Robert Earl Harris v. State ( 2003 )

   11th Court of Appeals

Eastland, Texas

          Opinion

Robert Earl Harris

Appellant

Vs.                   No. 11-02-00051-CR -- Appeal from Harris County

State of Texas

Appellee

After a nonjury trial, the court overruled a motion to suppress evidence, found that Robert Earl Harris was guilty of AUnlawful Possession of Firearm,@ and assessed his punishment at confinement for two years.^[1]  We affirm.  

      Background Facts

Officer Charles Homer Starks of the Houston Police Department testified that he assisted Officer Jason Sims of the Houston Police Department when Officer Sims arrested appellant on May 17, 2001, at about 3:00 a.m.  Officer Starks said that he observed Officer Sims making a traffic stop in the 100 block of West Rankin.  The two officers were in different police cars.  Appellant stopped his car in the outside lane of the street;  Officer Sims stopped behind appellant=s vehicle; and Officer Starks stopped behind Officer Sims.  The two officers approached appellant=s car at the same time.  Officer Starks approached the passenger, and Officer Sims approached appellant. 

Officer Starks testified that Officer Sims put appellant in the Aprisoner holding area@ of Officer Sims=s vehicle and told Officer Starks that appellant had been arrested for some traffic warrants out of the City of Humble.  Officer Starks testified that he saw Officer Sims do an inventory search of appellant=s vehicle and that he saw Officer Sims Acome out from the driver=s side of the vehicle holding a pistol.@ Officer Starks also testified that, when he first approached appellant=s vehicle, the television set Awas on.@  Officer Starks testified that he Acould observe the glow of the television receiver@ from where he was sitting in his police car and that it was against the law to have a television receiver in a vehicle if it was within the view of the driver.^[2]  Officer Starks testified that the television set was Aclearly visible from where the driver was sitting.@ Officer Starks also testified about the Achain of custody@ on the gun and bullets which were taken from appellant=s car.^[3]             Officer Sims testified about the events on May 17 when he made the traffic stop which led to appellant=s arrest. Officer Sims said that the driver of a Cadillac Awas operating his hydraulics on the street@ and that Ahe also had a T.V. playing@ when Officer Sims pulled his patrol car beside and to the left of appellant=s car.^[4]    Officer Sims turned on his overhead lights, and appellant stopped his car. Officer Sims pulled in behind the Cadillac, and the other officer stopped behind him.  Officer Sims said that he approached the driver and got his driver=s license, that appellant was the man who was driving the Cadillac, and that appellant was Avery nervous.@ Officer Sims said that he put appellant in the back of his patrol vehicle while he did a computer check on appellant=s license and that the computer check showed that appellant was wanted out of Humble for a warrant.

Officer Sims said that he placed appellant under arrest when the computer check showed the outstanding warrant.^[5]  Officer Sims testified that he and Officer Starks searched appellant=s vehicle before he had it towed. That is when he found the loaded gun which was in the console next to the driver=s seat in the automobile.  Appellant said that he had the weapon Aso he wouldn=t get carjacked.@  Appellant told Officer Sims that he had been carjacked before and that he did not want to be carjacked again.  During cross-examination, Officer Sims testified that he became aware of the television set playing when he pulled his police car up beside appellant=s car.

The State=s final witness was Deputy Sheriff Roy William McDonald.  He is with the Identification Division of the Harris County Sheriff=s Department.  He testified that appellant=s fingerprints matched the fingerprints on the judgment and sentence in Cause No. 727,086, State of Texas vs. Robert Earl Harris, in the 182nd District Court of Harris County, Texas.  That judgment shows that appellant was convicted of a felony offense, unauthorized use of a vehicle, on August 8, 1996.

