      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-06-00648-CR



                                Albert Jermain Clifton, Appellant

                                                   v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
       NO. D-1-DC-06-203379, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Albert Jermain Clifton appeals his convictions on two counts of aggravated

robbery. Tex. Penal Code Ann. § 29.03(a)(2) (West 2003). After the jury found appellant guilty

of both counts in a single indictment, the trial court assessed punishment when appellant pled “true”

to allegations that he had been previously convicted of two felonies. The trial court imposed

sentences of eighteen years’ imprisonment on each count. The sentences are to run concurrently.


                                       POINTS OF ERROR

               Appellant advances four points of error. First, appellant challenges the legal

sufficiency of the evidence to sustain the convictions for aggravated robbery based on the law

of parties. Second, appellant contends that the trial court erred in not giving appellant’s special

requested jury charge on the State’s burden to prove that appellant was criminally responsible for

the aggravating element of each offense. Third, appellant urges that the trial court erred in overruling
the motion to suppress physical evidence. Fourth, appellant asserts that the trial court abused its

discretion in admitting into evidence a co-conspirator’s hearsay statement.


                                          BACKGROUND

                About 6:45 a.m. on the morning of June 24, 2006, Hildegardo Garcia and his teenage

son, David, parked their Ford F-150 truck on Battle Bend Drive in Austin, Travis County, near

the KIA automobile agency. They were to pick up a friend of Hildegardo’s who owned a ranch

where they were to lay water lines later that day. David Garcia testified that he saw what appeared

to be a gold-colored Chrysler P.T. Cruiser stop at a nearby stop light and then the driver backed

the motor vehicle near their truck. David revealed that a young, slightly built Hispanic male wearing

a red shirt and baggy pants got out of the passenger side of the gold-colored car. He approached

David’s father, Hildegardo, who was in the driver’s seat of the truck. The Hispanic male, later

identified as Paul Serrato, pointed a silver and black pistol at Hildegardo and demanded money.

David said that his father struggled to get his wallet out of his pants, then opened his wallet to let

the dollar bills fall to the floorboard of the truck. His father then showed the empty wallet to Serrato

indicating that he had no money. At this point, according to David, Serrato came around the front

of the truck to the passenger side where David was seated next to an open window. Serrato pointed

the pistol at David’s chest and David began picking up the money from the floorboard. David

testified that at this time a large African-American male, six foot or so tall and twice the size of

Serrato, got out of the driver’s side of the gold-colored car, wearing a dark shirt with a red towel

around his neck. He was later identified as appellant Albert Clifton. David did not see any weapon

in appellant’s possession, but noted that appellant approached his father’s side of the truck while

                                                   2
Serrato held the pistol on him on the other side of the truck. It appeared to David that appellant

was talking to his father while he was handing money to Serrato at gunpoint. Appellant then looked

at David and, said to David “yeah, you too.” David interpreted this to mean that David should also

surrender his money. David estimated that he handed Serrato $150. David and his father were

instructed by Serrato to drive away, that they would be followed, to throw away their cell phones,

and not to call the police. Appellant got back into the driver’s seat of the gold car and Serrato got

in the passenger’s seat. David reported that they were followed by the gold car for some distance,

but when his father turned off the access road into a street, the gold car drove onto I-H 35. A partial

Texas license plate number “711” was observed on the gold-colored car. David and his father drove

to a friend’s house and called the police.

               Hildegardo generally corroborated his son’s testimony. Both testified that they had

not consented to the taking of their money by Serrato and that they had been placed in fear of their

lives at gunpoint. Hildegardo testified that there was $300 in his wallet, far more than David

estimated. Hildegardo recalled appellant got out of the gold car at the same time as Serrato and then

stood by that car. He did not remember appellant talking to him or saying anything to David.1 At

trial both Hildegardo and David Garcia made in-court identifications of appellant as a participant in

the armed robberies.

               Austin Police Officers Luis Delgado and James Morgan responded to the Garcias’

call and interviewed them at the friend’s home where they had driven. Officer Delgado talked


       1
          Hildegardo Garcia testified by use of a Spanish language interpreter. The prosecutor
pointed out in jury argument that appellant had briefly spoken to David in English that Hildegardo
may not have understood.

                                                  3
with Hildegardo in the Spanish language while Officer Morgan discussed the events with David.

Officer Delgado passed his information to Officer Morgan, who in turn gave information to the

police dispatcher who issued a BOLO (Be on the Lookout) to all police units. This included the

description of the two assailants, the goldish P.T.-type Cruiser, and the silver and black pistol. The

two police officers returned to their substation to write their reports. Within a short time, they

learned that suspects matching the descriptions in the BOLO had been detained. They went to

the scene of the detention where the vehicle and the suspects matched the descriptions given

by the Garcias.

