IN THE

TENTH COURT OF APPEALS

No. 10-20-00098-CR

RANDY DON JOHNSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 20172170C2

MEMORANDUM OPINION

The State charged Randy Don Johnson with the offense of possession of a 

controlled substance, cocaine, with intent to deliver, in an amount of 200 grams or more 

but less than 400 grams. At trial, Appellant was present for jury selection and when the 

jury was seated, but he was not show up for the remainder of his trial; the trial continued 

in Appellant’s absence. After the jury found Appellant guilty, it assessed Appellant’s 

punishment at confinement for life. Subsequently, Appellant was found in Dallas and 
Johnson v. State Page 2

was returned to McLennan County. After Appellant was returned to McLennan County, 

he appeared before the trial court, and the trial court sentenced him in accordance with 

the verdict of the jury. We affirm.

At about 9:00 p.m. on the night of the offense made the subject of this appeal, Waco 

police were involved in a vehicle pursuit. The police located the vehicle and began to 

look for someone who had left the vehicle.

Waco Police Department Patrol and Canine Officer Vern Darlington was on duty 

that night, but he was not directly involved in the pursuit. However, Officer Darlington 

was patrolling in the immediate area. He testified that it was not uncommon for someone 

who had “bailed” from a pursued vehicle to phone someone to come and pick them up. 

In this manner, the driver of the pursued vehicle could, in theory, get out of the area.

 When Officer Darlington looked down an alley just a block away from where the 

other officers had found the pursued vehicle, he saw a vehicle parked half on the 

alleyway and half off the alleyway. He could see a glow from the dash lights in the 

parked car; that indicated to him that the vehicle was running. Officer Darlington could 

also see that the driver’s side window was halfway down, and he also saw movement in 

the vehicle.

Officer Darlington drove into the alley and pulled alongside the parked vehicle. 

The driver, later identified as Appellant, attempted to hide his face behind the B-pillar of 

the vehicle. As Officer Darlington rolled down the window of his patrol vehicle and the 
Johnson v. State Page 3

wind blew through it, he could smell the slight odor of marijuana; there is no indication 

that any other vehicles or people were at that location at that time.

When Officer Darlington asked Appellant whether everything was okay, 

Appellant gave him a blank stare and said nothing; he appeared nervous. When asked a 

second time, Appellant “kind of stuttered” and answered, “yes.” Officer Darlington 

asked Appellant if he could talk to him “for a second.” As Officer Darlington was getting 

out of his patrol vehicle, Appellant began to quickly drive away. Officer Darlington 

activated his emergency lights and yelled at Appellant to stop, and he did.

As Appellant was getting out of his vehicle, Officer Darlington noticed that 

Appellant was bent over and “messing around” in his waist area. Officer Darlington also 

noticed that Appellant had a black object in his hand. Officer Darlington thought that 

Appellant might have a gun and the officer “drew down on him.” At that point, 

Appellant “threw his hands up” and began to listen to Officer Darlington’s commands. 

It turned out that the object that Appellant was holding was a telephone; he 

dropped it. He had another telephone, and he threw it across the street into the backyard 

of a residence.

Officer Darlington testified that when Appellant got out of his vehicle, the smell 

of marijuana was “overwhelming.” He was certain that it was coming from Appellant’s 

vehicle. Further, when Officer Darlington was detaining Appellant, the odor was “all 

over—the odor was all over him as well as coming from the vehicle.” Sergeant Mitzel 
Johnson v. State Page 4

with the Waco Police Department came to the scene. He also noticed a strong odor of 

marijuana when he went up to Appellant’s vehicle.

When Appellant got out of his vehicle, Officer Darlington also noticed that 

Appellant’s front pockets were bulging with cash to the point that the cash was sticking 

out of Appellant’s pockets. Appellant had $4,539 cash, in various denominations, in his 

pockets. During a subsequent search of Appellant’s vehicle, officers found an additional 

stash of cash in the trunk of Appellant’s vehicle. The total amount of cash found by the 

officers amounted to about $9,600 in various denominations. Officers also found 232.66 

grams of powder cocaine, an undetermined amount of crack cocaine, and scales that 

contained cocaine residue.

