Harold Don Rogers v. The State of Texas--Appeal from of County

IN THE

TENTH COURT OF APPEALS

No. 10-92-280-CR

HAROLD DON ROGERS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law

Johnson County, Texas

Trial Court # M91-03505

O P I N I O N

A jury found Harold Rogers guilty of indecent exposure and assessed punishment at forty-five days in jail and a $750 fine. Roger argues that the information was fundamentally defective. He further contends that the court erred in denying his motion to suppress the evidence seized as a result of an illegal stop and arrest. We affirm.

On November 18, 1991, Angel Graywolf, an employee at the Sonic Drive-In in Burleson, served Rogers a large chocolate milk shake he had ordered. As she handed Rogers his shake, she noticed that he did not have on any pants or underwear and his genitals were exposed. After handing Rogers his change, Graywolf ran back inside.

Graywolf immediately reported the incident to her boss, Kristal Elliot, who phoned the police. Both women watched Rogers leave the Sonic by the rear exit and drive behind the bank in the adjacent office complex while Elliot was on the phone with the police dispatcher. Elliot described the car as a brown and gold two-tone Pontiac Grand Am with a license plate containing the numbers "33" in sequence. She also described the driver as a white male wearing a white t-shirt.

The police dispatcher broadcast the description given by the witnesses and dispatched two marked police units to the Sonic. As officer Waits neared the drive-in, he saw a gold Pontiac Grand Am coming from the direction of the Sonic. The car was being driven by a white male, wearing a white t-shirt, and the license plate contained the numbers "33" in sequence. Waits, after confirming the description, stopped the vehicle for investigative purposes.

Waits approached the vehicle and Rogers handed Waits his driver's license. Waits noticed a cup with the Sonic logo on it sitting on the console of the car. Waits then checked the car's registration through his dispatcher. Waits explained to Rogers that there was a "situation" unfolding at the Sonic, but that he did not know the details. The two men then waited for Officer Carson to arrive.

Waits testified that during this time Rogers was not under arrest, but was briefly detained for investigative purposes. At approximately 8:35 p.m., four minutes after the stop and only ten minutes after the initial dispatch, Carson arrived and read Rogers his Miranda warnings prior to any questioning about what had happened at the Sonic. Rogers then told the officers that he had been at the Sonic and had purchased a chocolate milk shake.

Waits called the dispatch officer so that he could get a more detailed description of the suspect and what he had ordered. Graywolf stated that the suspect was a white male, in his mid-twenties, with brown hair and possibly a mustache. She also said that he had only ordered a chocolate milk shake.

Based on the information received from the dispatcher, Waits continued to detain Rogers until his supervisor, Sergeant Mattix, arrived a few minutes later. Mattix sent Officer Baker to the Sonic to bring Graywolf and Elliot to the scene of the stop. While he waited for Graywolf and Elliot to arrive, Mattix spoke with Rogers, who admitted he had exposed himself.

At approximately 8:40 p.m., only fifteen minutes after the original dispatch and only nine minutes after the investigative stop, Baker returned to the scene of the stop with Graywolf and Elliot. The women positively identified Rogers as the man who had exposed himself. Rogers was then taken into custody for indecent exposure.

In his first point Rogers contends that the court erred in failing to quash the information as fatally defective. Rogers filed a motion to quash the original information, which was later amended. He never filed a motion to quash the amended information.

Rogers waived any complaint about the form or substance of the amended information on which he was tried and convicted by not attacking it in the trial court. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 1993). We overrule point one.

In his third point, Rogers argues that the court abused its discretion by failing to suppress evidence obtained as a result of an illegal arrest. The test to determine probable cause to arrest is whether, at the moment the arrest was made, the facts and circumstances known by the officer, or of which he has reasonably trustworthy information, were sufficient to warrant a prudent man to believe that the suspect had committed, or was committing, an offense. Adams v. Williams, 407 U.S. 143, 148, 92 S. Ct. 1921, 1924, 32 L. Ed. 2d 612 (1972). At the moment of the arrest, Officer Waits either knew, or had reasonably trustworthy information, that: (1) a crime had been committed at the Sonic Drive-in minutes earlier; (2) the victim and a witness had immediately called the police; (3) the suspect was a white male wearing a white t-shirt and driving a gold Pontiac Grand Am; (4) the license plate on the vehicle included the numbers "33" in sequence; (5) the vehicle was seen leaving the rear of the Sonic behind the bank; (6) Waits was less than a half mile from the Sonic when he saw a gold Grand Am with "33" in sequence on the license plate; (7) Waits confirmed the description with the dispatcher; (8) Waits stopped the car six minutes after the initial dispatch; (9) Waits observed a cup with the Sonic logo in the front of the vehicle; (10) Rogers had been to the Sonic; (11) Rogers had ordered only a chocolate milk shake at Sonic; (12) Rogers and his car fit the description given by Graywolf and Elliot; (13) Rogers told Sergeant Mattix that he had exposed himself; and (14) Graywolf and Elliot positively identified Rogers as the man who had exposed himself at the Sonic.

These factors, viewed in the light of Waits' training and experience, were sufficient to warrant a man of reasonable prudence to believe Rogers had committed an offense that was either a breach of the peace or a felony. See id.; Tex. Code Crim. Proc. Ann. art. 14.03 (Vernon 1977). Thus, we find that the officers properly arrested Rogers upon probable cause to believe he had committed a crime. Because the evidence was seized as incident to a legal arrest, we overrule point three.

Rogers' second point, that the court abused its discretion by not suppressing the evidence obtained as a result of an illegal stop, is not reached because we have already determined that the evidence was properly seized in connection with his legal arrest.

We affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed July 14, 1993

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