No. 14-03-00632-CR
Opinion filed July 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 339th District Court, Harris County, Texas, Trial Court Cause No. 934,130. Affirmed.
Panel consists of Justices FOWLER, EDELMAN, and SEYMORE. (EDELMAN, J. concurs in result only.)
CHARLES W. SEYMORE, Justice
A jury found appellant, Mark Edward Wright, guilty of possession of a firearm by a felon. In his sole issue, he contends the trial court erred in denying his motion to suppress the firearm because it was seized during an illegal search. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.
Background
On the night of May 19, 2002, Deputy Constables Belmares and Tellez responded to a report that a man with a gun was banging on the front door of a home. When the deputies arrived at the home, appellant was standing in the yard. Another man was sitting in the driver's seat of appellant's Suburban parked on the street in front of the house. The deputies handcuffed appellant and the other man, but they did not arrest them at that time. While appellant was detained, Deputy Belmares used a flashlight to look through the rear windows of the Suburban. He saw, and then retrieved, a handgun lying on top of a duffel bag. Appellant filed a motion to suppress the handgun, which the trial court denied. Discussion
In his sole issue, appellant claims the trial court erred in denying his motion to suppress because the search of his vehicle violated his rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, and Article I, Section 9 of the Texas Constitution. Although appellant contends that the deputies' conduct violated his rights under both the United States and Texas constitutions, he does not indicate how his rights under the Texas Constitution exceed or differ from his rights under the United States Constitution. Therefore, we will only consider his federal constitutional argument. See Arnold v. State, 873 S.W.2d 27, 33 n. 4 (Tex.Crim.App. 1993). We review a trial court's ruling on a motion to suppress for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999). Additionally, the trial court is the sole trier of fact as well as the judge of the credibility of witnesses and the weight to be given their testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App. 1999). When a trial court does not make explicit findings of fact, we assume the trial court made the implicit findings of fact that are supported by the record. Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000). Appellant claims the search was illegal because it was not a proper protective sweep, and the deputies lacked probable cause to search appellant's vehicle. The State contends the search in this case did not violate any of appellant's rights because it satisfied the "plain view" doctrine. The observation and seizure of property in plain view involves no invasion of privacy. Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App. 2000) (citing Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 2306 (1990)). The "plain view" doctrine requires that (1) law enforcement officials have a right to be where they are, and (2) it is immediately apparent that the item seized constitutes evidence, that is, there is probable cause to associate the item with criminal activity. Id. Here, deputies were in a place they had a lawful right to be — on a street in front of a residence where they were responding to an emergency call. Additionally, Deputy Belmares' action of using a flashlight to look into appellant's vehicle did not constitute a search. See Texas v. Brown, 460 U.S. 730, 739-40, 103 S.Ct. 1535, 1542 (1983); Swarb v. State, 125 S.W.3d 672, 680 (Tex.App.-Houston [1st Dist.] 2003, pet. dism'd); see also Walter, 28 S.W.3d at 543-44. Deputy Belmares saw the handgun in plain view in the vehicle, and there was probable cause to associate the gun with criminal activity. See TEX. PEN. CODE ANN. § 46.02 (Vernon 2003) (providing that a person commits an offense if he carries a handgun). Accordingly, the seizure of the handgun was reasonable under the "plain view" doctrine, and appellant's motion to suppress was properly denied. We overrule appellant's issue. The judgment of the trial court is affirmed.