                  Austin Police Officer Keith Wade was on patrol on the morning of Saturday, June 24,

2006. He had heard a BOLO about an aggravated robbery on Battle Bend Road which gave

the descriptions of the two suspects who had used a handgun. The BOLO described the vehicle as

a Chevrolet HHR which resembled a P.T. Cruiser with a partial license plate number “711.” As

Officer Wade later passed the Texas Department of Public Safety office, Driver’s License Division,

at 4719 South Congress, he observed a gold-colored vehicle matching the BOLO description parked

in the front parking lot. This location was about a mile and a half from the Battle Bend address

given in the BOLO, and it was two hours or so after the alleged robbery. Officer Wade turned his

vehicle around and drove past the gold vehicle again. He saw a young Hispanic male in the driver’s

seat with the window down. He could not tell if anyone else was in the gold vehicle because of its

tinted windows and the heavy rain. The dispatcher was called and back-up units were requested.

                  Officer Wade turned his vehicle around again and drove back, approaching the gold

vehicle in the parking lot, but stopping about seventy-five feet away to await the arrival of the



                                                   4
additional police units. He then observed that the car was a Chevrolet HHR, not a P.T. Cruiser, with

a partial license plate number “731” instead of “711.” Officer Wade soon observed the Hispanic

male get out of the gold vehicle with a red gas can and move to the rear of the vehicle. When the

Hispanic male made eye contact with Officer Wade, he dropped the gas can and started back to the

driver’s door of the gold vehicle.

               Officer Wade became concerned because if the Hispanic male got to the car, an

automobile chase would ensue on slick rainy streets, endangering the suspects, the police, and the

public. He pulled his police unit within fifteen feet of the gold vehicle, drew his pistol, got out of

the police unit, and ordered the Hispanic male to get on the ground. The suspect did not want to

comply but eventually did. Before securing the suspect, Officer Wade heard a noise in the gold

vehicle and he saw the car rock or move. Through a back window, the officer saw a silhouette inside

the car. He yelled to that individual to keep his hands up and “to stay right there.” The suspect

inside the car was slow to respond and continued to move. Officer Wade could not hear what

the suspect inside the car was saying. Officer Wade knew a handgun had been used and was

possibly in the possession of one of the suspects. At this time, the Hispanic male, Serrato, on

the ground yelled toward the car, “waste him, dog, waste him” and “shoot him and get out of here.”

Officer Wade was still the only officer on the scene. No shots were fired. Officer Jesse Barunda

arrived and took steps to secure Serrato on the ground. Officer Wade was then able to get the man,

later identified as appellant, out of the gold vehicle. No weapon was found on appellant’s person.

Officer Wade then saw a handgun on the floorboard of the car on the driver’s side. He left the




                                                  5
weapon there for the crime scene unit. Appellant was wearing a red bandana around his neck which

was apparently the red towel David Garcia thought he saw on appellant.

                Officer Rodrick Mayberry arrived on the scene. He described appellant as an African-

American, 6' 3" tall, and weighing about 300 pounds. Appellant had $779 on his person when

arrested. At the jail booking, some valuables were taken from appellant including what appeared

to be diamond earrings that David Garcia remembered appellant wearing at the time of the robberies.

                Lee Hernandez, a crime unit specialist, arrived on the scene of the arrests and took

custody of the handgun in the car and its magazine. There was a bullet in the chamber. She also

secured $216.35 in cash taken from Serrato. Hernandez swabbed the handgun grip and trigger for

DNA purposes. On June 27, 2006, in accordance with a search warrant, a buccal swab was taken

from appellant’s mouth.

                Cassie Carradign, a forensic scientist and DNA supervisor at the Austin Police

Department testified that appellant’s known DNA sample matched the DNA profile taken from the

pistol’s handle or grip.

                Jason Flator, a firearms expert, testified the handgun was a Smith and Wesson firearm

in working order and it was a deadly weapon. The magazine also seized was a Smith and Wesson

magazine with ten live rounds therein. Appellant called no witnesses and rested and closed with the

State at the guilt/innocence stage of the trial.


                                      LEGAL SUFFICIENCY

                In his first point of error, appellant challenges the legal sufficiency of the evidence

to sustain his convictions for aggravated robbery under the law of parties. In determining whether

                                                   6
the evidence is legally sufficient to support the judgment of conviction, we view the evidence in the

light most favorable to the judgment, asking whether any rational trier of fact could have found

beyond a reasonable doubt all the essential elements of the offense charged. See Jackson v. Virginia,

443 U.S. 307, 319 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005); Cardenas

v. State, 30 S.W.3d 384, 389-90 (Tex. Crim. App. 2000); Adelman v. State, 828 S.W.2d 418, 421

(Tex. Crim. App. 1992). This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences.

Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

               The evidence viewed in this light, and all reasonable inferences drawn therefrom,

are evaluated in an appellate review. See Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App.

1995). The reviewing court must consider all evidence, rightly or wrongly admitted, which the

trier of fact was permitted to consider. See Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App.

1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The standard of review is the

same for both direct and circumstantial evidence. Kitzner v. State, 994 S.W.2d 180, 189 (Tex. Crim.

