OUTLAW v. STATE (2025)

OPINION

Appellant Waylon Outlaw appeals his conviction of possession of a controlled substance in Penalty Group 1, in the amount of one gram or more but less than four grams, a third-degree felony. See Tex. Penal Code Ann. § 481.115(c).¹ After a plea bargain agreement, the trial court sentenced him to four years’ confinement. In a single issue, Outlaw argues that the trial court erred in denying his motion to suppress. We affirm.

I. Background

After his indictment, Outlaw filed a motion to suppress evidence, which stated in relevant part:

2. The actions of the Texas Park Ranger violated the constitutional and statutory rights of [Outlaw] under the Fourth, Fifth, Sixth[,] and Fourteenth Amendments to the United States Constitution, Article I, Section 9 of the Texas Constitution, and under Article 38.23 of the Texas Code of Criminal Procedure.

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4. Any tangible evidence seized in connection with this case, including but not limited to CS PG 1>=1G<4G, was seized without warrant, probable cause or other lawful authority in violation of the rights of ․ Outlaw pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 9, 10[,] and 19 of the Constitution of the State of Texas.

5. Therefore, [Outlaw] requests that the following matters be suppressed at trial of this cause:

a. Any and all tangible evidence seized by law enforcement officers ․ in connection with the detention and arrest of ․ Outlaw in this case or in connection with the investigation of this case, including but not limited to CS PG 1>=1G<4G, and any testimony by the Texas Park Ranger ․ concerning such evidence.

On May 1, 2024, the trial court held a pretrial hearing on Outlaw's motion to suppress. At the hearing, Ranger Eric Teel with the Texas Department of Parks and Wildlife testified that he was on patrol on August 14, 2021, actively looking for a “metallic burnt orange [vehicle] ․ [that] had a fairly loud exhaust or engine” after a park manager informed him that the vehicle was seen in Bastrop State Park that day. According to Ranger Teel, he and other park employees had observed the vehicle travel on the park road without a valid entrance permit, which is a violation of the Texas Administrative Code. At around 5:00 p.m., Ranger Teel located the vehicle, which was parked on the “public right-of-way” of FM 153, outside the fenced area of a private property and to the left of the property's driveway. Ranger Teel parked his patrol unit alongside the road, activated his safety overhead lights, and approached the property. According to Ranger Teel, the property was located near the entrance of Buescher State Park. While walking towards the property, Ranger Teel observed the vehicle's passenger side window was down and that there were no occupants inside. Ranger Teel testified that he smelled the odor of marijuana “coming from the area of the vehicle,” and that he was familiar with the odor of marijuana due to his training and experience.

Ranger Teel then drew the attention of three men working at the property who appeared to be “felling a tree” and asked who drove the vehicle. Outlaw approached Ranger Teel and spoke to him “willfully.” This interaction was recorded on Ranger Teel's body-worn camera. Ranger Teel testified that he “r[a]n the vehicle through county dispatch” and was informed that the vehicle's license plate “did not match that vehicle.” Ranger Teel stated that he thereafter detained Outlaw in handcuffs and confirmed that the odor of marijuana originated from inside the vehicle. Ranger Teel also stated that Outlaw admitted to smoking marijuana in the vehicle prior to their interaction. Ranger Teel then conducted a probable cause search of the vehicle and found the following items: a glass pipe commonly used for smoking methamphetamine, rolling papers, two torch lighters, a small bag containing heroine, and a small metal tin containing methamphetamine. When asked if Outlaw was the only individual who was connected to the vehicle, Ranger Teel responded, “Yes. I believe [Outlaw] stated that he was living out of the vehicle[,] and all of his possessions were in the vehicle.”

After Ranger Teel's testimony, the State sought admission of the body-worn camera footage, which was admitted into evidence without objection. The parties did not provide legal arguments to the trial court; however, the court informed the parties that they would have the opportunity to provide written argument on their respective positions on Outlaw's motion to suppress.

