PD-1480-15 PD-1480-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/13/2015 4:34:14 PM Accepted 11/16/2015 3:08:38 PM IN THE COURT OF CRIMINAL APPEALS ABEL ACOSTA CLERK OF TEXAS
CAMERON BYRAM, § APPELLANT § § V. § NO. PD-_____-15 § THE STATE OF TEXAS, § APPELLEE §
STATE’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION OF THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS IN CAUSE NUMBER 02-14-00343-CR REVERSING THE CONVICTION IN CAUSE NUMBER 1332976 IN THE COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY, TEXAS; THE HONORABLE SHERRY HILL, JUDGE PRESIDING.
§§§ STATE'S PETITION FOR DISCRETIONARY REVIEW §§§
SHAREN WILSON Criminal District Attorney Tarrant County, Texas
DEBRA WINDSOR Chief, Post-Conviction
STEVEN W. CONDER, Assistant Criminal District Attorney State Bar No. 04656510 November 16, 2015 401 W. Belknap Fort Worth, Texas 76196-0201 (817) 884-1687 FAX (817) 884-1672 CCAAppellateAlerts@Tarrantcountytx.gov IDENTITY OF JUDGES, PARTIES AND COUNSELS
Trial Court Judge: Hon. Sherry Hill, former Judge, County Criminal Court No. 1 of Tarrant County, Texas
Parties to the Judgment: Appellant, Cameron Byram, and the State of Texas
Appellant’s counsels at trial: Hon. Mitchell Slate Miers 700 NE Loop 820, Suite 216 Hurst, Texas 76053
Hon. Mimi Coffey 4700 Airport Freeway Fort Worth, Texas 76117
Hon. Richard A. Henderson 100 Throckmorton Street, Suite 540 Fort Worth, Texas 76102
Counsels for the State at trial: Hon. Joe Shannon Jr., former Criminal District Attorney, Tarrant County, Texas Hon. Jacob R. Lilly, former Assistant Criminal District Attorney, Tarrant County, Texas Hon. Patrick Almand, former Assistant Criminal District Attorney, Tarrant County, Texas Hon. Nathan Martin, Assistant Criminal District Attorney, Tarrant County, Texas, 401 W. Belknap Street, Fort Worth, Texas 76196-0201
Appellant’s counsel on direct appeal: Hon. Richard A. Henderson 100 Throckmorton Street, Suite 540 Fort Worth, Texas 76102
i Counsel for the State on direct appeal: Hon. Sharen Wilson, Criminal District Attorney, Tarrant County, Texas Hon. Steven W. Conder, Assistant Criminal District Attorney, Tarrant County, Texas 401 W. Belknap Street, Fort Worth, Texas 76196-0201
ii TABLE OF CONTENTS
IDENTITY OF JUDGES, PARTIES AND COUNSELS ............................................................. i
TABLE OF CONTENTS ................................................................................................................ iii
TABLE OF AUTHORITIES ......................................................................................................... iv
STATEMENT REGARDING ORAL ARGUMENT ................................................................. 1
STATEMENT OF THE CASE....................................................................................................... 1
STATEMENT OF PROCEDURAL HISTORY .......................................................................... 2
QUESTIONS FOR REVIEW ......................................................................................................... 3
ARGUMENT ..................................................................................................................................... 3
A. Deference to Trial Court’s Implied Factual Findings on Community Caretaking ............................................................................................ 3
B. Determination Whether Stop Qualified Under Community Caretaking Exception................................................................................................ 7
C, Determination Whether Officer Had Reasonable Suspicion ................... 8
CONCLUSION ................................................................................................................................ 10
PRAYER ........................................................................................................................................... 10
CERTIFICATE OF SERVICE ...................................................................................................... 11
CERTIFICATE OF COMPLIANCE ........................................................................................... 11
APPENDIX (Court of Appeals Opinion) ............................................................................... A
APPENDIX (Dissenting Opinion) ............................................................................................ B iii INDEX OF AUTHORITIES
CASES PAGES
Andrews v. State, 79 S.W.3d 649 (Tex. App. – Waco 2002, pet. refused) ........................................... 7
Byram v. State, ____ S.W.3d ____, 2015 WL 6134114 (Tex. App. - Fort Worth October 15, 2015)...................................................................................................... passim
Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997) ....................................................................... 8
Flores v. State, 2014 WL 7340279 (Tex. App. - San Antonio December 23, 2014, no pet.) ............................................................................................. 7
Gutierrez v. State, 221 S.W.3d 680 (Tex. Crim. App. 2007) ....................................................................... 4
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997)..................................................................... 3, 4
Harper v. State, 349 S.W.3d 188 (Tex. App. – Amarillo 2011, pet. refused) .................................. 9
Loserth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998) ....................................................................... 4
Martinez v. State, 348 S.W.3d 919 (Tex. Crim. App. 2011) ....................................................................... 4
Newman v. State, 2001 WL 279182 (Tex. App. – Houston [1st Dist.] March 22, 2001, no pet.) ..................................................................................................... 9
iv State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000).......................................................................... 3
Wright v. State, 18 S.W.3d 245 (Tex. App. – Austin 2000, pet. refused) ......................................... 7
RULES
Tex. R. App. P. 9.4(e) ................................................................................................................. 11
Tex. R. App. P. 9.4(i) ........................................................................................................... 11, 12
v IN THE COURT OF CRIMINAL APPEALS OF TEXAS
CAMERON BYRAM, § APPELLANT § § V. § NO. PD-____-15 § THE STATE OF TEXAS, § APPELLEE §
STATE’S PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
STATEMENT REGARDING ORAL ARGUMENT
The State requests that oral argument be granted because this case
involves important questions of State law to be decided.