App. 1999); Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992). In its review of the

legal sufficiency of the evidence, the appellate court does not realign, disregard or weigh the

evidence. Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App.—Austin 1997, no pet.). The jury

is the trier of fact, is the judge of the credibility of the witnesses and the weight to be given the

testimony, and may accept or reject all or any of a witness’s testimony. See Margraves v. State,

34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Sharpe v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.

1986). Reconciliation of evidentiary conflicts is solely a function of the trier of fact. See Matson



                                                 7
v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1993); Miranda v. State, 813 S.W.2d 724, 733-34

(Tex. App.—San Antonio 1990, pet. ref’d).

               Pertinent to both counts of the indictment, section 29.02 provides in part:


       (a) A person commits an offense if in the course of committing theft as defined in
       Chapter 31 and with intent to obtain or maintain control of the property he:

       ....

               (2) intentionally and knowingly threatens or places another in fear of
               imminent bodily injury or death.


Tex. Penal Code Ann. § 29.02(a)(2) (West 2003).

               Robbery can become aggravated robbery if the robbery is committed by use

or exhibition of a deadly weapon.2 Tex. Penal Code Ann. § 29.03(a)(2) (West 2003).

               Appellant was charged with aggravated robbery of Hildegardo Garcia in the

first count of the indictment and with aggravated robbery of David Garcia in the second count. The

indictment alleged that each count of robbery became aggravated by the use and exhibition of a

deadly weapon, to wit: a firearm.




       2
          A deadly weapon is a firearm or anything manifestly designed, made, or adapted for the
purpose of inflicting serious bodily injury or anything that, in the manner of its use or intended use,
is capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07 (a)(17)(A), (B)
(West 2006).

         A “firearm” means any device designed, made, or adapted to expel a projectile through a
barrel by using energy generated by an explosion or burning substance or any device readily
convertible to that use. Tex. Penal Code Ann. § 46.01(3) (West 2003).

                                                  8
                  The indictment on its face appeared to charge appellant as a primary actor in both

counts. There were no allegations that appellant was a party to the offenses or that the law of parties

was applicable. Such allegations in an indictment are not necessary in order for the State to proceed

in the case on the theory of parties. Marble v. State, 85 S.W.3d 287, 287 (Tex. Crim. App. 2002);

Jackson v. State, 898 S.W.2d 896, 898 (Tex. Crim. App. 1995); Pesina v. State, 949 S.W.2d

374, 377 (Tex. App.—San Antonio 1997, no pet.). The State’s theory was that appellant was guilty

as both a primary actor and a party. The trial court submitted the case to the jury only under the

law of parties.


       A person is criminally responsible as a party to an offense if the offense is committed
       by his own conduct, by the conduct of another for which he is criminally responsible,
       or by both.


Tex. Penal Code Ann. § 7.01(a) (West 2003).

                  Section 7.02 of the Penal Code provides in pertinent part:


       (a) A person is criminally responsible for the offense committed by the conduct of
       another if,

       ....

                  (2) acting with intent to promote or assist the commission of the
                  offense, he solicits, encourages, directs, aids, or attempts to aid the
                  other person to commit the offense.


Tex. Penal Code Ann. § 9.02(a)(2) (West 2003).

                  To convict a person as a party it is first necessary to prove the guilt of another

person as the primary actor beyond a reasonable doubt. Richardson v. State, 879 S.W.2d 874, 882

                                                    9
(Tex. Crim. App. 1993). When a party is not the “primary actor,” the State must prove beyond a

reasonable doubt conduct constituting the offense charged, plus an act by the defendant done with

intent to promote and assist such conduct. Beir v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985);

Christensen v. State, 240 S.W.3d 25, 31 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d); Pesina,

949 S.W.2d at 382. In order to establish liability as a party in addition to the illegal conduct by

the primary actor, it must be shown that the accused harbored the specific intent to promote or assist

the commission of the offense, i.e., aggravated robbery. Christensen, 240 S.W.3d at 31; Pesina,

949 S.W.2d at 382.

               The evidence must show that the parties were acting together to accomplish their

common purpose. Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977). The agreement

to accomplish a common purpose, if any, must be made before or contemporaneous with the criminal

event, but in determining whether one has participated in an offense, the court may examine events,

before, during, and after the commission of the offense. Powell v. State, 194 S.W.3d 503, 507

(Tex. Crim. App. 2006); Miller v. State, 83 S.W.3d 308, 314 (Tex. App.—Austin 2002, pet. ref’d).

               While an agreement of the parties to act together in common design can seldom be

proved by direct evidence, reliance may be had on the actions of the parties showing by direct or

circumstantial evidence an understanding and common design to do a certain act. Burdine v. State,

719 S.W.2d 309, 315 (Tex. Crim. App. 1986); Pesina, 949 S.W.2d at 383. In fact, circumstantial

evidence may be sufficient alone to establish one as a party to an offense. Powell, 194 S.W.3d

at 506; Wygal, 555 S.W.2d at 469.




                                                 10
               The State must show more than mere presence to establish participation in a criminal

offense. Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1981); Pesina, 949 S.W.2d at 383.

