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Dismissed and Memorandum Opinion filed October 29,
2010.
In
The
Fourteenth
Court of Appeals
NO. 14-10-00655-CR
Charles James Lehman,
Appellant
v.
The State of
Texas, Appellee
On Appeal from
the 177th District Court
Harris County, Texas
Trial Court
Cause No. 1205206
MEMORANDUM OPINION
Charles James Lehman has failed to pay
the appellate filing fee. See Tex.
R. App. P. 5 (requiring payment of fees in civil cases unless indigent); Order Regarding Fees
Charged in Civil Cases in the Supreme Court and the Courts of Appeals, Misc.
Docket No. 12-9246 (Tex. Jul. 16, 2012) (listing fees in court of appeals); Tex.
Fam. Code Ann. ' 3.202(c) (Vernon Supp. 2009) (same). After being notified
that this appeal was subject to dismissal, appellant Charles James Lehman did
not adequately respond. See Tex. R. App. P. 5 (allowing enforcement of
rule); 42.3(c) (allowing involuntary dismissal of case).
Accordingly, the appeal is ordered dismissed.
We further order that
appellant pay all costs of this appeal.
We further order this decision
certified below for observance.
PER
CURIAM
Panel consists of Justices Anderson,
Frost, and Seymore.
Do Not Publish — Tex. R. App. P. 47.2(b).
APPENDIX
NOTE
The
Clerk’s Record was filed on June 3, 2010.
The
Reporter’s Record was filed on July 16, 2010.
NUMBER 13-10-00637-CR
In
The
Court of Appeals
For The
Thirteenth
District of Texas
NO. 13-10-00637-CR
THE STATE OF TEXAS, APPELLANT
V.
CHARLES JAMES LEHMAN, APPELLEE
On Appeal from the 177th District Court
Harris
County, Texas
Trial Court Cause No. 1205206
MEMORANDUM
OPINION
The
State of Texas appeals the trial court’s granting of appellee Charles James
Lehman’s motion to suppress. We reverse and remand.
Background
Houston
police officers responded to a 911 call indicating that a person was waving a
gun from his car in the parking lot of an apartment complex. Officers arrived
at the scene at about the same time as Officer C. Rangel, an officer with the
Harris County Constable’s Office who was responding to the call of a “woman in
a pickup truck driving recklessly.”
Officer
Rangel parked his car in front of a Dodge Durango in which he saw three or four
people sitting. Officer Rangel was standing beside the Durango when the
windows were lowered and the driver, appellant Charles James Lehman, looked out
the window, then yelled “Gun!” before the window went up again.
Officer
Rangel drew his weapon and ordered Lehman and his passengers to exit the
Durango. A subsequent search of Lehman’s vehicle yielded a loaded 9mm
semi-automatic pistol. Lehman was arrested.
Motion to
Suppress
In
a single issue, the State contends that the trial court erred in granting
Lehman’s motion to suppress.
Standard
of Review
We
review a trial court’s ruling on a motion to suppress for an abuse of
discretion. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App.
2005); see Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.
2000). In so doing, we give almost total deference to the trial court’s
findings of historical fact that are supported by the record and to its
application of law to fact questions if the resolution of those questions
turns on an evaluation of credibility and demeanor. Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In this case, the trial court is
the sole factfinder, and we view the evidence in the light most favorable to
its ruling. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App.
2007). We afford almost total deference to the trial court’s rulings on mixed
questions of law and fact when those rulings turn on an evaluation of
credibility and demeanor. Guzman, 955 S.W.2d at 89. When, as in
this case, the trial court does not make explicit findings of fact, we review
the evidence in a light most favorable to the trial court’s ruling and assume
the trial court made implicit findings of fact supporting its ruling, if those
findings are supported by the record. Ford v. State, 158 S.W.3d 488,
493 (Tex. Crim. App. 2005).
As
the sole judge of the credibility of the witnesses and the weight given their
testimony, the trial court was free to believe or disbelieve all or part of the
witnesses’ testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.
App. 2000). We will sustain the trial court’s ruling if it is reasonably
supported by the record and is correct on any theory of law applicable to the
case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).
Analysis
The
Fourth Amendment to the United States Constitution provides that the people
shall be secure “in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” The corresponding provision of the Texas
Constitution states, “The people shall be secure in their persons, houses,
papers and possessions, from all unreasonable seizures or searches, and no
warrant to search any place, or to seize any person or thing, shall issue
without describing them as near as may be, nor without probable cause,
supported by oath or affirmation.” See U.S. Const. amend. IV; Tex. Const.
art. I, § 9.
Under
both federal and state law, an officer may stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion to believe
that the person is involved in criminal activity. Terry v. Ohio, 392
U.S. 1, 21–22, 88 S. Ct. 1868, 1880 (1968); Ford, 158 S.W.3d at 492.
“Reasonable suspicion” exists when, based on the totality of the
circumstances, the officer has specific, articulable facts that, when
combined with rational inferences from those facts, would lead him to
reasonably conclude that a particular person is, has been, or soon will be
engaged in criminal activity. Ford, 158 S.W.3d at 492. This
objective standard disregards the officer’s subjective intent and looks solely
to whether an objective basis for the stop exists. Garcia v. State,
43 S.W.3d 527, 530 (Tex. Crim. App. 2001).
The
first issue in a motion to suppress hearing is the defendant’s initial burden
to rebut the presumption of proper police conduct. Ford, 158 S.W.3d at
492. The burden then shifts to the State to prove the reasonableness of the
search or seizure. Id. The State can meet this burden by proving that
the search or seizure was reasonable under the totality of the circumstances. Id.
Under the totality of the circumstances, the reasonableness of a search or
seizure is measured by an objective standard that disregards the officer’s
subjective intent and looks solely to whether the facts available to the
officer at the moment of the search or seizure warranted a man of reasonable
caution in the belief that the action taken was appropriate. Brigham v.
State, 382 S.W.3d 563, 571 (Tex. App.—Houston [14th Dist.] 2012, pet.