Simmonds v. State

51 S.W.3d 445, 2001 Tex. App. LEXIS 4006, 2001 WL 674402
CourtCourt of Appeals of Texas
DecidedJune 18, 2001
DocketNo. 06-00-00143-CR
StatusPublished

This text of 51 S.W.3d 445 (Simmonds v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simmonds v. State, 51 S.W.3d 445, 2001 Tex. App. LEXIS 4006, 2001 WL 674402 (Tex. Ct. App. 2001).

Opinion

OPINION

Opinion by

Justice ROSS.

Gordon Ray Simmonds appeals his conviction for possession of child pornography, enhanced by two prior felony convictions. The State alleged five separate counts of the offense and eight prior felony convictions. Simmonds filed a motion to suppress evidence, which the trial court overruled. Thereafter, the State elected [447]*447to proceed on count one of the indictment, and Simmonds pled guilty to that offense. Simmonds also pled true to two of the State’s enhancement allegations. The trial court found Simmonds guilty, found the two enhancement allegations true, and sentenced him to fifty years in prison.

In the same proceeding, the trial court also found Simmonds guilty of two other possession of child pornography offenses, which the State alleged by separate indictment. The punishment range for each of those offenses was also enhanced by two prior felony convictions. The trial court sentenced Simmonds to fifty years in prison for each offense and ordered that the punishment for all offenses run concurrently. Simmonds has also filed appeals from the other two convictions, which we address by separate opinions.

Simmonds contends the trial court erred in overruling his motion to suppress. The State contends the evidence was admissible because it was in plain view. The United States Constitution protects individuals from unreasonable searches and seizures. U.S. Const. amend IV. Under the Fourth and Fourteenth Amendments to the United States Constitution, a search conducted without a warrant issued with probable cause is per se unreasonable, unless it is made pursuant to a valid exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854, 858 (1973); Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App.2000). However, if during a lawful search the officer comes across evidence in plain view, the officer may seize the evidence. Texas v. Brown, 460 U.S. 730, 738-39, 103 S.Ct. 1535, 75 L.Ed.2d 502, 511 (1983); Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000).

Such action does not implicate the privacy considerations involved in the Fourth Amendment’s prohibition against unreasonable searches because there is no legitimate expectation of privacy in an object readily observable by officers from a lawful vantage point. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334, 345 (1993). The warrant-less seizure is deemed justified by balancing the impracticality and possible danger associated with obtaining a warrant and the slight intrusion on the objectives the Fourth Amendment was designed to promote. See Dickerson, 508 U.S. at 375, 113 S.Ct. 2130; Brown, 460 U.S. at 739, 103 S.Ct. 1535.

For a “plain view” seizure to be constitutionally permissible, two requirements must be met. First, the officer must have a right to be where he is. Walter, 28 S.W.3d at 541. Second, the incriminating nature of the evidence must be immediately apparent; that is, there must be probable cause to associate the item with criminal activity. Id.

At the suppression hearing, Officer Darren Washburn testified that he came to Simmonds’ motel room to investigate a case involving the harboring of a runaway. Simmonds allowed him to enter. The motel room was set up like an apartment, with two bedrooms and a living area.

Washburn testified that he noticed an open pocketknife laying on the corner of a drafting table, which had a white surface. For his protection, he picked up the knife, closed it, and laid it back down on the table. Washburn then testified, ‘When I laid the knife back down, I saw a picture on plain white paper that was upside-down. When I saw it, it looked to me to be an image of a young child in a sexual pose. She appeared to be partially nude.” He testified that the picture was laying next to the pocketknife and that he was about two feet from the picture. Wash-[448]*448burn testified that he moved a step closer to the picture and looked at it again from directly overhead. He testified that viewing the picture from this angle confirmed his suspicion that the picture was child pornography.

Washburn testified that he turned the picture over and asked Simmonds about it. He testified that Simmonds told him it was something someone had sent him via email. He asked Simmonds if he had more pictures like that one in the room, and Simmonds told him he did not. Nevertheless, Washburn received Simmonds’ permission to search the room, and Washburn found other pictures containing child pornography. Simmonds then voluntarily turned over some computer diskettes, which he said contained child pornography, and a white, three-ring binder containing other images depicting child pornography.

Simmonds disagreed with Washburn’s account in several important details. First, Simmonds testified that the pocketknife was not on the drafting table, but was on a filing cabinet a few feet away. Second, he testified that Washburn was several feet from the picture before he walked over to it. Third, he testified that Washburn immediately turned the picture over, rather than taking time to look at it from above. Finally, he disputed that the picture Washburn turned over was the same picture Washburn identified; rather, he testified that the picture Washburn turned over was another of the pictures Washburn later found in the room. Sim-monds maintained that the picture Wash-burn actually turned over could not have been identified as child pornography from a face-down position.

At the hearing, the trial court viewed each face-down picture from the distances and angles suggested by Simmonds’ and Washburn’s testimonies. Thereafter, the trial court entered written findings of fact and conclusions of law in which it adopted Washburn’s version of the events.

At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses and the weight of their testimony. Green v. State, 934 S.W.2d 92, 98 (Tex.Crim.App.1996). Therefore, an appellate court must view the record and draw all reasonable inferences therefrom in the light most favorable to the trial court’s ruling. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). Furthermore, the appellate court must sustain 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. Id.; Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990).

The general rule is that an appellate court should afford almost total deference to a trial court’s determination of the historical facts that the record supports, especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

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Related

Schneckloth v. Bustamonte
412 U.S. 218 (Supreme Court, 1973)
Texas v. Brown
460 U.S. 730 (Supreme Court, 1983)
Arizona v. Hicks
480 U.S. 321 (Supreme Court, 1987)
Minnesota v. Dickerson
508 U.S. 366 (Supreme Court, 1993)
Reasor v. State
12 S.W.3d 813 (Court of Criminal Appeals of Texas, 2000)
Green v. State
934 S.W.2d 92 (Court of Criminal Appeals of Texas, 1996)
Brown v. State
617 S.W.2d 196 (Court of Criminal Appeals of Texas, 1981)
Walter v. State
28 S.W.3d 538 (Court of Criminal Appeals of Texas, 2000)
State v. Young
8 S.W.3d 695 (Court of Appeals of Texas, 1999)
Villarreal v. State
935 S.W.2d 134 (Court of Criminal Appeals of Texas, 1996)
Romero v. State
800 S.W.2d 539 (Court of Criminal Appeals of Texas, 1990)
Nicholas v. State
502 S.W.2d 169 (Court of Criminal Appeals of Texas, 1973)
Guzman v. State
955 S.W.2d 85 (Court of Criminal Appeals of Texas, 1997)

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Bluebook (online)
51 S.W.3d 445, 2001 Tex. App. LEXIS 4006, 2001 WL 674402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmonds-v-state-texapp-2001.