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 
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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

 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).