STATEMENT OF THE CASE
This case addresses the circumstances under which a police officer may
exercise his community caretaking duties within the constraints of the Fourth
Amendment to the United States Constitution.
1 STATEMENT OF PROCEDURAL HISTORY
The appellant was charged with driving while intoxicated while
possessing an open container within his immediate possession. (C.R. I:6).
The appellant filed a pre-trial motion to suppress all evidence connected with
his detention and his arrest alleging the police detained him without a
warrant, probable cause, or reasonable suspicion. (C.R. I:13-15).
Following a hearing, the trial court denied the appellant’s suppression motion.
(R.R. I:24). The appellant subsequently pled guilty and was sentenced to
ninety days’ confinement probated for eighteen months. (C.R. I:19).
On October 15, 2015, in a 2-1 decision, the Court of Appeals held that
the trial court abused its discretion in denying the appellant’s motion to
suppress because:
• The car passenger was not in sufficient distress to justify the police officer’s stop under the community caretaking exception to the Fourth Amendment’s warrant requirement; and
• The police officer lacked reasonable suspicion that the appellant was engaged in an alcohol-based offense.
See Byram v. State, ____ S.W.3d ____, 2015 WL 6134114 (Tex. App. - Fort
Worth October 15, 2015).
2 QUESTIONS FOR REVIEW
1. Whether the Court of Appeals gave proper deference to the trial court’s determination of factual issues and application-of-law-to-fact issues that turn on credibility or demeanor?
2. Whether the Court of Appeals properly determined that the police officer’s stop did not qualify under the community caretaking exception to the Fourth Amendment’s warrant requirement?
3. Whether the Court of Appeals properly determined that the police officer lacked reasonable suspicion to stop the appellant’s vehicle?
ARGUMENT
A. Deference to Trial Court’s Implied Factual Findings on Community Caretaking
The Court of Appeals failed to give proper deference to the trial court’s
implied factual findings supporting its determination that this stop qualified
under the community caretaking exception to the warrant requirement.
In a suppression hearing, the trial court is the sole trier of fact and judge
of the credibility of the witnesses and the weight to be given their testimony.
State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The reviewing court must afford
almost total deference to the trial court’s application of law to fact questions
which turn upon an evaluation of the credibility and demeanor of the 3 witnesses. Martinez v. State, 348 S.W.3d 919, 921-22 (Tex. Crim. App.
2011); Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998); Guzman
v. State, 955 S.W.2d at 89. The reviewing court must view the evidence and
all its reasonable inferences in the light most favorable to the trial court’s
ruling. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007).
When the trial court does not make explicit findings of fact, the reviewing
court should infer the necessary factual findings that support the court's
ruling when the evidence supports the implied findings. Gutierrez v. State,
221 S.W.3d at 687.
In denying the appellant’s suppression motion, the trial court made two
implicit findings:
• Officer Figueroa was primarily motivated by a community caretaking purpose; and
• Officer Figueroa’s belief that the female passenger required assistance was reasonable.
See Byram v. State, 2015 WL 6134114, at *6 (Walker J., dissent).
Officer Figueroa testified that he initiated a traffic stop because he was
concerned about the female passenger’s safety because she was hunched over,
not moving and seemingly unconscious, and the appellant was ignoring his
inquiry whether his passenger needed assistance. (R.R. I:8-12, 14). The 4 majority opinion does not dispute that Officer Figueroa was primarily
motivated by community caretaking purposes. See Byram v. State, 2015
WL 6134114, at *2-3.
