Burgess John Beall v. State

Beall v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-95-00215-CR

Burgess John Beall, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY

NO. 417769, HONORABLE DAVID CRAIN, JUDGE PRESIDING

Appellant was convicted of unlawfully carrying a weapon ("UCW"). Tex. Penal

Code Ann. § 46.02 (West 1994). (1) After the trial court overruled his suppression motion,

appellant pleaded no contest. The court sentenced appellant to 120 days in jail and assessed a

$1,500 fine, both suspended for one year. In a single point of error, appellant alleges that the trial

court erred in overruling his suppression motion. We will affirm the judgment of conviction.

BACKGROUND

Around seven o'clock in the morning of June 3, 1994, Conley Sullivan found

appellant in an Austin parking lot, passed out in his car and slumped over, face down, onto the

passenger side floorboard. Sullivan called EMS to the scene. Some fifteen minutes later, Officer

Perry of the Austin Police Department received a call of a "person slumped over in a vehicle" in

the Discount Tires parking lot on Ben White Boulevard.

When Perry arrived at the scene, appellant was standing by the rear-driver's side

of his car speaking with EMS personnel. Perry noticed a prescription medicine bottle on the

dashboard of the car. The driver's door was fully open. Perry reached in the car through the

door and took the bottle. According to Perry, as he reached inside, he observed a gun holster in

the open glove compartment. At this point, appellant pushed the EMS technician aside, "lunged"

toward Perry, and told him not to search the car. Perry pushed appellant aside, placed him in

handcuffs, radioed for back-up, and waited for Officer Crippen, the back-up officer, to arrive.

When Crippen arrived, Perry informed him that he saw a holster in the open glove

compartment. Crippen testified that he approached the closed car door on the passenger side,

looked inside through the closed window, saw a knife on the passenger floorboard and the butt

of a pistol in the open glove compartment, opened the passenger door, and removed the weapons.

Appellant was charged with unlawfully carrying a pistol. After the trial court overruled his

motion to suppress the pistol as evidence, appellant pleaded no contest and was convicted.

DISCUSSION

In a single point of error, appellant complains that the trial court erred in overruling

his motion to suppress. Appellant specifically argues that the officers illegally searched his car

and seized the handgun without a search warrant in violation of both the federal and state

constitutions. U.S. Const. amend. IV.; Tex. Const. art. I, § 9. The State responds that the

officers legally seized the pistol pursuant to the "plain view" doctrine.

We note first that appellant does not separately brief or distinguish his federal and

state constitutional arguments. Thus, the point of error can be overruled as multifarious.

Heitman v. State , 815 S.W.2d 681 , 690-91 n.23 (Tex. Crim. App. 1991); McCambridge v. State ,

712 S.W.2d 499 , 502 n.9 (Tex. Crim. App. 1986), cert. denied , 495 U.S. 910 (1990). Even

considering the matter on the merits, however, we nevertheless overrule the complaint.

At a hearing on a motion to suppress, the trial court is the sole judge of the

credibility of the witnesses and of the weight to be given to their testimony. Romero v. State , 800

S.W.2d 539, 543 (Tex. Crim. App. 1990); Carr v. State , 774 S.W.2d 379, 380 (Tex.

App.--Austin 1989, no pet.). In reviewing a ruling on a motion to suppress, the evidence is

viewed in the light most favorable to the trial court's ruling. Romero , 800 S.W.2d at 543 . If the

trial judge's decision can be upheld on any theory of law applicable to the case, the ruling will

not be disturbed. Romero , 800 S.W.2d at 543 .

It is well settled that officers may seize items in "plain view" without a warrant

when (1) the officer is in a proper position to view the object, i.e. , the police have a right to be

where they are when the discovery is made; and (2) it is "immediately apparent" to the police that

they have evidence before them, i.e. , there exists probable cause to associate the evidence with

criminal activity. Haley v. State , 811 S.W.2d 600, 603 (Tex. Crim. App. 1991); Joseph v. State ,

807 S.W.2d 303, 308 (Tex. Crim. App. 1991) (citing Horton v. California , 496 U.S. 128, 134-136 (1990)).

In the instant cause, viewing the evidence in the light most favorable to the ruling,

Crippen looked through the car window and saw the pistol in an open glove compartment while

standing outside the car in a public parking lot. Crippen clearly had the right to stand in a public

parking lot beside the car and view its interior, thus satisfying the first criterion of the "plain

view" exception. See, e.g., Meredith v. State , 603 S.W.2d 872, 873 (Tex. Crim. App. 1980) (no

protected privacy interest when police viewed marijuana cigarette butt inside car parked in public

parking lot).