Evidence is sufficient, however, to convict under the law of parties where the accused is physically

present at the commission of the offense and encourages its commission by words or other

agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994).

               To convict a defendant as a party to the offense of aggravated robbery involving

the use or exhibition of a deadly weapon, a firearm, the State must prove that the defendant

was criminally responsible for the primary actor’s use or exhibition of a firearm during the

commission of the offenses. See Stephens v. State, 717 S.W.2d 338, 340 (Tex. Crim. App. 1986);

Brown v. State, 212 S.W.3d 851, 860 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Wooden

v. State, 101 S.W.3d 542, 547-48 (Tex. App.—Fort Worth 2003, pet. ref’d).

               The undisputed direct and circumstantial evidence shows that Paul Serrato was the

primary actor in the commission of the aggravated robberies of Hildegardo and David Garcia by

taking money from them by the use and exhibition of a deadly weapon, a firearm, and placing them

in fear of death or serious bodily injury. Both of the Garcias identified appellant as being present

at the scene and acting together with Serrato and aiding him in the robberies.

               Intent can be inferred from the acts, words, and conduct of an accused. Dues v. State,

634 S.W.2d 304, 306 (Tex. Crim. App. 1985); Romo v. State, 593 S.W.2d 690, 693 (Tex. Crim. App.

1980). Proof of a culpable mental state generally relies upon circumstantial evidence. Dillon

v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978). Since mental culpability is of such a nature that

it generally must be inferred from circumstances under which the prohibited act occurred, the trier



                                                 11
of fact may infer intent from any facts in evidence which tend to prove existence of such intent.

Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991).

               Here, the evidence showed appellant drove Serrato to the scene of the robberies.

Appellant was present when Serrato was using and exhibiting a pistol demanding money from

the Garcias. When Serrato went to the passenger side of the Garcia truck, appellant was outside

the gold-colored car preventing any escape from the driver’s side of the Garcia truck. David Garcia

recalled appellant leaning in at the driver’s side of the truck and telling him, “yeah, you too” while

Serrato was collecting money at gunpoint. Appellant was the driver of the getaway car and followed

the Garcia truck for awhile to prevent them from immediately calling the police. Several hours later

and a mile and a half from the scene of the robberies, appellant was found in the gold-colored car

with Serrato nearby. DNA evidence tied appellant to the black and silver Smith and Wesson pistol

also found in the car and identified by the Garcias as appearing to be the weapon used by Serrato.

Nearly eight hundred dollars was found on appellant’s person.

               Viewing all the evidence, direct and circumstantial, in the light most favorable to the

jury verdict, we conclude that any reasonable trier of fact could have found beyond a reasonable

doubt all of the essential elements of each count of the indictment, including the aggravating element

of each offense under the law of parties. We reject appellant’s claim that the evidence was legally

insufficient to convict him as a party to the two aggravated robberies. The first point of error is

overruled. See Escobar v. State, 28 S.W.3d 767, 774 (Tex. App.—Corpus Christi 2000, pet. ref’d);

Johnson v. State, 6 S.W.3d 709, 711 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d); Brewer




                                                 12
v. State, 852 S.W.2d 643, 647 (Tex. App.—Dallas 1993, pet. ref’d); Webber v. State, 757 S.W.2d

51, 53-55 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d).3


                                         JURY CHARGE

               In his second point of error, appellant urges that the “trial court erred in failing to

properly instruct the jury regarding the State’s requirement to prove appellant criminally responsible

for the aggravating element and was harmful to appellant.”

               The trial court submitted both counts of aggravated robbery to the jury only on

the theory of appellant’s guilt as a party. Appellant does not complain of either the abstract or

definitional portions of the jury charge or the application paragraphs submitting the law of parties.

Appellant calls our attention solely to a subsequent portion of the charge to which he offered a

special requested charge or amendment. See Tex. Code Crim. Proc. Ann. art. 36.15 (West 2006).

In section “12” of the charge, the trial court generally instructed the jury on the presumption of

innocence and that the burden of proof was on the State beyond a reasonable doubt.

               In the second paragraph of this section, the trial court stated:


       The prosecution has the burden of proving the defendant guilty and it must do so by
       proving each and every element of the offense charged beyond a reasonable doubt,
       and if it fails to do so, you must acquit the defendant.




       3
          Appellant argues that there was a conflict between Hildegardo Garcia’s testimony and
that of David Garcia as to appellant’s activities at the scene of the crimes. Contrary to appellant’s
argument, appellant would be guilty beyond a reasonable doubt as a party to the offenses under either
version of the facts. Moreover, the jury could have reconciled any conflict against appellant.

                                                 13
                Appellant requested that the trial court amend the above-quoted paragraph

by inserting:


       In order to convict a defendant as a party to an aggravating offense, the State must
       prove that the defendant was criminally responsible, as that term is herein defined for
       the aggravating element.


                The trial court overruled the requested charge and stated that such an addition would

be confusing to the jury and that the matter was adequately covered by other portions of the charge.