As aptly described by Justice Walker in her dissenting opinion, the
record supports the trial court’s implied finding that Officer’s Figueroa’s belief
was reasonable:
Viewed in the light most favorable to the trial court's ruling, the evidence presented at the suppression hearing established that at approximately 5:30 p.m. on the Fourth of July holiday, the female front-seat passenger was hunched over and not moving in a vehicle that smelled of alcohol and was being driven in the “bar district” of downtown Fort Worth by a man who was unconcerned about her condition and refused to respond to Officer Figueroa's inquiry about the woman's status. Looking to the four nonexclusive factors to assess the reasonableness of Officer Figueroa's belief that the female passenger needed assistance, the nature and level of the female's distress was significant—she was not moving and appeared unconscious. The female's location—in a vehicle driven by a man who appeared unconcerned about her well-being—was precarious. Her access to assistance was doubtful for this same reason—the man driving the SUV exhibited no concern about his passenger in response to Officer Figueroa's query about her condition. And the female was a danger to herself; she appeared comatose and incapable of asking for help. Thus, all four factors—the female's level of distress, her location, her lack of access to assistance, and the danger to herself—support the reasonableness of Officer Figueroa's belief that she needed assistance.
Byram v. State, 2015 WL 6134114, at *6 (footnotes omitted).
By contrast, rather than give the trial court any deference or view its
5 findings in their most favorable light, the majority opinion instead discounts
its implied finding that Officer Figueroa’s belief was reasonable by reducing it
to the facts:
[T]hat the passenger appeared “hunched over” in the passenger seat of Byram's vehicle and that he smelled the odor of an alcoholic beverage emitting from the vehicle
Byram v. State, 2015 WL 6134114, at *3. The majority’s assessment of each
community caretaking factor further shows their lack of deference:
• In assessing the first factor, the majority dismisses the fact that the passenger was seemingly unconscious and suffering from possible alcohol poisoning merely because Officer Figueroa did not discover her nauseous state until after he effectuated the traffic stop. See Byram v. State, 2015 WL 6134114, at *3.
• In assessing the second and third factor, the majority focuses on the fact that the passenger was not alone and was downtown with nearby hospitals; however, as pointed out by the dissent, they do not even consider that the appellant’s actions did not show concern for his passenger or that he was seeking medical assistance. See Byram v. State, 2015 WL 6134114, at *3, 6.
• In assessing the fourth factor, the majority dismisses the possible danger to the passenger since she engaged in no overt dangerous act other than being “hunched over” in an alcohol-reeked vehicle. See Byram v. State, 2015 WL 6134114, at *3.
Whereas a deferential factual review, as the dissent indicates, actually
supports the trial court’s implied finding that Officer Figueroa’s stop was
reasonable. See Byram v. State, 2015 WL 6134114, at *6-7. 6 B. Determination Whether Stop Qualified Under Community Caretaking Exception
The Court of Appeals improperly determined that this stop did not
qualify under the community caretaking exception to the warrant
requirement.
In holding that Officer Figueroa’s belief was unreasonable, the majority
places undue focus on the “vomit” cases 1 and the fact that the female
passenger was not alone in an isolated place. See Byram v. State, 2015 WL
6134114, at *3. First, this case involves much more than a passenger is
vomiting out the window most likely suffering from an upset stomach; the
passenger herein was seemingly unconscious and possibly suffering from
alcohol poisoning given her location inside an alcohol-effused vehicle
traveling in a bar district on a holiday known for excessive partying. (R.R.
II:6-9). Additionally, the police’s community caretaking function is not
limited to isolated places or to people who are alone. See Flores v. State,
2014 WL 7340279, at *3 (Tex. App. - San Antonio December 23, 2014, no pet.).
In sum, when the evidence and its reasonable inferences are viewed in
1 See Andrews v. State, 79 S.W.3d 649, 651-52 (Tex. App. – Waco 2002, pet. refused); Wright v. State, 18 S.W.3d 245, 246 (Tex. App. – Austin 2000, pet. refused).
7 the light most favorable to the trial court’s ruling, all four factors - the female
passenger's level of distress and seeming unconsciousness, her location in a
vehicle driven by an unconcerned driver, her lack of access to assistance, and
the danger to herself - support the reasonableness of Officer Figueroa's belief
that she needed assistance.
C. Determination Whether Officer Had Reasonable Suspicion
The Court of Appeals improperly determined that the officer lacked
reasonable suspicion to stop the appellant’s vehicle. An investigative
detention is reasonable, and thus constitutional, if an officer has a reasonable
suspicion that some activity out of the ordinary is occurring or has occurred,
some suggestion to connect the detainee with the unusual activity, and some
indication that the unusual activity is related to a crime. See Davis v. State,
947 S.W.2d 240, 244 (Tex. Crim. App. 1997).
Officer Figueroa had a reasonable suspicion to stop the appellant
because he was in an area and at a time known for excessive partying; an odor
of alcohol was wafting from his Tahoe; the female passenger was hunched
over and seemingly unconscious; he deliberately ignored Officer Figueroa’s
inquiry whether his passenger needed assistance; and his conduct was 8 abnormal compared to people’s normal response to police assistance
inquiries. (R.R. I:6-7, 9-11). An odor of alcohol and a driver’s odd
behavior may justify reasonable suspicion. See Harper v. State, 349 S.W.3d
188, 192 (Tex. App. – Amarillo 2011, pet. refused) (odor of alcohol emanating
from vehicle justified reasonable suspicion); Newman v. State, 2001 WL
279182, at *3 (Tex. App. – Houston [1st Dist.] March 22, 2001, no pet.) (not
designated for publication) (defendant’s nervousness and odor of alcohol
created reasonable suspicion).
