Jerry Wayne Henderson v. The State of Texas--Appeal from County Court at Law No 9 of Bexar County

MEMORANDUM OPINION

No. 04-01-00700-CR

Jerry Wayne HENDERSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law No. 9, Bexar County, Texas

Trial Court No. 777176

Honorable Wayne Anthony Christian, II, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: February 26, 2003

AFFIRMED

Jerry Wayne Henderson, the appellant, appeals an order denying his motion to suppress. After his motion to suppress was denied, Henderson pleaded guilty to the charge of unlawful carrying of a weapon. The trial court assessed punishment at one year with a $4,000 fine. On appeal, Henderson asserts the trial court erred in overruling his motion to suppress because the search that uncovered the incriminating evidence was invalid. Because all issues of law are settled, our opinion only advises the parties of the court's decision and basic reasons for it. See Tex. R. App. P. 47.4.

Background

On the evening of December 7, 2000, Officer Jose Molina received a radio dispatch of a robbery and a description of the robbery suspect. After receiving the dispatch, he assisted in setting up a "quadrant" in the Rittiman Road area to search for the robbery suspect. While on Rittiman Road, Officer Molina noticed Henderson, who physically matched the description of the suspect, standing between the door of a bar and his vehicle. When Officer Molina drove into the parking lot, he saw Henderson get into his vehicle. Officer Molina stepped out of his vehicle and approached Henderson who was seated in the driver's seat. As he approached Henderson to speak with him, Officer Molina noticed a marijuana cigarette butt in the ashtray. Officer Molina then asked Henderson to step out of the vehicle, and he placed him in handcuffs. An inventory search of Henderson's vehicle was then conducted, at which time narcotics and a handgun were discovered.

Motion to Suppress

In his sole issue on appeal, Henderson contends the trial court erred when it denied his motion to suppress. We review a trial court's ruling on a motion to suppress under the appropriate standards of review. See Carmoche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 87-88 (Tex. Crim. App. 1997); Morfin v. State, 34 S.W.3d 664, 666 (Tex. App.--San Antonio 2000, no pet.).

Henderson contends Officer Molina's search of his vehicle violated the Fourth Amendment because the search and seizure exceeded the permissible scope of Terry v. Ohio, 392 U.S. 1 (1968). Henderson asserts that when the marijuana, narcotics, and pistol were seized, no valid search warrant had been issued to search his vehicle. However, under the plain view doctrine, police officers may effect a search without a warrant when (1) the officers have a right to be where they are, and (2) it is immediately apparent that the seized item constitutes evidence (i.e., there is probable cause to associate that item with criminal activity). Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996).

Once Officer Molina saw the marijuana cigarette butt in plain view, he was justified in entering Henderson's vehicle to retrieve it because the possession of marijuana is a criminal offense. See Tex. Health & Safety Code Ann. 481.121 (Vernon Supp. 2002). Because this offense was committed within Officer Molina's presence or within his view, he had the authority to arrest Henderson without a warrant. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1977). After making a lawful arrest, Henderson's vehicle could be searched for the purpose of taking an inventory. Merideth v. State, 603 S.W.2d 872, 873 (Tex. Crim. App. 1980); Yaws v. State, 38 S.W.3d 720, 723 (Tex. App.--Texarkana 2001, pet. ref'd).

We hold that the trial court did not abuse its discretion in denying Henderson's motion to suppress. As such, we overrule Henderson's issue on appeal, and affirm the trial court's order denying the motion to suppress.

Paul W. Green, Justice

DO NOT PUBLISH