Severino LS Asumu v. State

Opinion issued December 15, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00588-CR
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SEVERINO LS ASUMU, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No 3
Fort Bend County, Texas
Trial Court Case No. 13-CCR-167155
MEMORANDUM OPINION
The State charged Severino Asumu with possession of a controlled
substance, marijuana, weighing two ounces or less. See TEX. HEALTH & SAFETY
CODE ANN. § 481.121 (West 2009). A jury found him guilty, and the trial court
assessed his punishment at 180 days in jail, probated for a period of 9 months, and
100 hours of community service. On appeal, Asumu challenges the trial court’s
(1) denial of his motion to suppress evidence; and (2) admission of three bags of
marijuana into evidence. We affirm.
Background
After receiving a complaint that marijuana was being consumed on the
premises, Deputy K. Elwood was dispatched to investigate apartment number 505
in an apartment complex in Fort Bend County. As Deputy Elwood approached,
she smelled a strong odor of marijuana coming from apartment 505. She knocked
on the apartment door and heard footsteps going down the stairs. A voice
exclaimed, “Oh shit; it’s a cop.” Elwood heard footsteps running back upstairs.
Meanwhile, Asumu exited the apartment through the garage door. Deputy
Elwood confronted him and asked him whether he was a resident of the apartment.
Asumu confirmed that he was a resident and stated that he did not want Deputy
Elwood to search the apartment. During this encounter, Asumu smelled of
marijuana and had glassy and red eyes.
When Deputy Elwood asked Asumu who was in the apartment and what he
was doing, Asumu gave multiple contradictory answers. First Asumu claimed that
he could not let Deputy Elwood into his apartment because he was on his way out,
but he later stated that he did not answer the door when Deputy Elwood knocked
because he was asleep. After Asumu alleged that he had been alone in the
apartment, he acknowledged that his friend Collin was on the couch. As Deputy
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Elwood was asking Asumu questions, Asumu walked back inside the garage and
Deputy Elwood followed him. Once inside the garage, Deputy Elwood could hear
scattered movements that sounded like the knocking over of furniture and the
closing of a door or drawer. Deputy Elwood entered the house, where Asumu and
his guests admitted that they had been smoking marijuana and produced a large
glass water bong and three separate bags of marijuana. Asumu moved to suppress
the evidence of the marijuana. The trial court denied the motion.
At trial, the State introduced two bags of marijuana, a bag with burnt residue
of marijuana inside a pipe, a glass bong, a bag for the bong, and the envelope that
Deputy Elwood had used to secure the marijuana. Asumu objected that the State
failed to prove that the first three exhibits contained marijuana, and the State
responded with testimony from Deputy Elwood that she was trained to recognize
the scents of fresh marijuana and burned marijuana. The trial court then admitted
these exhibits into evidence.
Discussion
A. Motion to Suppress
When a defendant challenges a trial court’s denial of a motion to suppress,
we review the trial court’s ruling for an abuse of discretion. Turrubiate v. State,
399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We defer to the trial court’s
determination of historical facts that depend on credibility and demeanor. Id. We
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review de novo the trial court’s application of the law to the facts if resolution of
those ultimate questions does not turn on the evaluation of credibility and
demeanor. Id. We will uphold the trial court’s ruling if it is “reasonably supported
by the record and is correct on any theory of law applicable to the case.”
Turrubiate, 399 S.W.3d at 150.
The United States and Texas Constitutions protect against unreasonable
searches and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. When law
enforcement does not have a warrant or consent to enter a residence, the search is
presumed unreasonable. See Juarez v. State, 758 S.W.2d 772, 775 (Tex. Crim.
App. 1988). “There is a strong preference for searches to be administered pursuant
to a warrant . . . [a search] without a judicially authorized warrant is presumptively
unreasonable.” Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).
The warrant requirement may be set aside if the State shows that (1) there was
probable cause to enter the home and (2) an exigent circumstance existed that
required entry without a warrant. Id.; Carmen v. State, 358 S.W.3d 285, 292–93
(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). There are three categories of
exigent circumstances: (1) aiding people whom law enforcement officers
reasonably believe require assistance, (2) protecting law enforcement officers from
people reasonably believed to be present, armed, and dangerous, and
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(3) preventing the destruction of evidence or contraband. Gutierrez, 221 S.W.3d at
685; Carmen, 358 S.W.3d at 293.