The majority opinion dismisses the Newman and Harper decisions
because they involved a continued detention where the reasonable suspicion
arose after the police officer stopped the driver for a traffic violation. See
Byram v. State, 2015 WL 6134114, at *4. To the contrary, the “continued
detention” status in those cases is not dispositive to the issue of whether the
officer had a reasonable suspicion that the defendant was driving while
intoxicated because it only meant that the officer was in a lawful position to
develop his “reasonable suspicion”. See Harper v. State, 349 S.W.3d at 192;
Newman v. State, 2001 WL 279182, at *3. In the case herein, Officer
Figueroa was in a lawful position parked on a public street to develop his
reasonable suspicion without the need for any original traffic violation 9 detention to stop the appellant’s vehicle.
In sum, when the circumstances and all their reasonable inferences are
viewed in the light most favorable to the trial court’s ruling, Officer Figueroa
had a reasonable suspicion to stop the appellant for driving while intoxicated.
CONCLUSION
The Court of Appeals misapplied the proper standard of review and
acted as a “super-factfinder” in reversing the trial court’s decision to deny the
appellant’s suppression motion.
PRAYER
The State prays that this Court grant review in this cause, reverse the
decision of the Court of Appeals, and affirm the trial court’s decision.
Respectfully submitted,
SHAREN WILSON Criminal District Attorney Tarrant County, Texas
10 /s/ Steven W. Conder STEVEN W. CONDER, Assistant Criminal District Attorney State Bar No. 04656510 401 W. Belknap Fort Worth, Texas 76196-0201 (817) 884-1687 FAX (817) 884-1672 CCAAppellateAlerts@Tarrantcounty.tx.gov
CERTIFICATE OF SERVICE
A true copy of the State's petition for discretionary review has been
electronically served on opposing counsel, the Hon. Richard A. Henderson,
100 Throckmorton Street, Suite 540, Fort Worth, Texas 76102
(richard@rahenderson.com), on this, the 13th day of November, 2015.
/s/ Steven W. Conder STEVEN W. CONDER
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R. App.
P. 9.4(e) because it has been prepared in a conventional typeface no smaller
than 14-point for text and 12-point for footnotes, and with the word-count
limitations of Tex. R. App. P. 9.4(i) because it contains approximately 1559
11 words, excluding those parts exempted by Tex. R. App. P. 9.4(i)(1), as
computed by Microsoft Office Word 2010 - the computer program used to
prepare the document.
c18.byram cameron.pdr/state
12 A COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00343-CR
CAMERON BYRAM APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY TRIAL COURT NO. 1332976
OPINION
I. INTRODUCTION
In one issue, appellant Cameron Byram appeals the trial court’s denial of
his motion to suppress, which was followed by Byram pleading guilty to driving
while intoxicated with an open container. We will reverse and remand. II. Background
Fort Worth Police Officer Figueroa1 said that on July 4, 2013, he was in
downtown Fort Worth “conducting preventative patrol” when he found himself
stopped at a light in his patrol vehicle alongside Byram’s vehicle. Figueroa said
that his own window was down and that the passenger’s window on Byram’s
vehicle was rolled all the way down. Figueroa testified that the female passenger
in Byram’s vehicle drew his attention because she “was sitting in the passenger
seat . . . hunched over.” Figueroa averred that he “didn’t see any movement at
all [from] the female.” Given the female passenger’s posture, Figueroa averred
that he believed the passenger to be unconscious and “possibly [in need of]
some medical attention.” According to Figueroa, he suspected she might be
suffering from “alcohol poisoning.”
Figueroa also testified that he could smell the “odor of an alcoholic
beverage coming from that vehicle.” Figueroa said that he was “maybe less than
ten feet” away from Byram’s vehicle at the time. According to Figueroa, Byram
was looking forward and not attending the female passenger. Figueroa said that
he “yelled over to [Byram] to ask him if [the female passenger] was okay” but that
Byram “ignored” Figueroa despite Figueroa’s belief that Byram could hear him.
Figueroa testified that when the light turned green, Byram drove off.
Figueroa interpreted Byram’s actions as an attempt to “avoid contact with the
1 We note that Figueroa’s first name is not in the record.
2 police.” Figueroa said that Byram’s actions further raised his concerns for the
passenger. Thus, Figueroa conducted a traffic stop. Figueroa said that upon
stopping Byram, he immediately checked on the passenger; that she was “barely
conscious”; and that it appeared to him that she “had some sort of medical
problem.” At that time, Figueroa said that he determined the passenger had
“vomited . . . all over the passenger side of that vehicle.” Figueroa called for
medical attention, but when they arrived, the female passenger refused their
assistance.
