Affirmed and Opinion Filed December 20, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00664-CR
EDWIN CORTEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-82900-2020
MEMORANDUM OPINION
Before Justices Schenck, Osborne,1 and Smith
Opinion by Justice Schenck
In one issue, Cortez appeals the district court’s order denying his motion to
suppress arguing: (1) the evidence is insufficient to support some of the district
court’s findings of fact; and (2) the district court erred when it concluded (a) the
initial stop and detention were reasonable, and (b) there was probable cause to
support the officer’s warrantless search of his vehicle because it was based the
1
Justice Leslie Osborne was a member of the panel and participated in the oral argument of this appeal.
After argument, she resigned from this Court. Justice Osborne did not participate in the decision of this
case. TEX. R. APP. P. 41.1(b).
officer’s belief that he smelled “illegal marijuana,” 2 which has the same odor as
“legal hemp.” We conclude the district court did not err when it denied Cortez’s
motion to suppress. The district court’s order is affirmed.3
I. BACKGROUND
Cortez was indicted for possession of methamphetamine in an amount of less
than one gram enhanced by two prior convictions. See TEX. HEALTH & SAFETY
CODE ANN. § 481.115. Before trial, Cortez filed a motion to suppress the evidence.
The district court held a hearing on Cortez’s motion to suppress and heard the
testimony of one witness, Officer Zach Petty. The following is based on Officer’s
Petty’s testimony.
Around 10:23 a.m., Officer Petty observed a Chevrolet Equinox Sport Utility
Vehicle (SUV) weaving from side-to-side, crossing the solid white line, following
too closely behind another vehicle, and leaving the turn signal on for a period of time
without changing lanes. He ran the license plate number in his computer and
received a registration return indicating there was an outstanding warrant attached
to the vehicle.
2
The statutory spelling of the substance is “marihuana.” See TEX. HEALTH & SAFETY CODE ANN.
§§ 481.002(26), .120, .121, .122; Smith v. State, 176 S.W.3d 907, 911 n.1 (Tex. App.—Dallas 2005, pet.
ref’d). The common spelling of the word is “marijuana.” See Smith, 176 S.W.3d at 911 n.1; see also 28
C.J.S. Drugs and Narcotics § 6 (2022). The common spelling is frequently used in trial court records.
Smith, 176 S.W.3d at 911 n.1.
3
This appeal involves the same facts and similar legal arguments as Cortez v. State, No. 05-21-
00661-CR (Tex. App.—Dallas Dec. 20. 2022, no pet. h.) (mem. op.). In that appeal, Cortez challenges the
county court’s denial of his motion to suppress in the case against him for possession of marijuana. We
decide that appeal by a separate opinion also issuing today because it arises out of a different trial court.
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Office Petty pulled the vehicle over in a Costco parking lot and initiated a
traffic stop. He described to the driver, Cortez, everything he had observed and
asked if everything was ok. Cortez answered that he was low on gasoline. Officer
Petty could smell the distinct odor of marijuana coming from the vehicle. Besides
Cortez, there were other people in the vehicle. Officer Petty asked for Cortez’s
identification, which Cortez obtained from a pink purse that appeared to contain
Cortez’s belongings. Once Officer Petty also obtained the driver’s and passengers’
information, he returned to his vehicle to request backup and then “ran each subject”
on the radio and his computer.
Officer Petty returned and removed Cortez from the vehicle. Then, after his
backup arrived, the other passengers were also removed from the vehicle.
Cortez’s vehicle was blocking another vehicle from backing out of a parking
spot, so Officer Petty requested the keys from Cortez in order to move Cortez’s
vehicle out of the other driver’s way. While in Cortez’s vehicle, Officer Petty moved
the driver’s seat back and heard “a kind of clanking on [the] metal frame” and found
drug paraphernalia underneath. When the officers searched the vehicle, they found
among other things marijuana, a methamphetamine pipe, and methamphetamine in
the pink purse. They also found a methamphetamine pipe in the back seat that was
claimed by one of the vehicle’s passengers.
The officers arrested Cortez for possession of marijuana. They also
determined the outstanding warrant attached to the vehicle’s license plate was for
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the front-seat female passenger, and they arrested her. In addition, they arrested the
backseat passenger for several outstanding warrants from multiple agencies.