In this case, the State relies on the third type of circumstance. To show that
entry was necessary to prevent the destruction of contraband, the primary
consideration is “whether there is proof that the officer reasonably believed that
removal or destruction of evidence was imminent.” Turrubiate, 399 S.W.3d at
153. Courts also consider whether the possessors of the contraband were aware
that police were pursuing them, how readily the contraband could be disposed of,
as well as police familiarity with behavior characteristics of people involved in
narcotics sale and distribution. Id. at 151.
Asumu does not challenge the presence of exigent circumstances in
connection with the warrantless search, but rather contends that Deputy Elwood
did not have probable cause to enter his apartment and that he did not consent to
her entry. See Gutierrez, 221 S.W.3d at 685 (holding that searches of a residence
without a warrant or consent must be supported by both probable cause and exigent
circumstances). Asumu observes that the only evidence supporting the search was
the smell of marijuana emanating from the apartment and the original dispatch
complaint.
Deputy Elwood’s observations of the smell of marijuana emanating from the
apartment and then from Asumu, coupled with Asumu’s red, glassy eyes, and his
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multiple contradictory responses to Deputy Elwood’s questions are factors which
the trial court reasonably could have considered in determining that probable cause
existed that illegal activity was taking place within the apartment. We hold that
sufficient evidence supports the trial court’s determination that probable cause
existed to enter the apartment. See Parker v. State, 206 S.W.3d 593, 601 (Tex.
Crim. App. 2006) (holding that tip of underage consumption of alcohol,
exclamation “It’s the police” and footsteps running up the stairs, and officer’s
previous arrest of appellant were sufficient to support probable cause to search
home); Pache v. State, 413 S.W.3d 509, 512 (Tex. App.—Beaumont 2013, no pet.)
(holding that tip that drugs were being sold out of a residence along with odor of
marijuana were sufficient to support probable cause).
B. Admission of Evidence
In Asumu’s second challenge, he complains that the trial court abused its
discretion by allowing Deputy Elwood to authenticate three exhibits as marijuana.
The admissibility of evidence is within the discretion of the trial court and will not
be reversed absent an abuse of discretion. Powell v. State, 63 S.W.3d 435, 438
(Tex. Crim. App. 2001); Harnett, 38 S.W.3d at 657; Ventroy, 917 S.W.2d at 422.
If there is evidence supporting the trial court’s decision to admit evidence, there is
no abuse and the appellate court must defer to that decision. Powell, 63 S.W.3d at
438; Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997).
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It does not take an expert to identify the smell of marijuana smoke. Osbourn
v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). While smelling the odor of
marijuana smoke may not be an event normally encountered in daily life, it
requires limited, if any, expertise to identify. See id. at 534 (police officer
recognized the smell of marijuana emanating from appellant’s car); Kemner v.
State, 589 S.W.2d 403, 407 (Tex. Crim. App. 1979) (airline employee recognized
odor of marijuana emanating from appellant’s suitcase and informed DEA);
Chaires v. State, 480 S.W.2d 196, 198 (Tex. Crim. App. 1972) (airline baggage
agent smelled odor of marijuana in appellant’s suitcase, opened suitcase, and
identified grassy substance it contained as marijuana); Hattersley v. State, 487
S.W.2d 354, 355 (Tex. Crim. App. 1972) (airline employee determined by sight
and smell that appellant’s suitcase contained marijuana); Sorensen v. State, 478
S.W.2d 532, 533 (Tex. Crim. App. 1972) (appellant’s mother testified that she
recognized odor of marijuana when she found it in her son’s room); Mumphrey v.
State, 774 S.W.2d 75, 77 (Tex. App.—Beaumont 1989, pet. ref’d) (13-year-old
rape victim testified that she smelled odor of marijuana on appellant’s clothes).
Although it cannot be presumed that everyone is capable of identifying marijuana
by smell, a witness who has become familiar with the odor of marijuana smoke
through past experience can testify as a lay witness that he or she recognized the
odor. Osbourn, 92 S.W.3d at 537.
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Asumu argues that because the State failed to show that Deputy Elwood was
an expert in identifying marijuana, her testimony was inadmissible. Deputy
Elwood testified, however, that she was familiar with the scent of marijuana
through past experience; thus, the trial court did not abuse its discretion in
admitting the exhibits that were authenticated by her testimony. See Osbourn, 92
S.W.3d at 537 (holding that expert testimony is not needed to identify the smell of
marijuana and that a witness who is familiar with the odor of marijuana smoke
through past experiences can testify as a lay witness that he or she was able to
recognize the odor).
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Radack, Jennings, and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
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