In his first issue on appeal, Appellant maintains that the trial court erred when it 

denied Appellant’s motion to suppress because the initial stop was not based on 

reasonable suspicion.

A trial court's ruling on a motion to suppress is reviewed for an abuse of discretion. 

Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). In reviewing a ruling on a 

motion to suppress, we apply a bifurcated standard of review. Brodnex v. State, 485 

S.W.3d 432, 436 (Tex. Crim. App. 2016); Martinez, 348 S.W.3d at 922–23. We afford almost 

total deference to the trial court's determination of historical facts and of mixed questions 

of law and fact that turn on the weight or credibility of the evidence. Brodnex, 485 S.W.3d 

at 436; Martinez, 348 S.W.3d at 922–23. We review de novo the trial court's determination 
Johnson v. State Page 5

of pure questions of law and mixed questions of law and fact that do not depend on 

credibility determinations. Brodnex, 485 S.W.3d at 436; Martinez, 348 S.W.3d at 923.

Under Terry v. Ohio, 392 U.S. 1 (1968), the police can stop and briefly detain a 

person for investigative purposes if they have a reasonable suspicion supported by 

articulable facts that criminal activity may be afoot. United States v. Sokolow, 490 U.S. 1, 7 

(1989) (citing Terry, 392 U.S. at 30); Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim.

App. 2011). Reasonable suspicion exists if the officer has specific, articulable facts that, 

when combined with reasonable inferences from those facts, would lead him to 

reasonably conclude that a person is, has been, or soon will be engaging in criminal 

activity. Derichsweiler, 348 S.W.3d at 914. This is an objective standard that disregards 

the subjective intent of the officer making the stop and looks solely to whether an 

objective basis for the stop exists. Id. It also looks to the totality of the circumstances; 

those circumstances may all seem innocent enough in isolation, but if they combine to 

reasonably suggest the imminence of criminal conduct, an investigative detention is 

justified. Id. The relevant inquiry is not whether certain conduct is innocent or criminal, 

but the degree of suspicion that attaches to noncriminal acts. Woods v. State, 956 S.W.2d 

33, 38 (Tex. Crim. App. 1997). Whether the totality of the circumstances is sufficient to 

support an officer's reasonable suspicion is a legal question that we review de novo. See

Madden v. State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007).
Johnson v. State Page 6

The facts invoked to justify an investigative detention must support more than a 

mere hunch or good faith intuition that criminal activity is afoot. Derichsweiler, 348 

S.W.3d at 916. To support a finding of reasonable suspicion, the specific facts articulated 

by the detaining officer must show some unusual activity, some evidence that connects 

the person being detained to the unusual activity, and some indication that the unusual 

activity is related to a crime. Martinez, 348 S.W.3d at 923. However, there is no 

requirement that the officer suspect that a particular offense is being committed; it is 

enough if the facts suggest that something of an apparently criminal nature is brewing. 

Derichsweiler, 348 S.W.3d at 916–17.

We will review the trial court’s ruling against the backdrop of those standards. 

We will outline the specific articulable facts available to Officer Darlington on the night 

of the offense.

As we have pointed out earlier, on the night of this offense, Officer Darlington was 

aware that other Waco police officers were pursuing a vehicle; he was in the area. It was 

not uncommon for the driver of a vehicle being pursued to “bail,” run from the vehicle, 

and then to be picked up by someone the driver had called, and to leave the area.

Officer Darlington noticed a vehicle parked in an alley about a block away from 

where the pursuit ended. The vehicle was parked halfway on the alleyway and halfway 

off the alleyway. He saw a glow from the dash lights in the vehicle and saw movement 
Johnson v. State Page 7

from within the vehicle. The glow from the dash lights indicated to him that the engine 

on the vehicle was running.