The district court denied Cortez’s motion to suppress and signed written
findings of fact and conclusions of law. Cortez pleaded guilty to possession of
methamphetamine in an amount of less than one gram and true to the two
enhancement paragraphs alleged in the indictment. The district court found Cortez
guilty, the enhancements true, and assessed his punishment at five years of
imprisonment.
II. DISCUSSION
In his sole issue on appeal, Cortez argues the district court erred when it
denied his motion to suppress because: (1) the evidence is insufficient to support its
findings of fact; and (2) the district court’s conclusions of law are not supported by
the findings of fact and are incorrect as a matter of law.
A. Standard of Review—Motion to Suppress
In reviewing a trial court’s ruling on a motion to suppress, an appellate court
applies a bifurcated standard of review. See State v. Hardin, No. PD-0799-19, 2022
WL 16635303, at *2 (Tex. Crim. App. Nov. 2, 2022). An appellate court gives
almost total deference to the trial court’s determination of historical facts. See id.
Likewise, an appellate court affords almost total deference to a trial court’s ruling
on mixed questions of law and fact, if the resolution to those questions turns on the
evaluation of credibility and demeanor. See id. And an appellate court conducts a
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de novo review of the trial court’s application of the law to those facts. See State v.
Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019).
B. Trial Court’s Findings of Fact
In the first part of issue one, Cortez argues the evidence is insufficient to
support some of the district court’s findings of fact. Specifically, he challenges
portions of the district court’s findings of fact nos. 1–3 and 6–7, and all of finding
of fact no. 9. Cortez maintains that the district court’s findings of fact—the officer
was qualified to identify marijuana by smell and what he smelled was marijuana—
contradict its other findings—the officer is unqualified to distinguish illegal
marijuana from legal hemp, the odors of marijuana and hemp are identical, and the
odor of marijuana was the officer’s only basis for conducting the warrantless
search—and are therefore arbitrary and unreasonable.
1. Standard of Review—Findings of Fact on Motion to Suppress
The trial court is the sole and exclusive trier of fact and judge of credibility of
the witnesses and the evidence presented at a hearing on a motion to suppress. See
Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007). As the sole trier of
fact during a suppression hearing, a trial court may believe or disbelieve all or any
part of a witness’s testimony. See Wilson v. State, 311 S.W.3d 452, 458 (Tex. Crim.
App. 2010). Where the trial court has made express findings of fact, an appellate
court views the evidence in the light most favorable to those findings and determines
whether the evidence supports the fact findings. See State v. Rodriguez, 521 S.W.3d
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1, 8 (Tex. Crim. App. 2017). Unless the trial court abused its discretion by making
a finding not supported by the record, an appellate court will defer to the trial court’s
fact findings and not disturb the findings on appeal. See Miller v. State, 393 S.W.3d
255, 263 (Tex. Crim. App. 2012); Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim.
App. 1991).
2. Application of the Law to the Facts
Cortez agrees the following findings of fact or portions thereof are supported
by the evidence adduced at the motion-to-supress hearing:
1. . . . . The [district] [c]ourt . . . finds [the testifying officer]
unqualified to distinguish illegal marijuana from hemp.
2. . . . . The reported behaviors are not apparent on the dashcam
footage. . . .
3. Once [Cortez’s] vehicle was stopped, the subsequent search of
the vehicle was based entirely upon the officer’s smell of marijuana. . . .
The officer’s probable cause to search the vehicle and initially detain
[Cortez] and the passenger was based entirely on the smell. . . .
4. The search was warrantless.
5. The officer also testified that he observed furtive behaviors by
the driver/[Cortez]. However, he did not rely on these observations in
conducting the warrantless search and, in any event, no furtive behavior
is observed by the [district] [c]ourt in the dashcam or bodycam videos.
The [district] [c]ourt observes that it is almost impossible to see inside
the SUV from even a short distance behind the SUV. For purposes of
this Motion to Suppress, therefore, the [trial] [c]ourt finds there is no
credible evidence of furtive behavior at any relevant time.
