Opinion
NO. 02-15-00354-CR
03-24-2016
MICHAEL JERROD BOGAN APPELLANT v. THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NO. 1372714D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
After finding Appellant Michael Jerrod Bogan guilty of the offense of possession of a controlled substance of four grams or more, but less than two hundred grams, a jury assessed his punishment at seven years' confinement, and the trial court sentenced him accordingly. See Tex. Health & Safety Code Ann. § 481.115(a), (d) (West 2010). Bogan perfected this appeal; he raises two issues asserting that the trial court erred by denying his motion to suppress and by not submitting an article 38.23(a) instruction to the jury. See Tex. Code. Crim. Proc. Ann. art. 38.23(a) (West 2005). We will affirm.
II. FACTUAL BACKGROUND
On June 4, 2014, Jeremy Prescott, an officer working in the Fort Worth Police Department's narcotics division, was surveying an apartment where he believed narcotics were being sold. Bogan was observed leaving the apartment and driving away in a vehicle. Officer Prescott followed Bogan in an unmarked police car. Officer Prescott observed Bogan commit two traffic violations—failing to signal at least one hundred feet prior to making a turn and making an improper right turn at an intersection by turning from the right-hand lane into the left-hand lane—and relayed those violations to a nearby patrolman, Officer Timothy Fornash. See Tex. Transp. Code Ann. § 545.101(a), .104(b) (West 2011).
Officer Fornash then drove toward the location of Bogan's vehicle, and he observed Bogan's vehicle make a turn without using a turn signal at least one hundred feet prior to the turn. See id. § 545.104(b). Based on Bogan's traffic violations—the one Officer Fornash observed first-hand, together with the ones relayed to him by Officer Prescott—Officer Fornash stopped Bogan's vehicle. When Officer Fornash approached Bogan's vehicle, the driver's-side window was rolled down. Officer Fornash smelled the odor of "fresh" marijuana emanating from the vehicle. Officer Fornash asked Bogan why his vehicle smelled of marijuana, and Bogan told Officer Fornash that he smokes marijuana. Bogan, however, told Officer Fornash that he did not have any marijuana with him.
Officer Mitchell Ellis, who was backing up Officer Fornash, also testified that he smelled marijuana as he approached Bogan's vehicle and when he opened the door to Bogan's vehicle.
Because Officer Fornash smelled marijuana coming from Bogan's vehicle, he searched the vehicle. During the search, Officer Fornash found a small digital scale with white residue on it. When asked about the white residue, Bogan told Officer Fornash that he smoked "primos"—marijuana cigarettes laced with cocaine. Officer Fornash then arrested Bogan for possession of drug paraphernalia. Thereafter, Officer Fornash searched Bogan's person as a search incident to arrest and found a bag containing 10.122 grams of crack cocaine. No marijuana was found on Bogan's person or in his vehicle.
III. BOGAN'S MOTION TO SUPPRESS
In his first issue, Bogan argues that the trial court erred by denying his motion to suppress because the arresting officers did not have probable cause to search his vehicle.
The State argues that Bogan did not preserve this complaint in the trial court. The State contends that Bogan did not allege in his motion to suppress that the officers lacked probable cause to search his vehicle. Bogan's motion to suppress stated that "Officer Fornash did not witness or observe any reason to give him probable cause to stop [Bogan]." It also complained that Officer Fornash performed a warrantless and illegal search. We hold that Bogan has preserved this complaint.
A. The Law
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. 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). We give almost total deference to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002).
The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 558 U.S. 1093 (2009). A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 672-73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
Whether a search is reasonable is a question of law that we review de novo. Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004). Reasonableness is measured by examining the totality of the circumstances. Id. at 63. It requires a balancing of the public interest and the individual's right to be free from arbitrary detentions and intrusions. Id. A search conducted without a warrant is per se unreasonable unless it falls within one of the "specifically defined and well established" exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.), cert. denied, 540 U.S. 1004 (2003); see Best v. State, 118 S.W.3d 857, 862 (Tex. App.—Fort Worth 2003, no pet.).
The automobile exception to the warrant requirement permits police officers to conduct a warrantless search of a vehicle if it is "readily mobile and there is probable cause to believe that it contains contraband." Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009). Probable cause exists when there is a "fair probability" of finding inculpatory evidence at the location being searched. Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008), cert. denied, 555 U.S. 1154 (2009). The smell of marijuana alone is sufficient to constitute probable cause to search a defendant's person, vehicle, or objects within the vehicle. Small v. State, 977 S.W.2d 771, 774-75 (Tex. App.—Fort Worth 1998, no pet.); see Luera v. State, 561 S.W.2d 497, 498 (Tex. Crim. App. 1978) ("[P]robable cause existed when the odor of marihuana was discovered."); Dickey v. State, 96 S.W.3d 610, 613 (Tex. App.—Houston [1st Dist.] 2002, no pet.) ("Texas courts have found probable cause to search based solely on the smell of marihuana."). Probable cause can exist based solely on the smell of marijuana even when marijuana is later not discovered during the search. See Robinson v. State, No. 01-10-00727-CR, 2012 WL 1454451, at *4 (Tex. App.—Houston [1st Dist.] Apr. 26, 2012, pet. ref'd) ("[T]he discovery of marijuana is not necessary for a trial court to find that an officer had probable cause to search a vehicle based on the odor of marijuana."); Williams v. State, No. 14-01-01250-CR, 2002 WL 31426293, at *2 (Tex. App.—Houston [14th Dist.] Oct. 10, 2002, no pet.) ("Although no marijuana was found, Deputy Palermo smelled marijuana emanating from the car . . . . Accepting the deputy's facts as true, the odor of burning marijuana provided probable cause to search the car.").