It appears that the requested charge was for the purpose of singling out the aggravating element

of each offense, on which appellant concluded the State’s evidence was the weakest under the law

of parties. Appellant apparently did not consider the trial court’s instruction as to each and every

element sufficient.

                Appellant cites no authority for his contention, but does cite a line of jury charge error

cases beginning with Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).

When a defendant has properly preserved a jury charge issue for review, the appellate court

must first determine under the Almanza harm analysis if error actually occurred. See Posey v. State,

966 S.W.2d 57, 60 (Tex. Crim. App. 1998). An examination of the entire record here does not show

that any provision of article 36.194 was disregarded. There is no error for the purpose of the Almanza

harm analysis. Posey, 966 S.W.2d at 60.

                The requested charge could have, as the trial court concluded, caused the jury

confusion, and could have resulted in the trial court expressing an opinion on the weight of


       4
           Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006).

                                                   14
the evidence as prohibited by article 36.145 by singling out one element. The matter involved

was adequately covered by the parts of the jury charge to which appellant had no objection. The

trial court did not err in refusing the requested charge. The second point of error is overruled.


                             PRETRIAL MOTION TO SUPPRESS

                In his third point of error, appellant contends that the “trial court erred in failing

to grant appellant’s motion to suppress the physical evidence.” Before discussing the trial court’s

ruling, we examine the law applicable to pretrial suppression hearings.


                                   THE BURDEN OF PROOF

                When a defendant seeks to suppress evidence by a pretrial motion on the basis of

the Fourth Amendment to the United States Constitution, he, as the movant, bears the burden

of producing evidence that defeats the presumption of proper police conduct. Amador v. State,

221 S.W.3d 666, 672 (Tex. Crim. App. 2007); Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App.

1986). A defendant meets this initial burden of proof by establishing that a search or seizure

occurred without a warrant. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005); Bishop

v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002); Russell, 717 S.W.2d at 9. At this point,

the burden shifts to the State to prove that the search or seizure was reasonable without a warrant

under the totality of the circumstances. Russell, 717 S.W.2d at 9. If, however, the State introduces

or produces evidence of an executed search warrant based on probable cause reflected in its

underlying affidavit, the burden shifts back to the defendant to show the invalidity of the search


       5
           Tex. Code Crim. Proc. Ann. art. 36.14 (West 2006).

                                                 15
warrant. Ford, 158 S.W.3d at 492; Russell, 717 S.W.2d at 9; see also Davidson v. State, 249 S.W.3d

709, 717-18 (Tex. App.—Austin 2008, pet. ref’d).


                                   STANDARD OF REVIEW

               We generally review a trial court’s ruling on a pretrial suppression motion for an

abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006); Swain v. State,

181 S.W.3d 359, 365 (Tex. Crim. App. 2005); Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim.

App. 2002). The trial court’s ruling should be upheld so long as it is within the zone of reasonable

disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). This is the

rather common standard of review regarding the admissibility of evidence.

               When we review a trial court’s ruling on a motion to suppress, we give great

deference to the trial court’s determination of historical facts supported by the record, while

we review the application of the law to the facts de novo. Torres v. State, 182 S.W.3d 899, 902

(Tex. Crim. App. 2005); Dyer v State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003); Maxwell

v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855-56

(Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 327; (Tex. Crim. App. 2000); Guzman

v. State, 955 S.W.2d 85, 85-89 (Tex. Crim. App. 1997).6

               We must uphold the trial court’s ruling if it is supported by the record and correct

under any theory of law applicable to the case, even if the trial court gave the wrong reason

for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State,


       6
         For a fuller discussion of the standard of review, see Amador v. State, 214 S.W.3d 666, 673
(Tex. Crim. App. 2007), and State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006).

                                                16
123 S.W.3d 401, 404 (Tex. Crim. App. 2003); State v. Steelman, 93 S.W.3d 102, 103 (Tex. Crim.

App. 2002); Ross, 32 S.W.3d at 856.


                                     THE TRIER OF FACT

                The trial court is the trier of fact at a pretrial hearing on a motion to suppress

evidence. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); Allridge v. State,

850 S.W.2d 471, 492 (Tex. Crim. App. 1997). The trial court is free to believe or disbelieve all or

any part of a witness’s testimony, even if the testimony is uncontroverted. Ross, 32 S.W.3d at 855.

In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State,

800 S.W.2d 539, 543 (Tex. Crim. App. 1990).


                                A SPECIALIZED OBJECTION

                A pretrial motion to suppress evidence under article 28.01(6)7 is nothing more than

a specialized objection to the admissibility of evidence. Galitz v. State, 617 S.W.2d 949, 952 n.10

(Tex. Crim. App. 1981). Therefore, it must meet the specificity requirements of an objection. See

Tex. R. App. P. 33.1(a)(1)(A); Krause v. State, 243 S.W.3d 95, 102 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d); Mayfield v. State, 800 S.W.2d 932, 935 (Tex. App.—San Antonio 1990, no pet.).