Figueroa testified that Byram had not committed a traffic offense; that there
were not technical violations present on Byram’s vehicle prior to him conducting
the stop; and that the only reason he stopped Byram’s vehicle was to perform a
safety check on the passenger. Upon stopping Byram’s vehicle, Figueroa said
that he began to simultaneously conduct a safety check on the passenger and
investigate Byram for driving while intoxicated (DWI). At the suppression
hearing, the State stipulated that the stop of Byram’s vehicle was not conducted
pursuant to a warrant and that Byram’s car was in the vicinity of several hospitals
within a five-mile radius. The trial court denied Byram’s motion to suppress.
Byram then entered a plea of guilty, and the trial court assessed punishment at
ninety days in jail and a $750 fine. The trial court then suspended Byram’s
sentence and placed him on community supervision for eighteen months. This
appeal followed.
3 III. DISCUSSION
In one issue, Byram argues that the trial court erred by denying his motion
to suppress. Specifically, Byram argues that the community caretaking exception
to the Fourth Amendment does not apply to the facts of this case. The State
argues that the community caretaking exception applies in this case or, in the
alternative, that Figueroa possessed reasonable suspicion to stop Byram.
A. Standard of Review and Fourth Amendment Law
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
We give almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at
673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.
State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214
S.W.3d 17, 24 (Tex. Crim. App. 2007). To suppress evidence because of an
alleged Fourth Amendment violation, the defendant bears the initial burden of
producing evidence that rebuts the presumption of proper police conduct.
Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex.
4 Crim. App.), cert. denied, 558 U.S. 1093 (2009). A defendant satisfies this
burden by establishing that a search or seizure occurred without a warrant.
Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the
burden of proof shifts to the State, which is then required to establish that the
search or seizure was conducted pursuant to a warrant or was reasonable. Id. at
672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v.
State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
Under the Fourth Amendment, a warrantless arrest is unreasonable per se
unless it fits into one of a “few specifically established and well delineated
exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135
(1993); Torres, 182 S.W.3d at 901.
B. Community Caretaking Exception
The Court of Criminal Appeals has determined that a search or seizure is
not “unreasonable” when it is done pursuant to a valid exercise of the community
caretaking function. Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999)
(citing Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528 (1973)).
This exception is one of “narrow applicability.” Wright, 7 S.W.3d at 152. Indeed,
as the Court stated, “Only in the most unusual circumstances” will the community
caretaking exception be applicable. Id. In Wright, the Court provided a list of
four nonexclusive factors to be considered when deciding whether a search or
seizure is justified by this narrow exception:
(1) the nature and level of the distress exhibited by the individual;
5 (2) the location of the individual;
(3) whether or not the individual was alone and/or had access to assistance independent of that offered by the officer; and
(4) to what extent the individual—if not assisted—presented a danger to himself or others.
Id. Even giving almost total deference to a trial court’s rulings on questions of
historical fact and application-of-law-to-fact questions that turn on an evaluation
of credibility and demeanor, our application of these factors to Byram’s case
leads us to conclude that the community caretaking exception does not apply.
As to the first factor, the single fact “exhibited” by Byram’s passenger was
that she appeared to be passed out. It was not until after Figueroa effectuated
his stop that he learned that the passenger had vomited, and even that fact
would not have been sufficient to apply the narrow exception of community
caretaking. See Andrews v. State, 79 S.W.3d 649, 653 (Tex. App.—Waco 2002,
pet. ref’d) (holding stop not reasonable when officer observed driver stop on
shoulder, passenger open door and appear to vomit, and car drive off); see also
Wright v. State, 18 S.W.3d 245, 247 (Tex. App.—Austin 2000, pet. ref’d) (holding
stop not reasonable when officer observed passenger hang head out of window
and appear to vomit). Here, even though this factor is afforded the greatest
weight of the factors to consider, its strength is fairly low in favor of the
community caretaking exception. See Corbin v. State, 85 S.W.3d 272, 277 (Tex.
Crim. App. 2002) (“Because the purpose of the community caretaking exception
6 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.”).
As to the second factor, although there is evidence that Byram was in an
area where individuals might be drinking alcohol, there is nothing in the record to
demonstrate that the type of facts normally associated with this factor are present
in this case. See Morfin v. State, 34 S.W.3d 664, 666 (Tex. App.—San Antonio
2000, no pet.) (considering it significant to community caretaking exception that
vehicle approached by police was parked in “very high crime area”); see also
Chilman v. State, 22 S.W.3d 50, 55 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d) (considering it significant that car was parked in “a spot where people
normally do not park”). In this case, the vehicle was in a location where there
were numerous people and vehicles, and as was stipulated by the State at the
suppression hearing, it was stopped at a stoplight in an area near several
hospitals within a five-mile radius. See Corbin, 85 S.W.3d at 278 (“Since there is
nothing in the record indicating that this area is isolated with little traffic and no
business or houses nearby, it cannot support the [community caretaking]
ruling.”). This factor weighs against application of the community caretaking
exception.
