Gagnon v. Scarpelli , 7 411 U.S. 778, 786 (1973)).

T a pia v. State , 462 S.W .3d 29, 35-36 (Tex. Crim. App. 2015) (citing id .; Thomp s o n 8 v. State , 641 S.W .2d 920, 921 (Tex. Crim. App. 1982)). 6i.e., whether the office r smelled t h e o d o r o f burnt marihuana inside the vehicle. Rather, the

district court’s comments wer e mere ly to the eff ect that it found unconvincing De L o s S an t os’s proposed infere nces that the office r should be deeme d not cre dible based on the sequenc e and timing
of events during the sear ch. The district c ourt, as the finder of fac t at the suppression hear ing, was entitled to weig h the evidenc e prese nted and make cre dibilit y deter minations and infere nces
reg arding that evidenc e, including finding cre dible the offic er ’s t es t imony that he had smelled
marihuana

inside the vehicle

. Fur

ther evidence in support of t he dis trict court’s f inding include d 9 Callaway ’s testimony that he had been a highw ay patrolman fo r eig ht y ear s, that he had rec eived
instruction in the detec tion and id en t i fi ca t i on of differ ent ty pes of drug s, including marihuana , and that he wa s familiar with the smell of mar ihuana a nd had enc ountere d the smell of marihua na “many times.” I n contra st, De L os Santos prese nted no evidenc e controve rting Callaway ’s acc ount of his backg round, training , or ability to identify the smell of marihuana

. On this rec ord, we cannot conclude that the district court abused its discretion in cre diting the office r’s testimony that he had
smelled marihuana inside the vehicle and thus in deter mining that the office r had probable cause to

sear ch the ve hicle on that basis. 1 0

See W ilson v. State , 311 S.W .3d 452, 458 (Tex. Crim. App. 2010). 9
See Keehn v. State , 279 S.W .3d 330, 335-36 (Tex. C ri m
. Ap p
. 2 009); Neal v. State , 1 0 256 S.W .3d 2 6 4, 282 (Tex. Crim. App. 2008); Luera v. State , 561 S.W .2d 497, 498 (Tex. Crim. App. 1978); Dicke

y v. State , 96 S.W .3d 610, 613 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Small v. State , 977 S.W .2d 771, 774-75 (Tex. App.—For t Worth 1998, no pet.); see also Robinson v. State , No. 01-10-00727- CR, 2012 WL 1454451, at *4 (Tex. App.—Houston [1st Dist.] Apr. 26, 2012, pet. ref

’d) (mem. op, not desig nated for publication) (“[T]he discovery of m arihua na is not nece ssary for a trial court to find that an office r had probable cause to sear ch a vehicle based on the odor of marihuana .”); W illiams v. State , No. 14-01-01250- CR, 200 2 WL 31426293, at *2 (Tex. App.—Houston [14t h Dist.] Oct. 10, 2002, no pet.) (not desig nated for publi ca t i o n )
7We overrule De L os Santos’s sole issue on appea l.

CONCLUSION
We affir m the judgme nt of conviction.

__________________________________________ Bob Pembe rton, J ustice
Be fore Chief J ustice Rose, Jus tices Pemberton a nd Bour land
Affir med
Filed: Jul y

22, 2016
Do Not Publish

(“A lthough no mar ihuana wa s found, Deputy Palermo sm elled marihuana e manating from the c ar

. . . . Acc epting the deputy ’s fac ts a s true, the odor of burning marihuana provided probable cause to searc h the ca

r.”)

.

8