Here, by his “supplemental” motion to suppress, appellant, in order to avoid procedural default,

specified the gun, the DNA swabs, and the test results as the items he wanted to suppress. See Swain

v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005); Martinez v. State, 17 S.W.3d 677, 682-83

(Tex. Crim. App. 2000).


       7
           Tex. Code Crim. Proc. Ann. art. 28.01(6) (West 2006).

                                                 17
               On October 17, 2006, immediately prior to the trial, the trial court conducted a

hearing on appellant’s amended motion to suppress evidence. After a brief colloquy about the

burden of moving forward with the evidence, appellant’s counsel called two police officers as

witnesses, Keith Douglas Wade and Luis Delgado.8 These were the only witnesses to testify at the

suppression hearing. Officer Delgado was not present when appellant was detained and little of his

testimony was truly relevant to the suppression issues.9

               Officer Wade’s suppression testimony was virtually the same as at trial previously

cited in the sufficiency of evidence discussion. We need not repeat that testimony in great detail,

but will note that the trial court’s ruling is based on the testimony at the suppression hearing as the

issues involved were not consensually relitigated at trial. See Rachel v. State, 917 S.W.2d 799, 809

(Tex. Crim. App. 1995).

               Officer Wade recalled that the BOLO had reference to two different robberies, one

in the Henry section and another in the Frank section of the City of Austin; the latter being the one

on Battle Bend Road. He understood the suspects were armed and in a gold Chevrolet HHR that



       8
           The trial court suggested that “this” is “a warrantless situation,” but there was no
stipulation of evidence to that effect. The prosecutor also insisted that appellant had the
burden of proof to establish his standing to complain of the items seized. Without much argument,
appellant called the police officers as witnesses. The State now concedes that under the
circumstances, appellant had standing to contest his detention and the subsequent search. See
Brendlin v. California, 551 U.S. 249 (2007). No claim of misplacement of the burden of proof has
been advanced.
       9
          Officer Delgado interviewed the Garcias shortly after they had been robbed. He made a
report detailing a description of the suspects. His report was used in part as the basis of the BOLO
heard by Officer Wade. Appellant complains that Delgado’s description of the suspects was in
greater detail than Wade’s recall of the BOLO. Officer Delgado, of course, did not issue the BOLO
which was also based on a reported robbery other than the ones alleged here.

                                                  18
resembled a P.T. Cruiser. He was given a description of both suspects in the BOLO. Several hours

after the robbery on Battle Bend Road and a mile and a half from that location, Officer Wade

encountered the two suspects in the parking lot of the DPS office on South Congress Avenue, which

was closed that Saturday. This encounter discussed earlier need not be repeated here.

               At the conclusion of the suppression hearing, the trial court overruled the

supplemental motion to suppress physical evidence. It made no written findings and conclusions

of law. None were requested.10 The trial court did dictate into the record a running recitation of the

largely undisputed facts developed, and it held that the detentions of appellant and the Hispanic male

were “reasonable.” The trial court further found that appellant was legally arrested, and that at the

time of detention, it was learned that both suspects had outstanding arrest warrants, and that the

search and seizure “was not unreasonable.”

               The basis of appellant’s argument at the suppression hearing was that his detention

was unlawful under the totality of the circumstances, that his subsequent arrest, and the search and

seizure were all invalid under the Fourth Amendment.

               The United States Supreme Court has recognized three distinct types of police-citizen

interactions: (1) arrests, which must be supported by probable cause, see Brown v. Illinois, 422 U.S.

590, 601 (1975); (2) brief investigatory stops, which must be supported by reasonable suspicion, see

Terry v. Ohio, 392 U.S.1, 25-26 (1968); and (3) brief encounters between police and citizens which




       10
          “When requested by the losing party, the trial court is required to file findings of fact
and conclusions of law regarding its ruling on the motion to suppress evidence. See State v. Oages,
210 S.W.3d 643, 644 (Tex. Crim. App. 2006); State v. Cullen, 195 S.W.3d 696, 698-99 (Tex. Crim.
App. 2006). Both of these cases involved state appeals.

                                                 19
require no objective justification. See Florida v. Bostick, 501 U.S. 429, 434 (1991). Police may

approach and question an individual in a public place without implicating the Fourth Amendment

to the United States Constitution. Florida v. Royer, 460 U.S. 491, 497-98 (1983).

               Here, the crux of appellant’s complaint is that Officer Wade had no reasonable

suspicion to justify the Terry or investigative detention stop of the Hispanic male or appellant. An

officer conducts a lawful temporary detention when he has reasonable suspicion to believe that

an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005);

Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). Reasonable suspicion exists if

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 actually is, has been, or soon

will be engaged in criminal activity. Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008);

Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007); Garcia v. State, 43 S.W.3d 527, 530

(Tex. Crim. App. 2001). These facts must amount to more than a mere hunch or suspicion. Brother

v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2002).

