Opinion
No. 05-10-00922-CR
11-08-2012
MELINDA ALFORD, Appellant v. THE STATE OF TEXAS, Appellee
REVERSE and REMAND;
On Appeal from the County Court at Law No. 5
Collin County, Texas
Trial Court Cause No. 005-82590-09
OPINION ON REHEARING
Before Justices Bridges, Lang-Miers, and Murphy
Opinion By Justice Bridges
The Court has before it the State's motion for rehearing. On the Court's own motion, we withdraw our opinion and vacate our judgment of December 6, 2011. The following is now the opinion of the Court.
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 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, appellant, got out of the vehicle and changed places with the driver.
When Callan reached appellant's vehicle, he “pull[ed] up to the passenger window, which was down, [and] noticed the gear shift was in drive and the driver looked -- made contact with me and let off the brakes.” Appellant “started to drive off.” Callan asked appellant if she would “mind putting the car in park” and said he wanted to talk to her for a second. Callan asked, “What's going on? Is everybody okay?” Once appellant stopped the car, Callan 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 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.
In determining whether a trial court's decision is supported by the record, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). However this general rule is inapplicable where, as in this case, the suppression issue has been consensually re-litigated by the parties during trial on the merits. Id. Where the State raises the issue at trial either without objection or with subsequent participation in the inquiry by the defense, the defendant has made an election to re-open the evidence, and the trial testimony is appropriate in our review. Id.
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. Now, on appeal, the State characterizes the interaction between Callan and appellant as an “encounter” rather than a “stop” and argues such an encounter did not require the justification of either reasonable suspicion or probable cause. See Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). 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). A law enforcement officer is permitted to approach a citizen without reasonable suspicion or probable cause in order to ask questions and even to request a consent to search. Id. In this example, the citizen is free to ignore the officer and walk away. Id. While a law enforcement officer is free to approach a citizen and ask questions, the citizen is also free to not answer the questions. Id. These encounters are consensual so long as a reasonable person would feel free to disregard the police and go about his business. Id. In this situation, the State is not required to prove the law enforcement officer had either a reasonable suspicion or probable cause to approach the citizen and ask questions. Id.
But the State did not make this argument in the trial court below. See Tex. R. App. P. 33.1(a) (failure to present argument to trial court in form of timely request, objection, or motion waives complaint on appeal). The State argued, instead, that the stop was justified as a community caretaking function both at the time of the hearing on the motion to suppress and at trial. At the hearing on the motion to suppress, the prosecutor argued Callan did not “go to this vehicle pursuing a DWI investigation, but instead just to check on the welfare of the individuals and thus the stop was a lawful stop.” Because the State limited its argument at the hearing on the motion to suppress and at trial to the issue of whether the community caretaking function justified the stop in this case, the State has waived its complaint that the “stop” was actually an “encounter.” See Tex. R. App. P. 33.1(a); Tex. v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (“Ordinary notions of procedural default should apply equally to the defendant and the State.”).
Here, at the hearing on the motion to suppress, Callan testified that, when he reached appellant's vehicle, he saw through the passenger window that the gear shift was in drive and “made contact” with appellant, who “started to drive off.” Appellant “let off the brakes” with the car in drive, and Callan asked appellant if she would “mind putting the car in park.” At trial, Callan testified appellant's car moved “five to six feet total” and Callan said, “hey, is everybody okay? Wait. Stop. Put it in park I want to talk to you for a minute.” We conclude Callan created a situation in which a reasonable person would not have felt free to disregard the police and go about his business. See id. Further, because Callan stopped appellant's automobile, appellant was seized within the meaning of the Fourth Amendment. See Corbin, 85 S.W.3d at 276 .
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.
DAVID L. BRIDGES
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100922F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MELINDA ALFORD, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00922-CR
Appeal from the County Court at Law No. 5 of Collin County, Texas. (Tr.Ct.No. 005- 82590-09).
Opinion delivered by Justice Bridges, Justices Lang-Miers and Murphy participating.
We VACATE our judgment of December 6, 2011. This is now the judgment of the Court.
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings.
Judgment entered November 8, 2012.
DAVID L. BRIDGES
JUSTICE