Appellant responds that Crippen's seizure was improper because he would never

have looked into the car but for Perry's earlier unlawful entry into the car. Appellant argues that

Perry (1) had no probable cause to search the car based on his observation of a prescription pill

bottle; (2) observed the holster while conducting his illegal search; (3) only suspected that there

might be a pistol in the car based on his tainted observation of the holster; and (4) therefore

tainted Crippen's impressions such that his search was illegal, as well.

In focusing on Perry's impressions instead of Crippen's, appellant emphasizes the

old "inadvertence" requirement of the "plain view" exception which has since been abandoned.

Horton , 496 U.S. at 130 ; Haley , 811 S.W.2d at 603 ; Joseph , 807 S.W.2d at 308 . According to

appellant, Crippen did not inadvertently view the pistol; rather, he intentionally "sought out" the

pistol because Perry warned him of its presence. Because inadvertency is no longer a required

criterion of the "plain view" exception, we find appellant's argument misplaced.

Concerning the second criterion of the "plain view" exception, Crippen testified that he

saw a pistol in the open glove compartment of the car. Crippen's testimony established that it was

"immediately apparent" that he had evidence of a crime before him. Given that he observed a

pistol in appellant's car, Crippen was reasonably able to conclude that appellant was involved in

the criminal activity of unlawfully carrying a handgun.

Appellant responds that Crippen did not have probable cause to associate the pistol

with any criminal activity by appellant because (1) the weapon was not found "on or about"

appellant's person; and therefore (2) there was no evidence to show that appellant "asportated"

the weapon.

In so arguing, appellant confuses probable cause with the evidence required to

prove commission of the offense. Indeed, the case upon which appellant relies for his argument,

Christian v. State , 686 S.W.2d 930 (Tex. Crim. App. 1985), addresses the sufficiency of the

evidence to prove an UCW conviction, not whether there was probable cause to seize the

contraband. Probable cause is a flexible, common sense standard. It merely requires that the

facts available to the officer would warrant an individual of reasonable caution to believe that

certain items may be contraband or useful evidence of a crime. Texas v. Brown , 460 U.S. 730,

742 (1983); see also Joseph , 807 S.W.2d at 303 . In order to establish probable cause, the State

was not required to prove conclusively every element of the offense. Taken in the light most

favorable to the ruling, Crippen's observations and impressions would have led a person of

reasonable caution to believe that the pistol was evidence of a crime.

Having determined that the officers' seizure was valid pursuant to the "plain view"

doctrine, we overrule appellant's sole point of error.

CONCLUSION

We affirm the trial court's judgment of conviction.

Marilyn Aboussie, Justice

Before Justices Aboussie, B. A. Smith and Dally *

Affirmed

Filed: March 13, 1996

Do Not Publish

* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment.

See Tex. Gov't Code Ann. § 74.003 (b) (West 1988).

1. This offense took place before September 1, 1994 and is governed by the law in

effect at the time the offense occurred. Because the code amendments effective September

1, 1994 have no substantive effect on this offense, we cite the current code for

convenience.

nd (4) therefore

tainted Crippen's impressions such that his search was illegal, as well.

In focusing on Perry's impressions instead of Crippen's, appellant emphasizes the

old "inadvertence" requirement of the "plain view" exception which has since been abandoned.

Horton , 496 U.S. at 130 ; Haley , 811 S.W.2d at 603 ; Joseph , 807 S.W.2d at 308 . According to

appellant, Crippen did not inadvertently view the pistol; rather, he intentionally "sought out" the

pistol because Perry warned him of its presence. Because inadvertency is no longer a required

criterion of the "plain view" exception, we find appellant's argument misplaced.

Concerning the second criterion of the "plain view" exception, Crippen testified that he

saw a pistol in the open glove compartment of the car. Crippen's testimony established that it was

"immediately apparent" that he had evidence of a crime before him. Given that he observed a

pistol in appellant's car, Crippen was reasonably able to conclude that appellant was involved in

the criminal activity of unlawfully carrying a handgun.

Appellant responds that Crippen did not have probable cause to associate the pistol

with any criminal activity by appellant because (1) the weapon was not found "on or about"

appellant's person; and therefore (2) there was no evidence to show that appellant "asportated"

the weapon.

In so arguing, appellant confuses probable cause with the evidence required to

prove commission of the offense. Indeed, the case upon which appellant relies for his argument,

Christian v. State , 686 S.W.2d 930 (Tex. Crim. App. 1985), addresses the su