Eric D. Milburn v. State ( 2014 )

Affirmed and Memorandum Opinion filed May 15, 2014.
In The
Fourteenth Court of Appeals
NO. 14-12-01059-CR
NO. 14-12-01060-CR
ERIC D. MILBURN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause Nos. 1296352 and 1296353
MEMORANDUM OPINION
In these two cases, a jury convicted appellant Eric D. Milburn of possession
of a controlled substance and being a felon in possession of a firearm. The trial
court sentenced appellant to thirty-five years’ confinement in the first case and ten
years’ confinement in the second, with the sentences to run concurrently.
Appellant filed notices of appeal claiming that the trial court erred in denying his
motion to suppress, and that the evidence is insufficient to support the court costs
assessed in the judgment. We affirm.
BACKGROUND
Appellant was pulled over by Houston police for failing to come to a
complete stop at a stop sign.1 Appellant was arrested and placed in the back of a
patrol car while Officer McMullen searched appellant’s vehicle. Officer
McMullen testified the basis for the search was the way the defendant was acting
and the very strong odor of cocaine coming from the vehicle. Officer McMullen
further testified that appellant was under arrest and the search was done to
inventory the vehicle. Cocaine and a gun were found inside the vehicle. Appellant
was charged with possession of cocaine (Trial Court Cause No. 1296352; Appeal
No. 14-12-01059-CR), and being a felon in possession of a firearm (Trial Court
Cause No. 1296353; Appeal No. 14-12-01060-CR).
Appellant filed a motion to suppress the items found in the vehicle,
contending there was no probable cause for stopping the vehicle, arresting
appellant, or searching the vehicle. During Officer McMullen’s testimony at trial,
the court held a hearing on the motion. The jury heard portions of the officer’s
testimony regarding the search. The court heard appellant’s testimony regarding
the search, as well as other portions of the officer’s testimony, outside the presence
of the jury. The court then denied the motion, stating:
Specifically, I find that Officer McMullen is credible. I find that he
did observe multiple traffic violations, including running the stop sign
and failure to signal a lane change. I find that the odor of cocaine is
certainly noticeable in this exhibit and that the officer had probable
cause to search the vehicle and also, as a result of the arrest on the
traffic violations, was required to perform an inventory search.
1
Appellant does not challenge the stop on appeal.
2
The jury found appellant guilty of both charges, and this appeal followed.
MOTION TO SUPPRESS
In his first and second issues, appellant contends the trial court erred in
denying his motion to suppress because the vehicle search cannot be justified
either based on the smell of cocaine or as an inventory search. More specifically,
appellant argues in his first issue that because pure cocaine powder has no odor,
probable cause to search the vehicle cannot be based on the officer’s testimony that
he smelled cocaine. As explained below, we disagree and conclude that the
record—including the officer’s testimony regarding smell—supports the trial
court’s conclusion that the officer had probable cause to search the vehicle. We
therefore do not reach appellant’s second issue regarding an inventory search. See
Tex. R. App. P. 47.1.
In a suppression hearing, the trial court is the sole trier of fact and judge of
the credibility of the witnesses and the weight to be given their testimony. State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). In reviewing a trial court’s
ruling on a motion to suppress, we afford almost total deference to the trial court’s
determinations of historical facts that are supported by the record, especially when
those determinations are based on an evaluation of credibility and demeanor. State
v. Elias, 339 S.W.3d 667, 673 (Tex. Crim. App. 2011). Because the trial court did
not make explicit findings of fact in this case, we review the evidence in a light
most favorable to the trial court’s ruling and assume the trial court made implicit
findings of fact supported in the record that buttress its ruling. Castro v. State, 227
S.W.3d 737, 741 (Tex. Crim. App. 2007).
The same amount of deference should be afforded to trial courts’ rulings on
“application of law to fact questions,” also known as “mixed questions of law and
fact,” if the resolution of those ultimate questions turns on an evaluation of
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credibility and demeanor. Id. Mixed questions not falling within this category are
reviewed de novo. Id. We view the evidence in the light most favorable to the trial
court’s ruling. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007).
We will uphold the court’s ruling if it is correct under any theory of law applicable
to the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).
Under the automobile exception to the Fourth Amendment’s warrant
requirement, “an officer may conduct a warrantless search of a motor vehicle if the
officer has probable cause to believe the vehicle contains evidence of a crime.”
