                                  NO. 07-11-0341-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL B

                                  JUNE 18, 2012
                          _____________________________

                                 JUSTIN LEE SOLANO,

                                                                 Appellant
                                            v.

                                THE STATE OF TEXAS,

                                                                 Appellee
                          _____________________________

           FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

                NO. 10-12-7216; HONORABLE PAT PHELAN, PRESIDING
                          _____________________________

                                     Opinion
                          _____________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Justin Lee Solano appeals his conviction for possessing a controlled substance

(methamphetamine) in an amount less than one gram. Purportedly, the trial court erred

in denying both his motions 1) to suppress the evidence and 2) for new trial. We affirm

the judgment.

      Issue 1 – Motion to Suppress

      As for the suppression issue, the evidence of his guilt was subject to

suppression, in his view, because his “initial interaction” with the sheriff’s deputy was
not supported by reasonable suspicion that crime was afoot. In other words, the deputy

“did not have reasonable suspicion to detain” him. We overrule the issue.

       Whether the trial court erred in denying a motion to suppress is determined under

the standard of review in Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). Per

that standard, we defer to the trial court’s resolution of historical fact but review de novo

its interpretation of the law.   Id. at 493.       So too do we look at the totality of the

circumstances involved. Kothe v. State, 152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004).

       According to the record before us, Hockley County Deputy Raul Lopez was

traveling behind Tanya McDaniel as she drove down FM 168. There was at least one

other car between their vehicles. Eventually, McDaniel pulled onto the side of the road.

After passing her, Deputy Lopez noticed appellant exit from the McDaniel car and raise

the hood of the engine compartment. This caused him to “want[] to make sure that

everything was fine, everything was running,” and that “they’re going to get to their

destination.” So, he turned his patrol unit around, drove back to where McDaniel had

stopped, stopped in front of McDaniel’s car, unlatched the hood of his engine

compartment, and engaged his emergency lights. The latter was done to apprise others

traveling down the farm-to-market road of their presence.

       Around the time the deputy arrived, appellant closed the hood of McDaniel’s

vehicle, walked to its passenger window, stood outside it, and began conversing with

her. At about that time, the officer exited his patrol car and directed appellant to come

to him. Appellant complied, and that apparently constituted the “initial interaction” or

detention now condemned by him.           He argues that the deputy at least needed

reasonable suspicion to believe crime was afoot before beckoning him over.



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       Irrespective of whether reasonable suspicion to detain someone exists, an

officer still may temporarily detain an individual (as part of the community caretaking

function) when circumstances exist allowing a reasonable person to believe that the

individual is in need of help. Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999).

The officer’s primary motive must be concern for the person’s well being. Corbin v.

State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002); see Gibson v. State, 253 S.W.3d

709, 714 (Tex. App.–Amarillo 2007, pet. ref’d) (stating that the community caretaking

function is "totally divorced" from the detection, investigation, or acquisition of evidence

relating to the violation of a criminal statute and justifies a seizure only when the

officer’s primary purpose was to act for the welfare of the individual in need of

assistance). And, if it is determined that the officer’s primary motive was to act for the

welfare of someone needing help, then the court must assess the reasonableness of

the officer’s belief that help was needed. Gibson v. State, 253 S.W.3d at 714. This is

done by considering four non-exclusive factors; they consist of 1) the nature and level of

distress exhibited by the person, 2) the location of the person, 3) whether the person

was alone or had access to assistance independent of the officer, and 4) to what extent

the person presented a danger to himself or others if not assisted. Id. at 714-15.

       As previously illustrated, the deputy testified that he returned to McDaniel’s car

and stopped in front of it to make sure that everything was fine and that they were going

to arrive at their destination. By that time, he had seen the vehicle pull to the side of the

road and appellant raise its hood. Those circumstances, coupled with the evidence of

his engaging his emergency lights to warn other drivers of their presence and unlatching

the hood of his own vehicle to provide McDaniel with a “boost,” if needed, is more than



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ample evidence upon which the trial court could conclude that the deputy was primarily

motivated to stop out of his concern for the welfare of appellant and McDaniel.

       That the deputy also began to wonder whether the two individuals were engaged

is some sort of “disturbance,” “altercation” or the like when appellant began talking to

McDaniel through the window does not necessarily prevent a factfinder from concluding

that the deputy’s primary motive was something else.         Experiencing motor vehicle

problems while on the road often leads to consternation or frustration among those

involved. So, wondering whether the occupants of an inoperative car sitting on the side

of a road are experiencing frustration or anger would seem to be a logical, if not

practical, precaution when stopping to help in such situations.

     The litany of evidence we have described so far also provided ample basis for the

trial court to conclude that Deputy Lopez’ belief that help was needed was reasonable.

At the very least it is within the realm of reasonable debate to infer from seeing a car on

the side of a road with its hood up that those occupying the vehicle are experiencing car

troubles. And, an officer’s attempt to help in that situation would no doubt be seen as a

reasonable, if not desired, response.      Thus, we hold that the initial interaction or

detention at issue could be justified as an instance of an officer legitimately exercising

his community caretaking function. See Wiseman v. State, No. 02-06-021-CR, 2006

Tex. App. LEXIS 10030, at *15-16 (Tex. App.–Fort Worth 2006, pet. ref’d) (not

designated for publication) (holding that the trial court could have believed the officer

was primarily motivated by the community caretaking function when he made the

decision to turn around and check on a vehicle that he observed parked against a curb

in an apartment complex with its hazard lights on and a passenger half in and half out of

the vehicle with his legs protruding).

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        Issue 2 – Motion for New Trial

        Next, appellant claims the trial court erred in denying his motion for new trial. He

believed himself entitled to same because the jury allegedly heard new evidence after it

retired to deliberate. Thus, Texas Rule of Appellate Procedure 21.3(f) entitled him to a

new trial.1 We overrule the issue.

        Though appellant moved for new trial, the record does not illustrate that the

motion was presented to the trial court. Such is required under Texas Rule of Appellate

Procedure 21.6. Thus the issue now before us was not preserved for review. 2 See

Thompson v. State, 243 S.W.3d 774, 776 (Tex. App.–Fort Worth 2007, pet. ref’d)

(holding that though the record established that appellant timely filed a motion for new

trial, there was no evidence that he delivered the motion or otherwise brought it to the

trial court's attention or gave the trial court actual notice of the filing, and since the mere

filing of a motion is not evidence of presentation, appellant forfeited his complaints for

review because he did not preserve error); accord Guilbeau v. State, No. 06-10-00140-

CR, 2011 Tex. App. LEXIS 2872, at *5-6 (Tex. App.–Texarkana 2011, pet. ref’d) (not

designated for publication) (holding the same).

        Accordingly, the judgment is affirmed.

                                                          Brian Quinn
                                                          Chief Justice


Publish.


        1
          Per Rule 21.3(f), a defendant must be provided a new trial when "after retiring to deliberate, the
jury has received other evidence. . . ." TEX. R. APP. P. 21.3(f).
        2
         The motion for new trial did contain a “Certificate of Presentment” which stated that “a true and
correct copy of the above and foregoing has been hand-delivered to the Office for the [Court], on this day,
9/15/11.” Such a certificate is not sufficient to establish presentment. Burrus v. State, 266 S.W.3d 107,
115 (Tex. App.–Fort Worth 2008, no pet.).

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