B. Application of the Law to the Facts
Here, Officer Fornash testified that when he approached Bogan's vehicle he smelled marijuana coming from it. Officer Ellis, the officer backing up Officer Fornash, also testified that he smelled marijuana as he approached Bogan's vehicle and when he opened the door to Bogan's vehicle. We hold that the smell of marijuana emanating from Bogan's vehicle gave Officer Fornash probable cause to search Bogan's vehicle. See Luera, 561 S.W.2d at 498; Dickey, 96 S.W.3d at 613; Small, 977 S.W.2d at 774-75.
Bogan contends that Officer Fornash did not testify that the smell of marijuana emanated from Bogan's vehicle rather than the surrounding area. Officer Fornash specifically testified, however, that he "could smell the odor of fresh marijuana coming from [Bogan's] vehicle." --------
While Bogan attempts to attack the trustworthiness of the officers' testimony by pointing to the fact that marijuana was not ultimately found in Bogan's vehicle, we give almost total deference to the trial court's rulings on application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. See Amador, 221 S.W.3d at 673; Estrada, 154 S.W.3d at 607; Johnson, 68 S.W.3d at 652. Based on the record before us, and giving due deference to the trial court's credibility determinations concerning the officers' testimony, we hold that the trial court did not err in denying Bogan's motion to suppress. We overrule Bogan's first issue.
IV. BOGAN'S REQUEST FOR AN ARTICLE 38.23(a) INSTRUCTION
In his second issue, Bogan argues that the trial court erred by denying his request for a jury instruction under code of criminal procedure article 38.23(a). See Tex. Code Crim. Proc. Ann. art. 38.23(a).
A. The Law
"[A]ll alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court." Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine whether error occurred; if error did not occur, our analysis ends. Id.
Article 38.23(a) of the code of criminal procedure provides:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.Tex. Code. Crim. Proc. Ann. art. 38.23(a).
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.
A defendant's right to the submission of a jury instruction under article 38.23(a) is limited to disputed issues of fact that are material to the defendant's claim of a constitutional or statutory violation that would render evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007). To be entitled to an article 38.23(a) instruction, a defendant must show that (1) the evidence heard by the jury raised an issue of fact, (2) the fact was contested by affirmative evidence at trial, and (3) the fact is material to the lawfulness of the challenged conduct in obtaining the evidence. Id. at 510. When these elements are not met, a trial court is not required to include an article 38.23(a) instruction. Id.; see Broussard v. State, 434 S.W.3d 828, 835 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (holding trial court did not err in refusing article 38.23(a) instruction where there was no affirmative evidence before the jury that the officers did not smell marijuana); Shpikula v. State, 68 S.W.3d 212, 217 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (holding trial court did not err in refusing article 38.23(a) instruction when defendant did not present affirmative evidence raising an issue of material fact).
B. Application of the Law to the Facts
Here, there was no affirmative evidence presented to contradict Officer Fornash's testimony that he smelled marijuana emanating from Bogan's vehicle. Indeed, Officer Fornash testified that Bogan acknowledged the smell of marijuana, explaining that it was due to the fact that he smokes marijuana. Bogan did not testify at trial, nor did he call any witnesses. While Bogan's attorney briefly cross-examined Officer Fornash about the smell of marijuana coming from Bogan's vehicle, on cross-examination Officer Fornash continued to maintain that he had smelled marijuana emanating from Bogan's vehicle. See Shpikula, 68 S.W.3d at 217 (holding no issue of disputed fact for purposes of article 38.23(a) instruction when defense counsel cross-examined deputies but did not impeach their testimony); see also Victor v. State, 995 S.W.2d 216, 221 (Tex. App.—Houston [14th Dist.] 1999, pet ref'd) ("Appellant's cross-examination of the officers did not raise a fact issue on the right to arrest.").
As pointed out by the State, the mere fact that Officer Fornash did not find marijuana in Bogan's vehicle—while being affirmative evidence that Bogan did not possess marijuana at the time of the search—is not affirmative evidence that Officer Fornash did not smell marijuana. See Broussard, 434 S.W.3d at 834-35 (holding that just because cigar removed from defendant's vehicle did not smell like marijuana or contain marijuana, those facts did not provide evidence that the officers did not smell marijuana). Because there was no affirmative evidence to contradict Officer Fornash's testimony that he smelled marijuana emanating from Bogan's vehicle, the trial court did not err in refusing Bogan's request for an article 38.23(a) instruction. See Madden, 242 S.W.3d at 509-10. We overrule Bogan's second issue.
V. CONCLUSION
Having overruled Bogan's two issues, we affirm the trial court's judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE PANEL: WALKER, GABRIEL, and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: March 24, 2016