As to the third factor, Byram’s passenger was not alone. There is nothing
in the record to indicate that the passenger did not have access to assistance
independent of Figueroa. See id. (reasoning that third factor applied when
individual was alone and without assistance other than from arresting officer).
7 This factor as well weighs against application of the community caretaking
As to the fourth factor, there is no evidence that supports that Byram’s
passenger presented a danger to herself or others. Much like in our analysis of
the first factor, the only facts relied upon by Figueroa were that the passenger
appeared “hunched over” in the passenger seat of Byram’s vehicle and that he
smelled the odor of an alcoholic beverage emitting from the vehicle. We simply
cannot conclude that the “narrow applicability” of the community caretaking
exception, when applied to a “hunched over” passenger who was in a vehicle
that smelled of an alcoholic beverage, indicates that the passenger presented a
danger to herself or others. This factor weighs against application of the
community caretaking exception.
We conclude that along the “community caretaking distress spectrum,” this
case strongly tends to involve no apparent distress. See Wiseman v. State,
No. 02-06-00021-CR, 2006 WL 3334171, at *7 (Tex. App.—Fort Worth Nov. 16,
2006, pet ref’d) (mem. op., not designated for publication). Indeed, the
passenger who Figueroa said he felt needed assistance did not appear to be in
any great distress, she was located in a busy area of town where there were
nearby hospitals, she was not alone, and she did not appear to be a danger to
herself or others. See Id. (“In the community caretaking distress spectrum, the
most severe distress tends to involve solo drivers in some sort of trouble.”).
8 C. No Reasonable Suspicion to Detain Byram
The State argues that the trial court had an independent reason to deny
Byram’s motion to suppress. Specifically, the State argues that Figueroa had
“reasonable suspicion to stop” Byram because he was in an area and at a time
“known for excessive partying”; that the odor of alcohol was “wafting” from
Byram’s vehicle; that the female passenger was “hunched over”; and that
Byram’s decision to ignore Figueroa was “abnormal.” The State argues that the
totality of these circumstances gave rise to Figueroa having a reasonable
suspicion to stop Byram. The State does not directly identify what “crime”
Figueroa had suspicion of.
In support of its position, the State cites to two cases where the odor of
alcohol coupled with other behavior was found sufficient reasonable suspicion to
investigate alcohol-based offenses. Harper v. State, 349 S.W.3d 188, 192 (Tex.
App.—Amarillo 2011, pet. ref’d) (possession of marihuana and open container);
Newman v. State, No. 01-00-00106-CR, 2001 WL 279182, at *1 (Tex. App.—
Houston [1st Dist.] Mar. 22, 2001, no pet.) (op., not designated for publication)
(possession of marihuana). But the State’s reliance on these cases is misplaced.
Both Harper and Newman involved a continued detention after a vehicle had
been lawfully stopped for a traffic violation and where the detaining officers
developed reasonable suspicion upon encountering the suspects face-to-face.
Harper, 349 S.W.3d at 192 (holding officer who stopped vehicle for a non-
working taillight had probable cause to conduct warrantless search where officer
9 smelled odor of alcohol and passenger admitted that there was an open
container of alcohol and marihuana in the vehicle); Newman, 2001 WL 279182,
at *1 (holding that continued detention was justified where two officers smelled
strong odor of alcohol on defendant and defendant gave suspicious answers to
questions and he appeared to not want officers to search his vehicle).
Here, Figueroa smelled the “odor of an alcoholic beverage” from the
vantage of his vehicle in an area where admittedly there were numerous people
in Figueroa’s direct vicinity—a vicinity that Figueroa described as being a “4th of
July weekend celebration” where there was “a lot of partying” occurring. Further,
we are loathe to find that Byram’s exercise of his constitutional right to ignore a
police officer is “abnormal.” Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim.
App. 1995) (“While a law enforcement officer is free to approach a citizen and
ask questions, the citizen is also free to not answer the questions.”). And we
have already addressed that Byram’s passenger having been “hunched over”
was insufficient to support Figueroa’s stop of Byram’s vehicle.
We do not question the good faith of Figueroa’s subjective suspicion that
Byram might have been involved in an alcohol-based offense. Nevertheless, so
long as consumption of alcohol is not illegal in and of itself, a standard permitting
or requiring detention and investigation of persons for alcohol-based offenses
solely on whether the odor of alcohol is present invites unwarranted police
intrusions into the affairs and freedom of persons. See Terry, 392 U.S. at 21–22,
88 S. Ct. at 1880. Because of the absence of articulable facts which could
10 reasonably raise a suspicion that Byram was engaged in an alcohol-based
offense, Figueroa’s stopping him violated Byram’s Fourth Amendment rights.