On June 10, 2024, the trial court entered its written order denying Outlaw's motion to suppress. The order did not provide the trial court's reasoning for its ruling. Furthermore, Outlaw did not request findings of facts and conclusions of law, and the trial court provided none.

On February 12, 2025, Outlaw pleaded guilty to the offense charged in the indictment pursuant to a plea bargain agreement and was sentenced to four years’ confinement in the Texas Department of Criminal Justice Correctional Institutions Division. This appeal followed. See Tex. R. App. P. 25.2(a)(2)(A).

II. Standard of Review and Applicable Law

We review a trial court's ruling on a motion to suppress for an abuse of discretion. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (citing Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002)). Additionally, we review a trial court's ruling on a motion to suppress under a bifurcated standard. State v. Arellano, 600 S.W.3d 53, 57 (Tex. Crim. App. 2020) (citing Weems v. State, 493 S.W.3d 574, 577 (Tex. Crim. App. 2016)). We afford almost total deference to a trial court's findings of historical fact and determinations of mixed questions of law and fact that turn on credibility and demeanor if they are reasonably supported by the record. Id.; (citing Sims v. State, 569 S.W.3d 634, 640 (Tex. Crim. App. 2019)). We review de novo a trial court's determination of legal questions and its application of the law to facts that do not turn upon a determination of witness credibility and demeanor. Id. When, as here, the trial court fails to issue findings of fact, we view the evidence in the light most favorable to the trial court's ruling and presume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018). The trial court's ruling will be sustained if it is correct on any applicable theory of law and the record reasonably supports it. State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019).

We cannot ignore indisputable video evidence, see State v. Duran, 396 S.W.3d 563, 570–71 (Tex. Crim. App. 2013), but we defer to the trial court when video evidence does “not indisputably refute the trial court's finding.” State v. Gobert, 275 S.W.3d 888, 892 n.13 (Tex. Crim. App. 2009). When indisputable video evidence is conclusive, “then any trial-court findings inconsistent with that conclusive evidence may be disregarded as unsupported by the record, even when that record is viewed in a light most favorable to the trial court's ruling.” Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012) (quoting Tucker v. State, 369 S.W.3d 179, 187 (Tex. Crim. App. 2012) (Alcalá, J., concurring)).

The Fourth Amendment to the United States Constitution guarantees protection against unreasonable searches and seizures.U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). Under the Fourth Amendment, “a warrantless search of either a person or property is considered per se unreasonable subject to a ‘few specifically defined and well established exceptions.’ ” McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003) (internal quotations omitted). “When a search has been conducted without a warrant, the State carries the burden in a motion to suppress to establish the application of the exception for the requirement to obtain a warrant.” Marcopoulos v. State, 548 S.W.3d 697, 703 (Tex. App.—Houston [1st Dist.] 2018, pet. ref'd). “One exception to the warrant requirement before a search is performed is the automobile exception.” State v. Pena, 581 S.W.3d 467, 481 (Tex. App.—Austin 2019, pet. ref'd). “Under the automobile exception, law enforcement officials may 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) (explaining that automobile exception is premised on justifications that ready mobility of vehicles creates exigency and that individuals have “a reduced expectation of privacy in a vehicle because it is subject to” extensive regulation by the government).

Probable cause “exists when facts and circumstances within the officer's knowledge or about which he has reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense was or is being committed.” Lopez v. State, 223 S.W.3d 408, 414 (Tex. App.—Amarillo 2006, no pet.); see Boyett v. State, 485 S.W.3d 581, 595 (Tex. App.—Texarkana 2016, pet. ref'd). “The subjective intent or motivations of law enforcement officials is not taken into account when considering the totality of the circumstances.” Wiede, 214 S.W.3d at 25.

III. Analysis

Outlaw argues that the trial court erred in denying his motion to suppress the evidence obtained as a result of the warrantless search of his vehicle because, among other things, the odor of marijuana was insufficient probable cause.

