JOHN EDWARD VAUGHN, JR., Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Issued January 24, 1992
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-91-00205-CR
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JOHN EDWARD VAUGHN, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F90-52260-RI
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O P I N I O N
Before Justices Whitham, Ovard, and Maloney
Opinion By Justice Maloney
        A jury convicted John Edward Vaughn, Jr. of aggravated robbery and assessed a twenty-one year sentence and a $2000 fine. Appellant asserts in five points of error that the trial court erred in overruling his motion to suppress, admitting his confession into evidence, and overruling his objections to hearsay. We affirm the trial court's judgment.
STATEMENT OF FACTS
        Dallas Police Officer Paul Jez responded to an aggravated robbery call at a Ferguson Road 7-Eleven. The complainant described the robbers as two black males. He also gave a description of their height, weight, and clothing.
        As Jez returned to the parking lot, a man approached him to ask if anyone was hurt. The man told Jez that he saw two black males run from the store, cross the street, jump into a car, and speed away. He described the car as a yellow 70's model Chevrolet Impala. The car had raised white-lettered tires and a CB antenna. There was another black male waiting in the car. Because the witness was anxious to leave, Jez did not get the witness's name.
        After Officer Farrow arrived at the scene, Jez described the suspects and their car to him. The two officers drove separate cars to search for the robbers and their car. FN:1
        Within minutes, the officers spotted a yellow car. When Jez stopped the car, he realized it was a Ford and did not match the description of the suspect car. After briefly detaining the Ford, the officers saw a second yellow car. They followed the second car. The car's driver committed several traffic violations. Finally, the car tried to make a turn where there was no place to turn.
        The officers stopped the second car. Jez testifed they had two reasons for stopping the car: (1) to check for a possible intoxicated driver because of the erratic driving and (2) to see if it was the robber's car.
        When the officers stopped the car, they realized it had raised white letter tires, a CB antenna, and at least four occupants. The car's occupants also matched the 7-Eleven robber's description. The officers ordered the occupants out of the car. Four men got out. Farrow saw appellant moving around trying to hide when he checked the car's interior. The officers discovered a .38 pistol directly under the seat where appellant was hiding.
        The officers arrested appellant and the occupants. At the police station, appellant met with Detectives Cornett and Decort. When Cornett advised appellant of his Miranda rights, he replied that he understood his rights. Appellant admitted robbing the 7-Eleven to Cornett and said he wanted to make a statement. Later that morning, Decort met with appellant to get the statement. Decort also advised appellant of his Miranda rights. Appellant signed a confession.
        The 7-Eleven clerk also testified and identified appellant as the gunman who robbed him.
MOTION TO SUPPRESS
        In his first point of error, appellant contends there was no probable cause to stop the car and the police illegally seized the gun. Appellant claims that the officers' traffic stop was a pretext stop to search for evidence of the aggravated robbery. The State contends the officers properly stopped the car because of (1) traffic violations and (2) an investigative detention.
a. Standard of Review
        We review evidence from suppression hearings in the light most favorable to the trial court's ruling. Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982). The trial court is the sole judge of the witnesses' credibility in a pretrial hearing. Walker v. State, 588 S.W.2d 920, 924 (Tex. Crim. App. [Panel Op.] 1980). We do not disturb the trial court's findings unless it abused its discretion. Id.
1. Investigative Detention
        Circumstances short of probable cause for arrest may justify temporary detention to investigate. Leighton v. State, 544 S.W.2d 394, 396 (Tex. Crim. App. 1976). A police officer may briefly stop a suspicious individual to determine his identity or to maintain his status quo while obtaining more information. Gearing v. State, 685 S.W.2d 326, 327-328 (Tex. Crim. App. 1985). Officers can briefly detain occupants of an automobile. Adams v. Williams, 407 U.S. 143 (1972); Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1983).
        Because a temporary detention intrudes on an individual's security less than a formal arrest, reasonable suspicion of criminal activity authorizes a temporary seizure for questioning. Perez v. State, 818 S.W.2d 512, 515-16 (Tex. App.--Houston [1st Dist.] 1991, no pet.), citing United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975). That questioning is limited to the purpose of the stop. Id. The Court of Criminal Appeals of Texas held:
    In order to justify the intrusion, the law enforcement officer must have specific articulable facts which, in light of his experience and personal knowledge, together with other inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen detained for further investigation.
 
