Don Watley v. State

• Court: Court of Appeals of Texas
• Decided: November 6, 2012
• Docket: 07-11-00285-CR
• Status: Published

Opinion

NO. 07-11-0285-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 6, 2012

DON WATLEY,

Appellant v.

THE STATE OF TEXAS,

Appellee _____________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2010-429,005; HONORABLE JOHN J. "TREY" MCCLENDON, III, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

Appellant Don Watley was convicted after a guilty plea of possession of a firearm

by a convicted felon. On appeal, he challenges the trial court’s denial of his motion to

suppress the evidence on the basis that the law enforcement officer had no reasonable

suspicion that he was or would soon be engaged in criminal activity. We affirm the

judgment.

We review the trial court’s ruling on a motion to suppress under the standard

discussed in Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). Under that standard, we defer to the trial court’s resolution of historical fact but consider de novo its

conclusions of law. Id. at 493. A law enforcement officer may detain an individual for

investigative purposes without a warrant if he has a reasonable, articulable suspicion

the person has been, is, or soon will be engaged in criminal activity. Id. at 492. In

determining whether the officer acted reasonably, we examine the totality of the

circumstances. Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010).

The only witness at the suppression hearing was State Trooper Jerry Johnson.

He testified that, on September 6, 2010, around 3:00 a.m., he was driving south on FM

400 when he observed a pickup truck driving out of a field. Because the area is one

where intoxicated motorists often drive, he followed the truck. However, he observed

no erratic driving or traffic violations and, after watching the vehicle turn into the

driveway of a home, he decided to break off contact. Before he did so, though, he

happened to see two feet of the barrel of a gun sticking out of the driver’s window. At

that point, he turned around, activated his lights and pulled up behind the truck. The

driver, later identified as appellant, had started moving to the door of the house and was

attempting to get into the residence. However, he then moved back in front of his

vehicle where Johnson could not see him so Johnson pulled his gun and told appellant

to move towards the back of the vehicle. When Johnson saw that appellant was not

carrying a gun, Johnson put his weapon back in his holster and asked appellant if he

had a weapon in the vehicle which appellant denied. Nevertheless, the trooper saw

through the driver’s window a shotgun lying on the floorboard. Johnson stated that he

2 was aware of a law prohibiting hunting from a vehicle as well as one prohibiting hunting

at night. 1

Appellant argues that the observation of the gun was the only fact that the officer

relied on in detaining appellant and that alone is not sufficient because it is not illegal to

carry a gun in a vehicle in plain view. Yet, the trooper was entitled to rely on the totality

of the circumstances available to him even though each by itself may not have been

sufficient to justify an investigative detention. Morgan v. State, 304 S.W.3d 861, 868

(Tex. App.–Amarillo 2010, no pet.) (stating that circumstances viewed independently of

each other which could indicate innocent activity may give rise to reasonable suspicion).

Those circumstances included a vehicle driving 1) at 3:00 a.m., 2) in an area with

several houses scattered around, 3) from an open field to the roadway (there being no

indication that he was driving on a road in the field), 4) with a shotgun sticking out the

driver side window, and 5) into the driveway of a house. Together, they evince

sufficiently suspicious activity to justify a stop. Hill v. State, 951 S.W.2d 244, 247 (Tex.

App.–Houston [14th Dist.] 1997, no pet.) (stating that the facts need not suggest the

commission of a particular offense as any sufficiently suspicious activity may justify a

stop). None of the authorities cited by appellant suggesting otherwise involve like

circumstances.

Accordingly, the judgment is affirmed.

Per Curiam

1 TEX. PARKS & W ILD. CODE ANN. § 62.004 (West 2002) (no person may hunt any wild bird, wild fowl or wild game animal between one-half hour after sunset and one-half hour before sunrise); Id. § 62.003(a) (West Supp. 2012) (no person may hunt any wild bird or wild animal except for specified creatures from a motor vehicle).