6. All other observations by the officer occurred after the stop and
the search initiated by the smell of marijuana had begun. These
additional observations and findings, although credible, are therefore
irrelevant since the officer’s only stated basis for probable cause to
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conduct the search was the smell of marijuana emanating from the
car. . . .
7. . . . . As stated in the footnote, though, the [district] [c]ourt for
the purposes of this proceeding assumes that the odors of illegal
marijuana and legal hemp are identical. [The footnote states: “for
purpose[s] of this motion to suppress, however, the [district] [c]ourt
acknowledges that they are the same as expressed routinely in other
cases which have decided the issue before the [district] [c]ourt and as
same is expressed in the scientific literature as the common public
knowledge.]
8. The traffic stop occurred on October 27, 2019, which was after
the Texas Hemp Farming Act became effective and after legal hemp
had been excluded from the definition of illegal marijuana. At the time
of the traffic stop and search, certain forms of hemp were “legal.”
However, the procedure established for growing, transporting, and
selling such “legal” products had not yet been established.
However, Cortez argues the following findings of fact or portions thereof are
not supported by sufficient evidence:
1. The testifying officer has over five years of experience as a patrol
officer and is intimately familiar with the traffic laws. He is also trained
and certified in narcotics highway interdiction, including training in
observing driving behaviors and identification of narcotics, including
marijuana. The [district] [c]ourt finds him qualified to identify
marijuana by smell and appearance in the ordinary course of events. . .
2. The officer stopped the vehicle [Cortez] was driving, a Chevrolet
Equinox SUV, after observing it for some distance. The officer
described the SUV as (a) weaving from side to side, (b) crossing a solid
white line, (c) following other cars too closely, and (d) leaving his turn
signal on for a while without making a lane change[.]. These
observations predominantly occurred before the dashcam recording
began (the observations began at approximately the 2500 block of the
highway and the dashcam recording began at about the 3000 block
marker). . . . Tthe reported behaviors are not apparent on the dashcam
footage and [Cortez] urges that this should take precedence over the
officer’s testimony. However, the [district] [c]ourt finds the officer’s
testimony regarding the vehicle’s behavior prior to the beginning of the
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recording to be credible and therefore finds that the original traffic stop
based upon these observations to have been based upon reasonable
suspicion that [Cortez] had violated at least one traffic law (following
too closely and crossing the white line). . . .
3. The subsequent events were based upon the contraband located
during the search. The [district] [c]ourt finds that the officer had
sufficient training and experience to recognize the smell of marijuana
and did so in this case. . . . The officer was clear in his testimony and
the bodycam video footage substantiates that the only reason for the
officer’s search of the vehicle and, ultimately, the driver and his two
passengers, was the smell of marijuana.
....
6. . . . . If the search was based on probable cause, the subsequent
actions based upon contraband discovered during the search were
proper.
7. During cross-examination, the officer admitted that he had not
been trained in distinguishing “legal” from “illegal” hemp/marijuana
by smell or otherwise. He never admitted that the smell of “legal” hemp
and “illegal” marijuana were the same and there is no evidence in the
record that they are the same.
....
9. The vehicle was readily mobile.
The crux of Cortez’s argument is that the district court’s findings of fact are
self-contradicting and therefore, arbitrary and unreasonable. His argument
essentially divides a single sentence in finding of fact no. 1 into two propositions.
That sentence states, “The [district] [c]ourt finds [the officer] qualified to identify
marijuana by smell and appearance in the ordinary course of events, but finds him
unqualified to distinguish illegal marijuana from legal hemp.” When read in the
light most favorable to the district court’s finding, it is clear that the first part of the
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sentence is referring to “marijuana” in a general sense, i.e., the plant Cannabis sativa
L. from which both marijuana and hemp are derived, because it does not reference
its legality and expressly states that portion of the finding is in the context of the
“ordinary course of events.” This understanding is supported by the second half of
the sentence which is more specific and clearly distinguishes between “illegal
marijuana” and “legal hemp.” While it would have been preferrable for the district
court to use more precise language in its findings of fact given the change in legal
status for hemp, it is clear from the record that when generally referring to
“marijuana… in the ordinary course of events,” the district court was referring to the
plant Cannabis sativa L., not marijuana or hemp as statutorily defined. Accordingly,
we conclude the district court’s findings of fact are not arbitrary or unreasonable and
do not contradict themselves.
