Opinion
No. 05-10-00922-CR
Opinion issued August 11, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause No. 005-82590-09.
Before Justices BRIDGES, LANG-MIERS, and MURPHY.
OPINION
Melinda Alford appeals her driving while intoxicated (DWI) conviction. The trial court denied appellant's motion to suppress, the case proceeded to trial, and a jury found appellant guilty. The trial court sentenced her to a $700 fine and 120 days' confinement, suspended the sentence, and placed appellant on community supervision for twelve months. In two issues, appellant argues the trial court erred in denying her motion to suppress and failing to provide a jury instruction. We reverse the trial court's judgment and remand for further proceedings consistent with this opinion. On March 21, 2009, Wylie police officer Jeff Callan was on bicycle patrol with another officer at approximately 12:45 a.m. when they pulled into a church parking lot to rest. About 100 yards away, Callan saw a vehicle pull up and stop at a dead end street through a very wide alleyway behind a Jack in the Box restaurant, which was open at the time. Callan saw the passenger door open, and the passenger "kind of turned sideways half of their body was out and was leaning over saying something to the driver." Callan observed the vehicle for "between five to seven minutes." Callan could hear the passenger and the driver talking but could not hear what they were saying, and "it appeared that they were talking very loudly for us to hear it that far away." Callan said he was going to "ride over there and see what's going on." As the officers approached, the passenger got out of the vehicle and changed places with the driver. When Callan reached the vehicle, he saw through the passenger window that the gear shift was in drive and made eye contact with the driver, appellant, who started to drive away. Callan asked appellant if she would "mind putting it in park" and said he wanted to talk to her for a second. Callan asked if everybody was okay and said he noticed they were sitting there for a while. Appellant said they "were just changing positions" and had come from a place where they had watched a friend play in a band. At that point, Callan noticed a strong odor of an alcoholic beverage coming from inside the vehicle and asked appellant how much she had to drink. Appellant said she had "four big beers." Callan then began a DWI investigation and administered field sobriety tests, which indicated to Callan that appellant was intoxicated. Callan arrested appellant for DWI. Following a hearing on appellant's motion to suppress, the trial court denied her motion. A jury found appellant guilty of DWI, and this appeal followed. In her first issue, appellant argues the trial court erred in denying her motion to suppress. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We do not engage in our own factual review, rather the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given their testimony. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total deference to the trial court's determination of historical facts, particularly when the trial court's findings are based on an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor. Id. We conduct a de novo review of evidence when the resolution of mixed questions of law and fact do not turn on an evaluation of credibility and demeanor. St. George, 237 S.W.3d at 725. We review the evidence in the light most favorable to the trial court's ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). When, as here, the trial court makes explicit fact findings, we determine whether the evidence, viewed in the light most favorable to the ruling, supports those fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We will uphold the ruling if it is supported by the record and correct under some theory of law applicable to the case. St. George, 237 S.W.3d at 725. At the hearing on the motion to suppress, the parties stipulated that the underlying case involved a warrantless arrest. The State argued that Callan was justified in stopping appellant under the community caretaking function. Not all encounters with the police implicate the Fourth Amendment's protection against unreasonable seizures. Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002). So long as a reasonable person would feel free to disregard the officer and go about his business, a police officer may approach and ask an individual questions, including whether that individual requires assistance, without implicating the Fourth Amendment. Id. Here, however, because Callan stopped appellant's automobile, appellant was seized within the meaning of the Fourth Amendment. See id. A seizure under the Fourth Amendment must be objectively reasonable in light of the particular circumstances of the case. Terry v. Ohio, 392 U.S. 1, 21-22 (1968); Corbin, 85 S.W.3d at 276. Even without reasonable suspicion or probable cause that an offense has been committed, a police officer may reasonably seize an individual through the exercise of his community caretaking function. Corbin, 85 S.W.3d at 276; Wright v. State, 7 S.W.3d 148, 151-52 (Tex. Crim. App. 1999). Because a police officer's duties involve activities other than gathering