Powell v. State, 898 S.W.2d 821, 827 (Tex. Crim. App. 1994). An officer who has
a reasonable suspicion that a driver committed a traffic violation may detain that
driver to investigate the violation, and if during the detention the officer develops
probable cause to believe the vehicle contains contraband, the officer may search
the vehicle for that contraband. Taylor v. State, 20 S.W3d 51, 56 (Tex. App.—
Texarkana 2000, pet. ref’d). Probable cause exists when reasonably trustworthy
facts and circumstances within the knowledge of the officer would lead a person of
reasonable caution and prudence to believe that an instrumentality of a crime or
evidence will be found. Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App.
2006).
Officer McMullen testified that as appellant “rolled down the driver’s side
window, the smell of cocaine slapped me on my face.” He stated that it was a
“very strong odor,” and that appellant “was acting really, really nervous and
anxious” and did not make eye contact with him. Further, Officer McMullen
testified that he knew what cocaine smells like and had taken classes regarding the
recognition of drugs by smell. He stated that he had been around large quantities
of cocaine in his experience as a police officer. The trial judge was asked to smell
the exhibit and found “the odor of cocaine is certainly noticeable.” We conclude
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that these circumstances, taken together, support the trial court’s probable cause
determination.
It is well settled, and appellant does not dispute, that the odor of contraband
can provide probable cause to search an automobile. Isam v. State, 582 S.W.2d
441, 444 (Tex. Crim. App. 1979); Moulden v. State, 576 S.W.2d 817, 819 (Tex.
Crim. App. 1978); Jordan v. State, 394 S.W.3d 58, 64 (Tex. App.—Houston [1st
Dist.] 2012, pet. ref’d); Ben v. State, No. 01-03-00426-CR, 2004 WL 966337, at *4
(Tex. App.—Houston [1st Dist.] May 6, 2004, pet. ref’d) (mem. op., not
designated for publication) (“the odor of fresh crack cocaine constituted probable
cause to search the entire vehicle”); Herrera v. State, 14-02-00620-CR, 2003 WL
21710357, *7 (Tex. App.—Houston [14th Dist.] July 24, 2003, no pet.) (mem. op.,
not designated for publication); see also Estrada, 154 S.W.3d at 609 (“the ‘odor of
an illegal substance’ may be a factor that police officers use in determining there is
probable cause that an offense has been or is being committed”). Frequently, the
odor detected is not that of the substance in its pure form but is the smell of
chemicals used in manufacturing or processing the contraband. Numerous cases
have relied on the smell of such chemicals in holding that probable cause existed.
Davis v. State, 202 S.W.3d 149, 155 (Tex. Crim. App. 2006) (affidavit supported
probable cause where officer detected strong chemical odor associated with
manufacture of methamphetamine emitting from the residence); Pair v. State, 184
S.W.3d 329, 332 (Tex. App.—Fort Worth 2006, no pet.) (officer smelled strong
ether-like odor he recognized as commonly associated with manufacture of
methamphetamine); see also Narano v. State, 01-91-00936-CR, 1992 WL 336446,
at *1–4 (Tex. App.—Houston [1st Dist.] Nov. 17, 1992, no pet.) (mem. op, not
designated for publication) (officer detected distinct odor of ether, used to dry
cocaine); Stone v. State, B14-89-01067-CR, 1991 WL 100594, at *2, *4 (Tex.
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App.—Houston [14th Dist.] June 13, 1991, no pet.) (mem. op., not designated for
publication) (officer detected odor associated with the ephedrine hydrochloride
manufacturing process for methamphetamine).
Appellant relies upon testimony by a chemist with the City of Houston
Police Department Crime Lab that pure cocaine is odorless. The chemist testified
that the powder or salt form of cocaine has a smell from the hydrochloric acid used
to convert the crack form of cocaine into the more stable powder form. He agreed
that cocaine in its purest form does not have an odor, and that what is smelled
when the cocaine is in powder form is the hydrochloric acid. He testified that it
can be smelled even if the cocaine is in a sealed plastic bag. The chemist said he
would be comfortable identifying an odor as smelling like cocaine. He also
testified that because hydrochloric acid is also used in “pool acid,” its smell is
comparable to that of chlorine from a pool.