Cortez also extracts a portion of a sentence in finding of fact no. 3, which
states in full, “The [district] court finds that the officer had sufficient training and
experience to recognize the smell of marijuana and did so in this case.” Again, when
read in light most favorable to the district court’s finding, it is clear that the district
court was referring to “marijuana” in a general sense, i.e., Cannabis sativa L.,
because he does not reference the substance’s legal status.
The trial court’s findings of fact largely comport with the officer’s testimony.
The district court was the exclusive trier of fact and judge of the credibility of the
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witnesses. See Delao, 235 S.W.3d at 235. After reviewing the record, we conclude
the evidence supports the challenged findings of fact.
We decide against Cortez on the first part of his sole issue.
C. Trial Court’s Conclusions of Law
In the second part of issue one, Cortez argues the district court erred when it
concluded (a) the initial stop and detention were reasonable, and (b) there was
probable cause to support the officer’s warrantless search of his vehicle because it
was based the officer’s belief that he smelled illegal marijuana, which has the same
odor as legal hemp.4
1. Standard of Review—Conclusions of Law on Motion to Suppress
An appellate court reviews the trial court’s legal ruling on a motion to
suppress de novo, unless its specific fact findings that are supported by the record
are also dispositive of the legal ruling. See Abney v. State, 394 S.W.3d 542, 548
(Tex. Crim. App. 2013). An appellate court must uphold the trial court’s ruling if it
is supported by the record and correct under any theory of law applicable to the case,
even if the trial court gave the wrong reason for its ruling. See State v. Stevens, 235
S.W.3d 736, 740 (Tex. Crim. App. 2007). A trial court will abuse its discretion only
if it refuses to suppress evidence that is obtained in violation of the law and that is
4
Cortez also argues the district court erred when it concluded that he consented to the search of his
vehicle because it was not feely and voluntarily given. We need not address this argument because the
district court did not conclude that he consented to the search and it is not necessary for the disposition of
this appeal.
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inadmissible under Texas Code of Criminal Procedure article 38.23. See Wilson,
311 S.W.3d at 458.
2. Initial Stop and Detention
Cortez argues that the trial court erred when it concluded the initial traffic stop
was supported by the officer’s reasonable suspicion that one or more traffic laws had
been violated. He contends that the officer prolonged the underlying traffic stop,
which should have ended once the officer determined there was no medical
emergency or after the officer issued a traffic citation. The State responds that the
record shows the officer’s reasonable suspicion to stop the vehicle was based on an
outstanding warrant associated with the vehicle’s license plate, which is sufficient
to establish reasonable suspicion to stop Cortez’s vehicle.
a. Applicable Law
A warrantless traffic stop is a Fourth Amendment seizure that is analogous to
temporary detention; thus, it must be justified by reasonable suspicion. Hardin,
2022 WL 16635303, at *3. An officer conducts a lawful temporary detention when
he has reasonable suspicion to believe that an individual is violating the law. Ford
v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists
if the officer has specific, articulable facts that, when combined with rational
inferences from those facts, would lead him to reasonably conclude that the person
being detained actually is, has been, or soon will be engaged in criminal activity.
Hardin, 2022 WL 16635303, at *3. This is an objective standard that disregards any
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subjective intent of the officer making the stop and looks solely to whether an
objective basis for the stop exists. Brodnex v. State, 485 S.W.3d 432, 437 (Tex.
Crim. App. 2016). A reasonable-suspicion determination is made by considering
the totality of the circumstances. Hardin, 2022 WL 16635303, at *3.
Generally, an officer may use information obtained from checking a vehicle’s
license plate in a computer database to form reasonable suspicion. Delk v. State, 855
S.W.2d 700, 709–10, 712 (Tex. Crim. App. 1993) (concluding officers had
reasonable suspicion to question defendant after officer “ran a license check on a
vehicle” in law enforcement database, and computer indicated car had been stolen
and owner was homicide victim); see also Blankenship v. State, No. 05-19-01436-
CR, 2022 WL 336560, at *3 (Tex. App.—Dallas Feb. 4, 2022, no pet.) (mem. op.,
not designated for publication). An officer’s belief that the owner of a vehicle has
an outstanding arrest warrant may constitute reasonable suspicion justifying an
investigative stop of the vehicle. See Hurtado v. State, 881 S.W.2d 738, 742 (Tex.