See Domingo v. State, 82 S.W.3d 617, 622 (Tex. App.—Amarillo 2002, no pet.)
(holding no reasonable suspicion existed to support detention when defendant's
conversation with officer occurred at 9:00 p.m. in high-crime area, defendant was
part of a group that was lawfully socializing and drinking alcohol without engaging
in disruptive or illegal activities, and the officer was not responding to or
investigating reports of criminal activity); see also Clement v. State, 461 S.W.3d
274, 282 (Tex. App.—Eastland 2015, pet. granted) (holding that State failed to
establish that police officer had probable cause to arrest defendant for driving
while intoxicated where officer had not specifically testified about any physical
observations he made of defendant’s eyes, speech, or movement, and officer
relied upon the fact that he smelled alcohol on defendant to conduct the arrest).
We hold that the trial court abused its discretion by denying Byram’s motion to
suppress.
E. Harm
We further hold that because Byram was seized in violation of his
constitutional rights and he pleaded guilty only after the trial court’s denial of his
motion to suppress, the trial court’s incorrect finding caused Byram harm. See
Tex. Rule App. P. 44.2(a); see also Holmes v. State, 323 S.W.3d 163, 172–74
(Tex. Crim. App. 2009) (holding that trial court’s denial of appellant’s motion to
11 suppress is deeply connected to decision to plead guilty). We sustain Byram’s
sole issue.
IV. CONCLUSION
Having sustained Byram’s sole issue, we reverse the trial court’s judgment
and remand this case to the trial court for a new trial or further proceedings
consistent with this opinion. See Tex. R. App. P. 43.2(d).
/s/ Bill Meier BILL MEIER JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
WALKER, J., filed a dissenting opinion.
PUBLISH
DELIVERED: October 15, 2015
12 B COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY TRIAL COURT NO. 1332976
DISSENTING OPINION
I respectfully dissent. The majority fails to view the evidence and all its
reasonable inferences in the light most favorable to the trial court’s denial of
Appellant Cameron Byram’s motion to suppress and fails in its analysis of the
community-caretaking exception to conduct an objective review focusing on what
Officer Figueroa observed. II. The Facts
At the motion-to-suppress hearing, Fort Worth Police Officer Figueroa was
the only witness. He testified that on July 4, 2013, at approximately 5:30 p.m., he
was patrolling the bar district in downtown Fort Worth. Because it was a holiday,
there was “a lot of partying” going on and a lot of vehicle and pedestrian traffic.
Officer Figueroa stopped his patrol car at a red light at the intersection of 4th
Street and Houston Street. He had his windows down, and a black Chevy SUV
pulled up at the light “right next” to the driver’s side of Officer Figueroa’s patrol
car. The SUV had its passenger-side window “rolled all the way down” giving
Officer Figueroa an unobscured view into the SUV. Officer Figueroa looked over
at the SUV and noticed a female hunched over in the front seat. He smelled the
odor of alcohol wafting from the vehicle. The female passenger was not moving
and Officer Figueroa was concerned that she was unconscious, had alcohol
poisoning, or possibly needed medical attention. Officer Figueroa could see the
driver of the SUV and “yelled over to him,” asking if the female passenger was
okay. Officer Figueroa had no doubt that the SUV’s driver heard him yell, but the
driver ignored Officer Figueroa and “just look[ed] forward.” The light turned
green; the driver ignored Officer Figueroa and drove off. This raised a further
concern to Officer Figueroa that the SUV driver was trying to avoid contact with
police; typically, people respond to questions from police officers.
Because he was concerned about the female passenger, Officer Figueroa
initiated a traffic stop at the 400 block of West 4th Street. When he approached
2 the driver’s side of the SUV, he observed that the front-seat female passenger
had vomited all over herself and the passenger side of the SUV and that she was
barely conscious. Officer Figueroa determined that the passenger “had some
sort of medical problem” and “immediately” called Medstar. An ambulance
arrived within two minutes. Officer Figueroa determined that the SUV’s driver,
Byram, was intoxicated and arrested him.
III. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.
Crim. App. 2000). The trial judge is the sole trier of fact and judge of the
credibility of the witnesses and the weight to be given their testimony. State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Therefore, we give almost
total deference to the trial court’s rulings on (1) questions of historical fact and (2)
application-of-law-to-fact questions that turn on an evaluation of credibility and
demeanor. Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
However, when the trial court’s rulings do not turn on the credibility and
demeanor of the witnesses, we review de novo a trial court’s rulings on mixed
questions of law and fact. Id. When the trial court does not make explicit
findings of historical facts, as in the instant case, we review the evidence in the
light most favorable to the trial court’s ruling and assume the trial court made
implicit findings of fact supporting its ruling, so long as those findings are
supported in the record. Carmouche, 10 S.W.3d at 327–28.
