11th Court of Appeals
Eastland, Texas
Opinion
William M. Bedford
Appellant
Vs. No. 11-02-00025-CR -- Appeal from Harris County
State of Texas
Appellee
Appellant pleaded guilty to the misdemeanor offense of possession of marihuana pursuant to a plea agreement. The trial court assessed his punishment at confinement in the Harris County Jail for a term of 50 days. Appellant presented a motion to suppress evidence to the trial court prior to the entry of his guilty plea. He attacks the trial court=s denial of the motion to suppress in his sole issue on appeal. We affirm.
In reviewing a trial court's ruling on a motion to suppress, appellate courts must give great deference to the trial court's findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App.1997). We must afford the same amount of deference to the trial court's rulings on Amixed questions of law and fact,@ such as the issue of probable cause, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Guzman v. State, supra at 89. Appellate courts, however, review de novo “mixed questions of law and fact” not falling within the previous category. Guzman v. State, supra at 89. When faced with a mixed question of law and fact, the critical question under Guzman is whether the ruling "turns" on an evaluation of credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 773 (Tex.Cr.App.1998). A question "turns" on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue. Loserth v. State, supra. We must view the record in the light most favorable to the trial court's ruling and sustain the trial court's ruling if it is reasonably correct on any theory of law applicable to the case. Guzman v. State, supra.
The arresting officer testified that he was working as a security officer in a private parking lot of a night club when the incident in question occurred. He observed appellant, a frequent customer of the club, pull into the parking lot. Appellant subsequently began arguing with the parking lot attendant with respect to whether or not appellant had to pay to park in the lot. The arresting officer was standing approximately 20 feet away during this argument. The officer described appellant as being very upset, abusive, hostile, and combative during this confrontation. The officer instructed appellant that he needed to calm down and that he would be arrested if he did not do so. Appellant then directed his verbal assault on the officer whereupon the officer advised appellant that he was under arrest. Appellant ignored the officer=s instruction by attempting to get back inside of his car. The officer then approached the vehicle to place appellant under arrest. The officer testified that he smelled burnt marihuana near the car as he placed appellant in custody. The officer subsequently found marihuana in a door pocket on the driver=s door.
Appellant argues on appeal that the marihuana was seized as a result of an improper inventory search. The State contends that the seizure was the result of a lawful search incident to arrest. The disputed positions are the result of a discrepancy in the officer=s testimony regarding the first time he detected the smell of burnt marihuana and the type of search he was conducting at the time marihuana was found. As per the authorities cited above, we must presume that the trial court resolved the discrepancies consistent with the court=s ruling. Furthermore, we must defer to the trial court=s determination regarding any discrepancies in the officer=s testimony. We conclude that the record supports the trial court=s implied finding that a lawful search incident to arrest occurred.
TEX. CODE CRIM. PRO. ANN. art. 14.01(b) (Vernon 1977) provides that a peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. An officer must have probable cause to arrest a defendant without a warrant. See State v. Ballard, 987 S.W.2d 889, 892 (Tex.Cr.App.1999). Once he has probable cause to arrest, an officer may search the passenger compartment of a vehicle as a search incident to arrest. See State v. Ballard, supra at 892. Probable cause for an arrest exists where, at that moment, facts and circumstances within the knowledge of the arresting officer, and of which he has reasonably trustworthy information, would warrant a reasonably prudent person in believing that a particular person has committed or is committing a crime. See State v. Ballard, supra at 892.
The arresting officer testified that he arrested appellant for violating a local ordinance prohibiting abusive language.[1] The State argues on appeal that appellant was also subject to arrest for disorderly conduct. A person commits the offense of disorderly conduct if he intentionally and knowingly uses abusive, indecent, profane, or vulgar language in a public place and if the language by its very utterance tends to incite an immediate breach of the peace. TEX. PENAL CODE ANN. ' 42.01(a)(1) (Vernon Supp. 2002). In order to pass constitutional muster, the offensive words must amount to Afighting words.@ Ross v. State, 802 S.W.2d 308, 315 (Tex.App. B Dallas 1990, no pet=n). Fighting words are only those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. Ross v. State, supra at 314-15. The issue of whether particular words constitute fighting words is a question of fact. State v. Rivenburgh, 933 S.W.2d 698, 701 (Tex.App. B San Antonio 1996, no pet=n).
The arresting officer testified that he observed appellant argue with the parking lot attendant in a very abusive and combative manner. Appellant used the words m----rf----r and b--ls--t in arguing with the attendant and the arresting officer. Appellant refused to calm down when instructed to do so and in spite of being warned that he would be arrested if he did not stop. We conclude that the trial court was justified in determining that a prudent man would believe that appellant had committed the offenses of disorderly conduct and use of abusive language.
Moreover, it is well established that a warrantless search of an automobile is not unreasonable under the fourth amendment when there is probable cause to believe the vehicle contains contraband or evidence of a crime. See Powell v. State, 898 S.W.2d 821, 827 (Tex.Cr.App.1994). The smell of burnt marihuana by a trained officer provides, in itself, probable cause to search a vehicle. See Moulden v. State, 576 S.W.2d 817, 819-20 (Tex.Cr.App.1978). The arresting officer=s detection of the smell of burnt marihuana near appellant=s car constituted probable cause for his search of the car for marihuana. Appellant sole issue on appeal is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
JUSTICE
August 15, 2002
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]Police are not prohibited by the fourth amendment from making a warrantless custodial arrest for minor criminal offenses punishable by fine only. Atwater v. City of Lago Vista, 532 U.S. 318 (2001).