Appellant was the only other person who testified. He testified about his version of the events on May 17 when he was stopped on Rankin Road while driving his 1983 Cadillac.  He and a friend had left a club at approximately 2:00 a.m.  The car which he was driving had been given to him by his parents, and it was a Ashow car.@  Appellant testified that he did not activate the hydraulic system that night and that he never activated it when the car was in motion.  Appellant also testified that it was Aimpossible to drive and look at the T.V. at the same time.@ Appellant said that the television was for the passengers.  Appellant testified that the television set Awas not on@ when the police car pulled up beside him.  We need not discuss appellant=s testimony about the written statement which he signed that night because the trial court granted his motion to suppress the written statement.  During his cross-examination, appellant testified that the television set Awasn=t on@ when the police officer pulled up beside him, that he had never been carjacked, and that the police officer was Alying@ when the officer said that appellant told him that he carried the weapon to protect himself and to protect the car.    

Issues for Appellate Review

Appellant presents two issues for appellate review. First, he argues that the trial court abused its discretion in overruling his motion to suppress evidence. Then, he argues that the evidence was Alegally insufficient@ to prove beyond a reasonable doubt that he was in possession of a weapon.

Motion to Suppress

As a general rule, the appellate courts defer to the trial court=s Adetermination of the historical facts@ which are supported by the record, especially when the trial court=s fact findings are based on an Aevaluation of credibility and demeanor.@ Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App.1997).  In a suppression hearing, Athe trial court is the sole trier of fact@ and is the judge of  Athe credibility of the witnesses and the weight to be given their testimony.@ State v. Ballard, 987 S.W.2d 889, 891 (Tex.Cr.App.1999).  The trial court did not abuse its discretion in overruling appellant=s motion to suppress evidence of the gun which was found. 

The officers= testimony showed probable cause for the traffic stop.  Both of the officers testified that the television was on and that this was a violation.  See Footnote No. 2.  The outstanding warrant authorized the arrest, and the gun was found in the inventory search before the automobile was towed.  See, e.g.,  South Dakota v. Opperman, 428 U.S. 364 (1976).  Issue No. 1  is overruled.

Sufficiency of Evidence

In reviewing appellant=s claim that the evidence was Alegally insufficient,@ we are guided by the test stated in Jackson v. Virginia, 443 U.S. 307, 318 (1979).  Also, we note that the trial court was Athe exclusive judge@ of the facts proved and of the weight to be given to the testimony.  As fact finder, the trial court had the power to resolve the conflicts in the testimony.  See, e.g., Adelman v. State, 828 S.W.2d 418, 421 (Tex.Cr.App.1992).  The proof showed that appellant owned and operated the car in which the loaded gun was found and that the gun was readily accessible to where appellant was sitting at the time of his arrest.  This evidence was Alegally sufficient@ to permit a rational fact finder to find beyond a reasonable doubt that appellant was in possession of the gun.  Issue No. 2 is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

April 3, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Wright, J., and

McCall, J., and Dickenson, S.J.^[6]

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^[1]TEX. PENAL CODE ANN. ' 46.04 (a) (Vernon 2003) provides that a person who has been convicted of a felony commits an offense if that person possesses a firearm after conviction and before the fifth anniversary of the person=s release from confinement or supervision. The offense is a felony of the third degree.

^[2]TEX. TRANSP. CODE ANN. ' 547.611 (Vernon 1999) provides in subsection (a) that: AA motor vehicle may be equipped with video receiving equipment, including a television and similar equipment, only if the equipment is located so that the video display is not visible from the operator=s seat.@  (Emphasis added)

^[3]We need not discuss the statement which Officer Starks took from appellant because the trial court suppressed that statement.  We also need not discuss whether the hydraulic system was being operated and whether there was also a violation of TEX. TRANSP. CODE ANN. ' 547.305 (Restrictions on Use of Lights) (Vernon Supp. 2003) because the trial court=s ruling was based on the television set which was being operated within the view of appellant while he was the driver of the car.

^[4]As noted in Footnote No. 3, we need not discuss this officer=s testimony about appellant=s operation of the hydraulic system on his car (which could have caused a violation of Section 547.305) because the testimony about the television set was the basis of the trial court=s ruling on the motion to suppress.

^[5]As noted in Footnote No. 3, we need not discuss the testimony about the written statement which appellant signed.

^[6]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.