Ranger Teel's testimony at the suppression hearing revealed that he had been searching for Outlaw's vehicle because it was seen traveling on the park road without a valid entrance permit. Ranger Teel testified that Outlaw's vehicle had been seen in Bastrop State Park that day prior to his encounter with Outlaw. Ranger Teel also stated that he had found Outlaw's vehicle parked at a different location, just outside the fenced area of a property located near the entrance of Buescher State Park. From his testimony, the trial court could have reasonably inferred that Outlaw's vehicle was readily mobile. See Keehn, 279 S.W.3d at 335.

Ranger Teel also testified that, based on his training and experience, he had smelled and confirmed the odor of marijuana emanating from Outlaw's vehicle. “Texas courts have held that the odor of marijuana alone is sufficient to constitute probable cause to search a defendant's person, vehicle, or objects within the vehicle.” State v. Garza, 526 S.W.3d 487, 489–90 (Tex. App.—Corpus Christi–Edinburg 2017, no pet.) (cleaned up). Outlaw identified himself as the driver of the vehicle and was subsequently detained by Ranger Teel. Ranger Teel further testified that Outlaw admitted that he had smoked marijuana in the vehicle prior to their interaction. In connection to this testimony, we note that in the footage admitted into evidence, Outlaw stated to Ranger Teel that he had smoked marijuana in the vehicle earlier that day, prior to Ranger Teel's search of the vehicle.² Based on this evidence, the trial court could have reasonably found that Ranger Teel had probable cause to believe that Outlaw's vehicle contained contraband—namely, marijuana. See Keehn, 279 S.W.3d at 335.

However, Outlaw argues that Ranger Teel's testimony regarding the odor of marijuana emanating from his vehicle was insufficient to constitute probable cause to support a warrantless search. Specifically, Outlaw argues that “the distinction between marijuana and legal hemp renders odor alone inadequate,” citing Gaffney v. State. No. 06-19-00189-CR, 2020 WL 465280, at *2 n.4 (Tex. App.—Texarkana Jan. 29, 2020, no pet.) (mem. op., not designated for publication). The cited footnote does not stand for the proposition as framed by Outlaw. Instead, the Gaffney court expressed the following:

We note that the Legislature has recently excluded “hemp, as that term is defined by [§] 121.001, Agriculture Code” from the definition of marihuana. Tex. Health & Safety Code Ann. § 481.002(26)(F) (Supp.). Because of the similarities in the definitions of marihuana and hemp, the continued viability of the holding that officers and lay witnesses may identify marihuana through their senses alone may be in question ․ We need not address this question, however, because at the time of this offense, the Texas Health and Safety Code did not exclude “hemp” from the definition of marihuana.

Id. Thus, Gaffney did not actually address whether odor of marijuana alone was still sufficient to constitute probable cause in light of the legalization of hemp.

However, the Fifth Court of Appeals has subsequently addressed the argument advanced by Outlaw. See Cortez v. State, No. 05-21-00664-CR, 2022 WL 17817963, at *6–7 (Tex. App.—Dallas Dec. 20, 2022, pet. ref'd) (mem. op., not designated for publication). The court concluded that the odor of marijuana emanating from a vehicle gave an officer probable cause to search the vehicle and its occupants, even though the odor of marijuana is indistinguishable from the odor of hemp. Id. at *7. The appellate court reiterated, “As marijuana possession is a crime, its odor may evidence criminal activity.” Id. It concluded that “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.” Id. The appellate court later reaffirmed its position in Cortez in State v. Gonzales. 676 S.W.3d 261, 268–69 (Tex. App.—Dallas 2023, no pet.).