Officer Darlington pulled into the alley and drove up next to the vehicle. The 

driver’s side window of the vehicle was halfway down. Appellant leaned his head back 

and hid his face behind the B-pillar. When Officer Darlington rolled down the window 

on his patrol vehicle, he smelled a slight odor of marijuana. There is no indication that 

anyone else was at that location at that time.

When Officer Darlington asked Appellant whether he was okay, Appellant did 

not respond but just looked at him with a blank stare and said nothing. When asked a 

second time, Appellant “kind of stuttered” and answered, “yes.” Appellant appeared to 

be nervous. Officer Darlington asked Appellant if he could talk to him “for a second.” 

As Officer Darlington was getting out of his patrol vehicle, Appellant began to quickly 

drive away. Officer Darlington activated his emergency lights and yelled at Appellant to 

stop, and he did.

As Appellant got out of his vehicle, Officer Darlington noticed that Appellant’s 

pockets were bulging with so much cash that the money was sticking out of his pockets. 

Appellant began to “mess with” his waist area. Officer Darlington saw something black 

in Appellant’s hand and believed that Appellant might have a weapon and he “drew 

down on” Appellant. However, Appellant had two cell phones; he dropped one and 

threw the other into someone’s backyard. When Appellant and Officer Darlington were 
Johnson v. State Page 8

both out of their vehicles, the odor of marijuana was “all over—the odor was all over him 

as well as coming from the vehicle.”

The facts that we have laid out objectively presented Officer Darlington with 

specific, articulable facts that, when combined with reasonable inferences from those 

facts, would lead him to reasonably conclude that Appellant is, has been, or soon would

be engaging in criminal activity. The totality of the circumstances presented to Officer 

Darlington reasonably suggested the imminence of criminal conduct and reflected more 

than a mere hunch or good faith intuition that criminal activity was afoot.

The trial court did not abuse its discretion when it overruled Appellant’s motion 

to suppress. We overrule Appellant’s first issue on appeal.

In his second issue on appeal, Appellant claims that the trial court erred when it 

refused to instruct the jury under Article 38.23 of the Texas Code of Criminal Procedure. 

Article 38.23(a) provides, in relevant part, “In any case where the legal evidence raises an 

issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, 

that the evidence was obtained in violation of the provisions of this Article, then and in 

such event, the jury shall disregard any such evidence so obtained.” TEX. CODE CRIM.

PROC. ANN. art. 38.23 (West).

Appellant relies on Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) to 

support his claim that, because there was an issue as to the presence of the odor of 

marijuana, the trial court should have given his requested jury instruction. In Madden, 
Johnson v. State Page 9

the Court of Criminal Appeals set forth three factors that must be established before an 

Article 38.23 instruction is required: “(1) The evidence heard by the jury must raise an 

issue of fact; (2) The evidence on that fact must be affirmatively contested; and, (3) That 

contested factual issue must be material to the lawfulness of the challenged conduct in 

obtaining the evidence.” Id. at 510.

Three witnesses before the jury were asked about the smell of marijuana. 

Although not included in his initial report, Officer Darlington testified as to the original 

smell of marijuana. He also testified about the strong odor of marijuana when Appellant 

was out of his vehicle. He testified more than once that the odor was not only on 

Appellant’s person but was also coming from Appellant’s vehicle. Sergeant Mitzel 

testified that he smelled a strong odor of marijuana when he first approached Appellant’s 

vehicle. The only other person who was asked about the smell of marijuana was Jennifer 

Husack, the crime scene technician. She did not smell the odor of marijuana, but she 

testified that she would not have smelled it due to the amount of time that had elapsed 

between the initial stop and the time that she arrived on the scene.

We do not agree that there was evidence presented to the jury sufficient to raise a 

fact issue that required the trial court to instruct the jury under Article 38.23. We overrule

Appellant’s second issue on appeal.

We affirm the judgment of the trial court.
Johnson v. State Page 10

JIM R. WRIGHT

Senior Chief Justice

Before Chief Justice Gray,

Justice Smith, and 

Justice Wright1

Affirmed

Opinion delivered and filed July 20, 2022

Do not publish

[CRPM]

1 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by 

assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.