               The foregoing is an objective standard that disregards any subjective intent of

the officer making the detention or stop and looks solely to whether an objective basis for

the detention or stop exists. Ford, 158 S.W.3d at 492; Garcia, 43 S.W.3d at 530. A reasonable-

suspicion determination is based on the totality of the circumstances. Neal, 256 S.W.3d at 280;

Ford, 158 S.W.3d at 492-93. In conducting a totality of the circumstances determination, we apply

the standard of review applicable to motions to suppress evidence discussed above. See Garcia,

43 S.W.3d at 530. In short, we give almost total deference to the trial court’s determination of the



                                                20
actual, facts but we review de novo whether those facts are sufficient legally to give rise to

reasonable suspicion. Id. Will a de novo review of the circumstances here support the trial court’s

conclusion that reasonable suspicion did in fact exist? The answer is yes.

               Here again, we need not repeat the evidence concerning Officer Wade’s encounter

with appellant and Serrato in the parking lot of the DPS Office. Based on the facts found by the

trial court and supported by the record and our review of law de novo it was reasonable under the

totality of the circumstances for Officer Wade to suspect that Serrato (the Hispanic male) and

appellant had engaged in, were engaging in, or would soon be engaged in criminal activity. We find

that the Terry detention of appellant, his subsequent warrantless arrest based on probable cause and

an outstanding warrant, and the search of his person and vehicle incident to his arrest to be proper.

The trial court did not abuse its discretion in overruling the motion to suppress physical evidence.

The third point of error is overruled.


                                            HEARSAY

               In the fourth point of error, appellant argues that the trial court erred in allowing,

over objection, the admission of a co-conspirator’s hearsay statement, “waste him, dog, waste him

. . . shoot him and get out of here.” Appellant contends that the hearsay statement was admitted by

the trial court under rule 801(e)(2)(E) of the Texas Rules of Evidence without a showing that the

statement was made in the course and furtherance of the conspiracy. The rule, concerning statements

that are not hearsay, provides: “The statement is offered against a party and is a statement by a co-

conspirator during the course and in the furtherance of the conspiracy.” Tex. R. Evid. 801(e)(2)(E).




                                                 21
Appellant urges that the termination of a conspiracy renders statements by a co-conspirator

inadmissable. See Deeb v. State, 815 S.W.2d 692 (Tex. Crim. App. 1991).

               We review the trial court’s decision to admit or exclude evidence under an abuse

of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002); Burden

v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001); Montgomery, 810 S.W.2d at 379-80.

               The Texas Rules of Evidence prohibit the admission of hearsay evidence except as

provided by statute or other rule prescribed pursuant to statutory authority. See Tex. R. Evid. 802.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.” Tex. R. Evid. 801(d). Thus,

a statement not offered to prove the truth of the matter asserted is not hearsay. Guidry v. State,

9 S.W.3d 133, 152 (Tex. Crim. App. 1999); Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App.

1995); Stafford v. State, 248 S.W.3d 406, 407 (Tex. App.—Beaumont 2008, pet. ref’d). An out-of-

court statement which is not offered to prove the truth of the matter asserted therein, but is offered

for some other reason, is not hearsay. See Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App.

2000); Guidry, 9 S.W.3d at 152; Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1992)

overruled on other grounds, Maxwell v. State, 48 S.W.3d 196, 200 (Tex. Crim. App. 2001); Stafford,

248 S.W.3d at 407; Lopez v. State, 200 S.W.3d 246, 254 (Tex. App.—Houston [14th Dist.] 2006,

pet. ref’d); Lee v. State, 51 S.W.3d 365, 370 (Tex. App.—Austin 2001, no pet.). Expressed another

way, an extrajudicial statement that is offered for the purpose of what was said rather than the truth

of matter asserted or the truth of what was said is not hearsay. See Dinkins, 894 S.W.2d at 347;




                                                 22
McKay v. State, 707 S.W.2d 23, 33 (Tex. Crim. App. 1985); Corimer v. State, 955 S.W.2d 161, 162

(Tex. App.—Austin 1997, no pet.).

               In 2A Steven Goode, Olin Guy Wellborn, III and Michael Sharlot, Texas Practice:

Courtroom Handbook on Texas Evidence, rule 801(a)-(d) at 541, the commentators stated:


               An out-of-court statement is not inadmissable as hearsay if it has
               relevancy apart from the truth of the matter that it asserts or implies.
               If the making of the statement is itself relevant evidence that the
               statement was made is not barred by the hearsay rule.