App.—Houston [1st Dist.] 1994, pet. ref’d).
b. Application of the Law to the Facts
The district court expressly concluded with respect to Cortez’s initial
detention:
1. The initial traffic stop was supported by the officer’s reasonable
suspicion that one or more traffic laws had been violated.
However, we need not address whether the district court erred when it made this
conclusion of law because the record shows that, before stopping the vehicle, the
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officer ran the license plate and discovered the vehicle was attached to an
outstanding warrant, which may constitute reasonable suspicion justifying an
investigative stop of a vehicle. See Delk, 855 S.W.2d at 709–10, 712. And, during
the stop, the officer confirmed that the front-seat female passenger matched the
warrant, and she was arrested. To the extent Cortez argues the officer should have
ended the stop when he determined there was no “medical emergency,” the record
shows the officer was in the process of investigating the outstanding warrant when
he smelled the odor of marijuana. We must uphold the district court’s ruling if it is
supported by the record and correct under any theory of law applicable to the case,
even if the trial court gave the wrong reason for its ruling. See Stevens, 235 S.W.3d
at 740.
We conclude the district court did not err when it concluded the initial traffic
stop was supported by the officer’s reasonable suspicion.
3. Probable Cause to Search
Cortez argues that the trial court erred when it concluded there was probable
cause to support the officer’s warrantless search of his vehicle based the officer’s
belief that he smelled “illegal marijuana,” which has the same odor as “legal hemp.”
According to Cortez, recent legislative changes made a distinction between two
categories of the plant Cannabis sativa L. based on the amount of THC contained in
the plant—decriminalizing hemp which is defined as the plant Cannabis sativa L.
with a delta-9 tetrahydrocannabinol concentration (THC) of not more than 0.3
–13–
percent on a dry weight basis and providing that an individual is only criminally
responsible for possessing marijuana which has a THC level higher than hemp.
Compare TEX. AGRIC. CODE ANN. § 121.001 with HEALTH & SAFETY § 481.002(26).
As a result, the odor of Cannabis sativa L. is insufficient to establish probable cause
to conduct a warrantless search. The State responds that courts have long held that
the smell of marijuana alone is sufficient to constitute probable cause to search a
defendant’s person, vehicle, and the objects within the vehicle. And in Texas,
marijuana remains illegal.
a. Applicable Law
The federal Agricultural Improvement Act of 2018 (2018 Farm Bill) classified
“hemp” as an agricultural product and generally authorized each state to decide
whether and how to regulate it within the state’s borders. Texas Dep’t of State
Health Servs. v. Crown Distributing LLC, 647 S.W.3d 648, 650 (Tex. 2022). The
2018 Farm Bill excludes “hemp” and hemp products that are cultivated, produced,
manufactured, and sold in compliance with federal regulations and the relevant
state’s federally approved plan. Id.
The Texas Legislature adopted a hemp plan in 2019. Id. As a result, the Texas
Agricultural Code generally permits and regulates the cultivation and handling of
hemp within this state; it generally permits Texans to cultivate, handle, transport,
export, process, manufacture, distribute, sell, and purchase hemp and hemp-
containing products within Texas. AGRIC. §§ 121.001–122.404; Crown
–14–
Distributing, 647 S.W.3d at 650. But the plan expressly prohibits the “processing”
or manufacturing” of hemp-containing products “for smoking.” AGRIC.
§ 122.301(b); Crown Distributing, 647 S.W.3d at 650–51. As a result, the Texas
Administrative Code prohibits the “manufacture,” “processing,” and distribution or
retail sale of “consumable hemp products for smoking.” 25 TEX. ADMIN. CODE
§ 300.104; Crown Distributing, 647 S.W.3d at 651. Also, the Texas Legislature
amended the Texas Health and Safety Code to remove hemp from the definition of
marijuana. HEALTH & SAFETY § 481.002; Smith v. State, 620 S.W.3d 445, 448–49
(Tex. App.—Dallas 2020, no pet.).