Based on this evidence, appellant argues that the smell detected by the
officer was that of potentially legal chemicals, which could not support probable
cause to search his vehicle.2 We disagree for two reasons. First, the chemist’s
testimony was not before the trial court when it ruled on the motion to suppress.
That testimony occurred later in the trial.
Second, the chemist did not testify that the odor of powder cocaine is
indistinguishable from that of pool acid, nor did appellant develop any evidence
about the possibility of mistaking the smell of pool acid for powder cocaine.
Appellant does not dispute that processed cocaine has an odor, or that the cocaine
2
Appellant relies on Pool v. State, 157 S.W.3d 36, 45–46 (Tex. App.—Waco 2004, no
pet.), which held that the smell of unidentified “chemicals” did not provide probable cause to
search a home. Pool is inapplicable here because the rule for probable cause to search based on
odor is different in the vehicular context, see Jordan, 394 S.W.3d at 64, and the testimony of
Officer McMullen specified that the odor he smelled was that of cocaine.
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in this case was processed and had an odor. The record shows that the chemist and
Officer McMullen were comfortable identifying an odor as that of cocaine, just as
witnesses have in many other cases.3 Moreover, as discussed above, the odors of
various chemicals that have other uses are associated with processing controlled
substances, and other courts have relied on those odors to support a determination
of probable cause.
Applying this authority here, we conclude that the totality of the
circumstances surrounding Officer McMullen’s investigation—including the
strong odor of cocaine—support implied fact findings that show the officer had
probable cause to search appellant’s vehicle. Accordingly, the trial court did not
err in denying appellant’s motion to suppress, and we overrule his first issue.
3
E.g., Blackman v. State, 349 S.W.3d 10, 21 (Tex. App.—Houston [1st Dist.] 2009),
rev’d on other grounds, 350 S.W.3d 588 (Tex. Crim. App. 2011) (officer testified cocaine
generally has very strong, chemical odor); Villarreal Lopez v. State, 267 S.W.3d 85, 90 (Tex.
App.—Corpus Christi 2008, no pet.) (both officers testified that cocaine emitted strong odor,
which they smelled upon opening trunk); Black v. State, 739 S.W.2d 638, 642 (Tex. App.—
Dallas 1987, no pet.) (officer testified cocaine has its own odor); Cannon v. State, 06-11-00178-
CR, 2012 WL 3792757, at *1 (Tex. App.—Texarkana Sept. 4, 2012, pet. ref’d) (mem. op., not
designated for publication) (officer opened air cleaner box and immediately smelled odor of
cocaine); Powell v. State, 04-11-00495-CR, 2012 WL 3597199, at *4 (Tex. App.—San Antonio
Aug. 22, 2012, no pet.) (mem. op., not designated for publication) (officers experienced in drug
trafficking described odor of cocaine emanating from compartment); Johnson v. State, 01-10-
00460-CR, 2011 WL 2624008, at *2 (Tex. App.—Houston [1st Dist.] June 30, 2011, pet. ref’d)
(mem. op., not designated for publication) (officer testified that large quantity of cocaine has
distinctive “chemical” smell); Ruiz v. State, 01-06-00018-CR, 2006 WL 3438564, at *3 (Tex.
App.—Houston [1st Dist.] Nov. 30, 2006, no pet.) (mem. op., not designated for publication)
(officer smelled overwhelming and distinct odor of cocaine when appellant was stopped for
traffic violation); Gonzalez v. State, 01-00-01154-CR, 2001 WL 1382267, at *2 (Tex. App.—
Houston [1st Dist.] Nov. 8, 2001, pet. ref’d) (evidence affirmatively linking appellant to cocaine
included strong odor of cocaine).
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COURT COSTS
Appellant’s third issue asserts the costs reflected in the judgments are not
supported by sufficient evidence. The records in both cases have been
supplemented with bills of costs. See Johnson v. State, 423 S.W.3d 385, 391 (Tex.
Crim. App. 2014). Although the bills of costs were prepared after the court signed
the judgments, they must be considered in determining whether the costs are
supported by facts in the record. Id. at 394–95. Appellant does not contend these
documents fail to meet the requirements to be considered proper bills of costs, nor
does he challenge any specific cost or the basis for assessment of that cost.
Accordingly, we hold that in both cases the bills of costs support the costs assessed
in the judgments. Appellant’s third issue is overruled.
CONCLUSION
Having overruled appellant’s issues, we affirm the trial court’s judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices McCally, Busby, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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