
                                          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 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 & Wild. 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).