Under § 481.212 of the Texas Health and Safety Code, a person commits an
offense if the person knowingly or intentionally possesses a usable quantity of
marijuana. HEALTH & SAFETY § 481.121(a). Possession of marijuana for personal
use in Texas generally is a misdemeanor. See id. § 481.121(b)(1).
A warrantless search is considered per se unreasonable subject only to a few
specifically established and well-delineated exceptions. Schneckloth v. Bustamonte,
412 U.S. 218, 219 (1973). A strong odor of marijuana from a small enclosed area,
like a car, gives a peace officer probable cause to make a warrantless search of both
the car and its occupants. Stringer v. State, 605 S.W.3d 693, 697 (Tex. App.—
Houston [1st Dist.] 2020, no pet.). As marijuana possession is a crime, its odor may
evidence criminal activity. Id.
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As detailed below, Cortez urges that a search based on the odor of marijuana
must be unreasonable unless the officer is able to discern as a matter of fact and law
that the substance in question is, in fact, not simply hemp. The “touchstone” of the
fourth amendment, of course, is “reasonableness.” Heien v. North Carolina, 574
U.S. 54, 60 (2014). “To be reasonable,” however, “is not to be perfect, and so the
Fourth Amendment allows for some mistakes on the part of government officials,
giving them ‘fair leeway for enforcing the law in the community’s protection.’” Id.
at 60–61. An error of fact or law, if reasonable, will not render the officer’s judgment
on the scene as invariably unreasonable. Id. at 61–68. Thus, if an officer, while
conducting an otherwise permissible inventory search of a vehicle comes across
bales of white powder wrapped tightly in plastic and duct tape, determines on the
scene that seizure and arrest appear appropriate, the decision is not retroactively
rendered “unreasonable” because later laboratory testing reveals the substance to be
something other than cocaine. Were it otherwise, our drug laws would become
practically unenforceable.
b. Application of the Law to the Facts
The district court made the following conclusions of law with respect to the
warrantless search of Cortez’s vehicle:
2. The search of [Cortez’s] SUV initiated by the officer based
solely on the smell of an odor associated with illegal marijuana was
supported by probable cause in the totality of the circumstances and
was therefore valid;
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3. The contraband evidence obtained from the subsequent search
of [Cortez’s] vehicle was obtained legally[.]
In this case, the officer was not mistaken in his belief that Cortez was in
possession of marijuana. Rather, Cortez argues that because marijuana and hemp
come from the same plant, Cannabis sativa L., the difference between the two are
impossible to distinguish by smell and therefore, the possibility of error was
invariably present and, thus, the odor of Cannabis sativa L. is insufficient by itself
to establish probable cause to search. But the possession of marijuana is still a
criminal offense under Texas law and a reasonable, even if ultimately erroneous
conclusion by an officer on the scene as to the identity of the substance, would be
permitted under the Fourth Amendment. See HEALTH & SAFETY § 481.121(a).5
Therefore, we conclude the odor of Cannabis sativa L. emanating from Cortez’s
vehicle gave the officer probable cause to search the vehicle as well as its occupants.
See Stringer, 605 S.W.3d at 697.
We conclude the trial court did not err when it concluded there was probable
cause to support the officer’s warrantless search of Cortez’s vehicle based the
officer’s belief that he smelled Cannabis sativa L.
We decide against Cortez on the second part of his sole issue.
5
Further, although hemp is legal, the “manufacture,” “processing,” and distribution or retail sale of
“consumable hemp products for smoking” is prohibited. See AGRIC. § 122.301(b); 25 ADMIN. § 300.104;
Crown Distributing, 647 S.W.3d at 651.
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III. CONCLUSION
Having concluded the district court did not err when it denied Cortez’s motion
to suppress, we affirm the district court’s order.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
Do Not Publish
Tex. R. App. P. 47
210664F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EDWIN CORTEZ, Appellant On Appeal from the 401st Judicial
District Court, Collin County, Texas
No. 05-21-00664-CR V. Trial Court Cause No. 401-82900-
2020.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice
Schenck. Justice Smith participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered December 20, 2022
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