* * *
    There must be a reasonable suspicion by the officer that some activity out of the ordinary is occurring or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to a crime.
 
Johnson v. State, 658 S.W.2d at 626.
 
        Sufficient reasons to make an investigative stop are:
    (1) When the detained person bears similarity to a robbery suspect's description and car was substantially similar to the suspect's car description. Griffin v. State, 683 S.W.2d 16, 17 (Tex. App.--Waco 1984, no pet.)
    (2) A car parked, with motor running and lights off, and a defendant slouched in the seat, in parking lot where recent criminal activity and arrests occurred. Gearing v. State, 685 S.W.2d at 329; and
    (3) Information that persons fitting the physical description of robbers had returned to previously robbed store and parked in same location. Watson v. State, 734 S.W.2d 60, 61 (Tex. App.--Houston [1st Dist.] 1987, no pet.)
2. "Pretext Stops"
        The "pretext doctrine" does not apply when "police do no more than they are objectively authorized and legally permitted to do." Gordon v. State, 801 S.W.2d 899, 909, 911 (Tex. Crim. App. 1990). If the police conduct is objectively reasonable, we do not review the officer's subjective intentions, suspicions, or motivations. Id. at 910-911.
 
3. Warrantless Arrest
        To justify a warrantless arrest, the State must show the existence of probable cause at the time of the arrest and the circumstances making a warrant impractical. Reed v. State, 522 S.W.2d 916, 917 (Tex. Crim. App. 1975). The test for probable cause for a seizure without a warrant is:
    Whether at that moment the facts and circumstances within the officer's knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrested person] had committed or was committing an offense.
 
Britton v. State, 578 S.W.2d 685, 689 (Tex. Crim. App. 1979), cert. denied, 445 U.S. 955, citing Beck v. Ohio, 379 U.S. 89, 91.
4. Search of Car
        An officer may take every reasonable precaution to safeguard his life while making an arrest, even when the arrest is initially non-custodial. See Lewis v. State, 502 S.W.2d 699, 702 (Tex. Crim. App. 1973). Justification exists if the officer reasonably believes he is in danger of bodily harm or that the person is armed and dangerous. Id. An officer may search the passenger compartment during an investigative detention. Michigan v. Long, 463 U.S. 1032, 1049 (1983).
        "[S]pecific and articulable facts which, taken together with the rational inferences from those facts, [may] reasonably warrant" an officer's belief that the suspect may gain immediate control of the weapons." Id. A lawful custodial arrest of the occupants of a car, justifies a search of the passenger compartment. Satterwhite v. State, 726 S.W.2d 81, 87 (Tex. Crim. App. 1986), rev'd on other grounds, 486 U.S. 249 (1988).
b. Application of Law to Facts
(1) Initial Stop and Investigative Detention
        Officer Jez testified that he saw the driver of the car commit traffic violations. These violations alone justified the initial stop. We do not review an officer's subjective intentions to determine if there was a "pretext stop".
        Furthermore, the car and its occupants fit the descriptions of the men who had just robbed the 7-Eleven store. These facts justified the officers' initial stop and detention for investigative purposes.
        After the stop, appellant tried to hide from the officers. This, when coupled with the other circumstances surrounding the stop, justified the officers' connecting appellant with the criminal activity.
        The record contains specific, articulable facts for the officers' suspicion that criminal activity had been committed and that appellant was involved in that activity. The evidence, viewed in the light most favorable to the trial court's conclusion, justifies the investigative detention.
(2) Search Incident to Investigative Detention
        The record reflects that the car and men matched the description of the suspects of the aggravated robbery committed about an hour earlier. The officers had reasonable grounds to believe they were in danger of bodily injury because the men were armed and dangerous. Appellant hid in the car after the officers' ordered all occupants out of the car. When the officers checked the car, appellant was moving around and making furtive gestures. These gestures were not consistent with innocent activity.
        These specific and articulable facts and the rational inferences from those facts warranted the officers' belief that appellant might gain immediate control of a weapon. The officers were justified in the limited search conducted for their protection.
(3) Search Incident to Lawful Arrest
        Alternatively, these facts warrant the officers' belief that appellant was connected to the aggravated robbery. Probable cause exists for appellant's valid arrest. Therefore, the search conducted was a valid warrantless search made incident to a lawful arrest.
        The trial court properly denied appellant's motion to suppress the seized gun. We overrule appellant's point of error number one.
CONFESSION
        In his third point of error, Appellant maintains his confession is inadmissible because he did not knowingly, intelligently, and voluntarily waive his rights. Tex. Code Crim. Proc. Ann. art. 38.22, §2(a) (Vernon 1979).
a. Standard of Review
        We determine whether a defendant waives his right to remain silent and have counsel present during questioning from the totality of the circumstances surrounding the confession. Harville v. State, 591 S.W.2d 864, 866 (Tex. Crim. App. 1979). A waiver of counsel need not be express. The judge at the suppression hearing is the sole judge of the witnesses' credibility and the evidentiary weight. Walker, 588 S.W.2d at 924. He may believe or disbelieve all or any part of any witness' testimony. Harville, 591 S.W.2d at 867.
 
