Don Watley v. State ( 2012 )

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
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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
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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).
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