Other sister courts have reached the same conclusion. See Isaac v. State, 675 S.W.3d 116, 118–20 (Tex. App.—San Antonio 2023, no pet.) (“Despite [the defendant's] argument that industrial hemp is now legal and indistinguishable from marijuana without a lab test, marijuana remains illegal, and the probable cause standard for police to detect it remains the same[.]”); Moffitt v. State, Nos. 12-23-00108-CR, 12-23-00109-CR, 2023 WL 6631852, at *5 (Tex. App.—Tyler Oct. 11, 2023, no pet.) (mem. op., not designated for publication) (concluding that “when ․ an officer smells the odor of marijuana emanating from a vehicle, the odor provides probable cause to search the vehicle and its occupants, regardless of whether the substance in question might be hemp”); Thacker v. State, No. 07-23-00368-CR, 2024 WL 3405900, at *3 (Tex. App.—Amarillo July 12, 2024, no pet.) (“Even though the odor of marijuana is not inevitably tied to criminal activity, probable cause does not require an officer to draw an inference of innocent behavior rather than an inference of unlawful behavior”). We too agree with the conclusion reached by our sister courts and reaffirm our recognition that the odor of marijuana alone is sufficient to constitute probable cause to search a defendant's person, vehicle, or objects within the vehicle. See Garza, 526 S.W.3d at 489.

Accordingly, we conclude the trial court did not abuse its discretion when it denied Outlaw's motion to suppress. See Swain, 181 S.W.3d at 365. We overrule Outlaw's sole issue.

IV. Conclusion

We affirm the trial court's judgment.

FOOTNOTES

1.   This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to a docket-equalization order issued by the Supreme Court of Texas. See Tex. Gov't Code Ann. §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer).

2.   Outlaw suggests in his brief that his statement admitting that he had smoked marijuana was in violation of Miranda and cannot justify the search of his vehicle. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The record demonstrates that Outlaw was not provided Miranda warnings until after he was formally arrested and after Ranger Teel conducted the search of his vehicle. However, “the suppression of physical fruits of a statement is not a proper remedy for a Miranda violation.” State v. Johnson, 707 S.W.3d 256, 259 n.6 (Tex. Crim. App. 2024) (citing cases). “Instead, the fruits of a defendant's statement need to be suppressed only when the statement was obtained through actual coercion.” State v. Pena, 581 S.W.3d 467, 478 (Tex. App.—Austin, 2019 pet. ref'd) (cleaned up). Outlaw does not argue he was actually coerced when making his statements to Ranger Teel and points to no evidence establishing the same. Our review of the body-worn camera footage demonstrates that Ranger Teel did not engage in any improper coercive conduct.To the extent that Outlaw argues that his statements to Ranger Teel should have been suppressed pursuant to Miranda and Article 38.23, we conclude that Outlaw has failed to preserve that issue because he did not raise it at the suppression hearing or in his motion to suppress. See Tex. R. App. P. 33.1 (providing that a party must present to the trial court a timely request, objection, or motion sufficiently stating the specific grounds, if not apparent from the context, for the desired ruling in order to preserve a complaint for appellate review); Gomez v. State, 459 S.W.3d 651, 669 (Tex. App.—Tyler 2015, pet. ref'd) (defendant did not preserve error because his argument at suppression hearing “did nothing to bring the trial court's attention to the issue he now seeks to raise” on appeal); Rothstein v. State, 267 S.W.3d 366, 373–74 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd) (motion to suppress stating one legal theory and arguments at suppression hearing advancing only same theory do not support different legal theory on appeal); see also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (“For a party to preserve a complaint for appellate review, the complaining party must make a specific objection and obtain a ruling on the objection. In addition, a party must make the complaint at the earliest possible opportunity, and the point of error on appeal must comport with the objection made at trial.” (internal citation omitted)). Even if Outlaw had preserved this issue, “mere violations of the Miranda rule are not covered by the state exclusionary rule contained in Article 38.23.” Baker v. State, 956 S.W.2d 19, 24 (Tex. Crim. App. 1997); Tex. Code Crim. Proc. Ann. art. 38.23.

Opinion by Justice Silva