b. Application of Law to Facts
        Detectives Decort and Cornett each advised appellant of his right to remain silent and to have counsel present during questioning. Appellant replied that he understood his rights and never requested an attorney. Each page of appellant's written statement bears the required warnings. Appellant signed each page indicating his voluntary waiver of rights. The evidence supports the trial court's finding that appellant knowingly, intelligently, and voluntarily waived his constitutional rights.
        We overrule point of error three.
HEARSAY
        In his second point of error, appellant complains of hearsay testimony admitted during the suppression hearing. Hearsay is admissible to show probable cause to arrest or search. Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982). We overrule point of error two.
        In his fourth and fifth point of error, Appellant contends the trial court erred in overruling his objections to hearsay during the trial. Appellant objected to Jez's testimony about the unidentified witness's statements describing the suspects and the car. The State contends appellant waived error by not objecting after the hearsay testimony.
a. Standard of Review
        Failure to object timely waives any error and presents nothing for review. Thompson v. State, 691 S.W.2d 627, 635, (Tex. Crim. App. 1984), cert. denied 474 U.S. 865 (1985). To be timely, the party must object as soon as the ground of objection becomes apparent. Id.
b. Application of Law to Facts
        It is uncontested that the complained of answers were hearsay. The record reflects appellant objected to the questions as soon as asked and before the witness gave his answer. Appellant objected as soon as the ground of objection became apparent. The trial court's adverse ruling preserved any error for review. Appellant is not required to repeat the same objection after Jez gave his answer. Appellant preserved error.
c. Harm Analysis
        Assuming without deciding the trial court erred, we must determine whether that error was harmless. Tex. R. App. P. 81(b)(2). Error is harmless if we can determine beyond a reasonable doubt that the error made no contribution to the conviction. Id.
        The complainant identified appellant as the robber. Appellant signed a written confession admitting his participation in the crime. Any error in admitting the unidentified witness's description of the suspects and their car was harmless. We overrule points four and five.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          FRANCES MALONEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
910205F.U05
 
FN:1 Jez testified there was approximately thirty to forty-five minutes from the time he responded to the call until he and Farrow began looking for the suspect vehicle.
 
File Date[01-23-92]
File Name[910205F]