3 IV. The Community-Caretaking Exception to the Warrant Requirement
The law is well settled that, 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. See,
e.g., Gonzales v. State, 369 S.W.3d 851, 854–55 (Tex. Crim. App. 2012) (holding
community-caretaking exception applied when police officer observed vehicle
pull onto shoulder of road in isolated area and pulled in behind vehicle to “see if
everything was okay”); Wright v. State, 7 S.W.3d 148, 151–52 (Tex. Crim. App.
1999) (holding community-caretaking exception applied when police officer
observed front-seat passenger leaning out window of moving car and vomiting).
As part of his duty to “serve and protect,” a police 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.
Determining whether an officer has properly invoked the
community-caretaking function is a two-step process. Corbin v. State, 85 S.W.3d
272, 277 (Tex. Crim. App. 2002). First, the reviewing court must determine
whether the officer was primarily motivated by a community-caretaking purpose.
Id. Second, the court must determine whether the officer’s belief that assistance
was required was reasonable. Id. Courts consider four nonexclusive factors in
determining whether the officer’s belief that the defendant needed help was
reasonable: (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
4 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. Id.
V. Analysis
Under the first prong of the community-caretaking analysis, the trial court
here implicitly found that when Officer Figueroa stopped the SUV, he was
primarily motivated by a community-caretaking purpose.1 The evidence supports
this implicit finding; Officer Figueroa testified that he stopped the SUV because of
his concern for the female passenger.2 See id. (“The trial court, as the exclusive
judge of credibility and finder of fact, could have concluded that [the officer] was
primarily motivated by community caretaking concerns.”).
Under the second pong of the community-caretaking analysis, the trial
court implicitly found that, given the totality of the circumstances, Officer
Figueroa’s belief that assistance was required was reasonable. Viewed in the
light most favorable to the trial court’s ruling, the evidence presented at the
suppression hearing established that at approximately 5:30 p.m. on the Fourth of
July holiday, the female front-seat passenger was hunched over and not moving
in a vehicle that smelled of alcohol and was being driven in the “bar district” of
downtown Fort Worth by a man who was unconcerned about her condition and
refused to respond to Officer Figueroa’s inquiry about the woman’s status.
1 The trial court issued no express findings of fact or conclusions of law. 2 Byram does not challenge this component of the community-caretaking exception.
5 Looking to the four nonexclusive factors to assess the reasonableness of Officer
Figueroa’s belief that the female passenger needed assistance, the nature and
level of the female’s distress was significant––she was not moving and appeared
unconscious. The female’s location––in a vehicle driven by a man who appeared
unconcerned about her well-being––was precarious. Her access to assistance
was doubtful for this same reason––the man driving the SUV exhibited no
concern about his passenger in response to Officer Figueroa’s query about her
condition.3 And the female was a danger to herself; she appeared comatose and
incapable of asking for help. Thus, all four factors––the female’s level of
distress, her location, her lack of access to assistance, and the danger to
herself––support the reasonableness of Officer Figueroa’s belief that she needed
assistance. Based on this objective analysis focusing on what Officer Figueroa
observed, I would hold that the trial court properly determined that Officer
Figueroa’s belief that the female passenger needed assistance under his
3 The majority points out that hospitals were nearby and that the female was not alone. But these two facts do not make Officer Figueroa’s decision to stop the SUV less reasonable because Byram ignored Officer Figueroa’s question concerning the female’s condition and exhibited no concern about her, which gave rise to a reasonable inference that he had no intention of providing assistance. See Flores v. State, No. 04-13-00548-CR, 2014 WL 7340279, at *3 (Tex. App.—San Antonio Dec. 23, 2014, no pet.) (mem. op., not designated for publication) (holding community-caretaking exception applied when police officer observed car parked in McDonald’s parking lot at 3:00 a.m. even though drive- through lane was open and employees were inside the restaurant because “there were no signs that anyone from the restaurant was assisting [the driver]”).
6 community-caretaking responsibilities was reasonable under the totality of the
circumstances. See Gonzales, 369 S.W.3d at 856.
Accordingly, after viewing the evidence and the reasonable inferences
from the evidence in the light most favorable to the trial court’s ruling, I would
hold that the trial court did not abuse its discretion in determining that Officer
Figueroa was primarily motivated by community-caretaking concerns and
reasonably believed that assistance was required. See, e.g., Lollie v. State, 465
S.W.3d 312, 315–17 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding
community-caretaking exception applied to officer’s decision to pull over car
driving slowly on isolated, dark road). Thus, the community-caretaking exception
to the warrant requirement applied.
VI. Conclusion
For the reasons set forth above, I would overrule Byram’s sole issue and
affirm the trial court’s denial of his motion to suppress.4 Because the majority
does not, I dissent.
/s/ Sue Walker SUE WALKER JUSTICE
4 Because I would affirm the trial court’s denial of Byram’s motion to suppress based on the community-caretaking exception, I would not reach the State’s alternative argument that the stop was supported by reasonable suspicion.