evidence, enforcing the law, or investigating crime, the Supreme Court has characterized a police officer's job as encompassing a community caretaking function. Cady v. Dombrowski, 413 U.S. 433, 441 (1973); Corbin, 85 S.W.3d at 276. As part of an officer's duty to "serve and protect," an officer may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help. Wright, 7 S.W.3d at 151. The community caretaking function, however, is totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Cady, 413 U.S. at 441; Corbin, 85 S.W.3d at 276-77. As a result, a police officer may not properly invoke his community caretaking function if he is primarily motivated by a non-community caretaking purpose. Corbin, 85 S.W.3d at 277. Here, the record reflects that Callen was concerned that "there was a disturbance going on or possibly a sick person in the vehicle." The trial court, as the exclusive judge of credibility and finder of fact, could have concluded that Callan was primarily motivated by community caretaking concerns. See Corbin, 85 S.W.3d at 277. Once the trial court determines that an officer is primarily motivated by his community caretaking function, it must then determine whether the officer's belief that the defendant needs help is reasonable. Corbin, 85 S.W.3d at 277; Wright, 7 S.W.3d at 151-52. In evaluating whether an officer reasonably believes that a person needs help, courts may look to a list of four non-exclusive factors: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others. Corbin, 85 S.W.3d at 277; Wright, 7 S.W.3d at 152. Because the purpose of the community caretaking exception is to allow an officer to "seize" and assist an individual whom he reasonably believes is in need of help, the first factor is entitled to the greatest weight. Corbin, 85 S.W.3d at 277. The greater the nature and level of distress exhibited, the more likely the police involvement will be a reasonable exercise of the community caretaking function. Id. This is not to say that the weight of the first factor alone will always be dispositive. Id. In fact, the remaining three factors help to give more definition to the first factor. Id. A particular level of exhibited distress may be seen as more or less serious depending on the presence or absence of the remaining three factors. Id. Here, the first factor, the nature and level of the distress exhibited, is almost non-existent. Appellant "kind of turned sideways half of their body was out and was leaning over saying something to the driver," according to Callan. Callan "didn't know" if there was "a disturbance going on or possibly a sick person in the vehicle." Callan heard appellant and her sister talking, but he did not testify he heard a dispute or a call for help or any other indication of distress. Appellant got out of the car, walked around it, and got in the driver's seat, but Callan did not testify appellant or her sister exhibited any distress as they changed positions in the car. This factor weighs against the stop. Concerning the second factor, the location of appellant was on a dead-end street where "you don't see a lot of traffic" outside an open Jack in the Box restaurant. In fact, the location was being patrolled by Callan and his fellow officer. This factor weighs against the stop. The third factor also weighs against the stop. Appellant was with her sister and had access to an open restaurant if she had needed assistance. The fourth factor, the extent to which appellant presented a danger to herself or others if not assisted, weighs against the stop. Appellant merely sat in a car talking and walked around the car and took the driver's seat. There is no evidence that appellant exhibited any behavior that would show her to be a danger to herself or others in getting out of her car and walking around it. Applying the Wright factors, we conclude Callan's exercise of his community caretaking function was not reasonable. See Corbin, 85 S.W.3d at 278; Wright, 7 S.W.3d at 151-52. Accordingly, appellant's interest in being free from arbitrary government interference outweighed Callan's exercise of his community caretaking function. See Corbin, 85 S.W.3d at 278. Under these circumstances, the trial court erred in denying appellant's motion to suppress on the basis Callan was acting within his community caretaking function. See St. George, 237 S.W.3d at 725. Because there was constitutional error, we must reverse appellant's conviction unless we are satisfied beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a). If the trial court had granted appellant's motion to suppress, all evidence of appellant's sobriety tests and their results, appellant's statements, and the breathalyzer test results would have been suppressed. Without this evidence, there would have been no evidence to prove appellant committed the offense of DWI. Under these circumstances, we conclude the erroneous denial of appellant's motion to suppress contributed to appellant's conviction. See Tex. R. App. P. 44.2(a). We sustain appellant's first issue. Because of our disposition of appellant's first issue, we need not address appellant's second issue. We reverse the trial court's judgment and remand for further proceedings consistent with this opinion.