               In Yancy v. State, 199 S.W.3d 293, 307 (Tex. App.—Corpus Christi 2006, pet. ref’d),

it was held that the trial court could have reasonably concluded that the documents were not hearsay

because they were not offered for the truth of the matter asserted but to show the circumstances

surrounding the investigation and leading to Yancy’s arrest. See also Parker v. State, 192 S.W.3d

801, 807 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (“[W]ithout the testimony of the

information Officer Walker had received the jury would have been deprived of an understanding

of the events leading up to appellant’s arrest.”); Davis v. State, 169 S.W.3d 673, 675-76

(Tex. App.—Fort Worth 2005, no pet.) (testimony of police detective about anonymous tips to show

why investigation focused on defendant); Cano v. State, 3 S.W.3d 99, 110 (Tex. App.—Corpus

Christi 1999, pet. ref’d) (officer’s testimony that he had received information about drugs being

sold at residence of defendants was not offered for truth of matter asserted, but to assist jury’s

understanding of events by providing context for officer’s subsequent action); Marsh v. State,




                                                 23
800 S.W.2d 607, 609 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d) (deputy’s testimony was

admitted, not for truth of matter asserted, but rather to indicate circumstances surrounding another

officer’s arrest of suspects).11

                In the instant case, Officer Wade’s testimony about the Hispanic male’s statement

“waste him, dog, waste him” and “shoot him, and get out of here,“ was not hearsay under the

circumstances described. Officer Wade was attempting to arrest or detain the Hispanic male while

appellant was in a nearby car. The statement was not offered for the truth of the matter asserted

but rather to provide the jury the context in which appellant was eventually arrested and not to

deprive the jury of an understanding of those events. The evidence was properly admitted on this

basis even though the trial court did not use this basis for its overruling of the hearsay objection

to Officer Wade’s testimony. A trial court’s ruling on the admission of evidence, if supported by

the record and correct under any theory of the law applicable to the case will be upheld, even if the

trial court gave a different or wrong reason for its ruling. See Stevens, 235 S.W.3d at 740; Steelman,

93 S.W.3d at 107; Spann v. State, 448 S.W.2d 128, 130 (Tex. Crim. App. 1969).

                On appeal, the State for the first time urges that, in addition to rule 801(e)(2)(E),

the trial court was correct in overruling the hearsay objection on the basis of rule 803(2) of

the Texas Rules of Evidence. An excited utterance is a “statement relating to a startling event or

condition made while the declarant was under the stress or excitement caused by the event or




        11
          For additional cases in this area of admission of evidence, see In re Bexar County
Criminal Dist. Attorney’s Office, 224 S.W.3d 182, 188-89 (Tex. 2007); Scott v. State, 222 S.W.3d
820, 831 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

                                                 24
condition.” Tex. R. Crim. Evid. 803(2). The availability of the declarant as a witness is immaterial

under the rule.

                  The State relies on Wilkerson v. State, 933 S.W.2d 276, 278-79 (Tex. App.—Houston

[1st Dist.] 1996, pet. ref’d). There, an undercover officer and an informer went to appellant’s house

to buy drugs. Appellant would not sell the officer a $20 rock of cocaine because he did not know

the officer. Patricia Lusk, who was present, announced that she was appellant’s partner and took

the $20. Appellant then handed the cocaine to the informer. A signal was given and the arrest team

came into the house. Appellant and Lusk ran to the back of the house with Lusk yelling, “Flush

the dope.”

                  The Wilkerson court held that the undercover officer’s testimony as to Lusk’s “Flush

the dope” statement was not hearsay under rule 803(2) because the circumstances indicated that

Lusk was under the stress and excitement caused by the arresting team’s approach at the time of

her contemporaneous statement. Thus, the trial court there did not err in overruling the hearsay

objection. Id. at 279.

                  In the instant case, the Hispanic male (Serrato) retreated to the open driver’s door

of the car after he spotted Officer Wade nearby. He was then ordered by Officer Wade at gunpoint

to get on the wet ground with his face down. Upon complying, Serrato yelled out the complained-of

statements. The startling event was his sudden confrontation with the police officer and his

detention at gunpoint. Serrato was clearly under the stress of excitement caused by the startling

circumstances, and his statements were contemporaneous with the event. The contents of such

statements along with other circumstances as declarant’s appearance, behavior, and condition



                                                   25
may also be relied upon to establish the occurrence of an exciting event. United States v. Moore,

791 F.2d 566, 570-71 (7th Cir. 1986); Ross v. State, 154 S.W.3d 804, 809 (Tex. App.—Houston

[14th Dist.] 2004, pet. ref’d). The trial court’s ruling in the instant case is also supported by the

fact that Serrato’s statements were excited utterances under rule 803(2). The fourth point of error

is overruled.

                As noted, the trial court admitted the complained-of statements under the basis

of rule 801(e)(2)(E) as a co-conspirator’s statement. For the reasons stated above, we need not

determine if that ruling is correct. There is ample legal basis to support the trial court’s ruling. See

Wilkerson, 933 S.W.2d at 278; Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990);

Spann, 448 S.W.2d at 130. Our disposition of this point of error does not question the correctness

of the trial court’s ruling based on rule 801(e)(2)(E). The fourth point of error is overruled.

                The judgment is affirmed.




                                               John F. Onion, Jr., Justice

Before Justices Patterson, Pemberton and Onion*

Affirmed

Filed: August 20, 2009

Do Not Publish


* Before John F. Onion, Jr., Presiding Judge (retired), Texas Court of Criminal Appeals, sitting
by assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 2005).

                                                  26
