                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-15-00195-CR


JASON DEARMOND                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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      FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY
               TRIAL COURT NO. CR-2014-08239-D

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                                   OPINION

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      Appellant Jason Dearmond appeals from his conviction for driving while

intoxicated. In a sole issue, he argues that the trial court erred and abused its

discretion by denying his pretrial motion to suppress. Because the totality of the

circumstances as found by the trial court supported the conclusions that the

arresting officer had reasonable suspicion to stop Dearmond’s car and that the
community-caretaking function justified the stop, we affirm the trial court’s denial

of the motion to suppress.

                                  I. BACKGROUND

      On July 2, 2014, at 11:30 p.m., Officer Tim Henderson, while on patrol in a

residential area, heard the repeated “thud” sound of a flat tire. Henderson then

saw a car with two flat tires on the driver’s side of the car drive by Henderson’s

patrol car and stop at an intersection. Fearing for the driver’s safety and that of

the general public, Henderson turned on his patrol lights, with the intent to offer

the driver help with the flat tires, and initiated a traffic stop. Henderson stated

that once he saw the flat tires, he pulled behind the car and “activated [his]

overhead emergency lights on [his] patrol vehicle to initiate contact with the

motorist and check their welfare on the concern of their flat tires and offer any

assistance.” Henderson also “radioed in to dispatch [his] location and that [he

would] be out to assist a motorist with a flat tire.” Henderson stated that the flat

tires raised safety concerns:

            Safety concerns to the driver, any occupants of the vehicle,
      and also the general public. If that driver loses control of the vehicle
      because of the two flat tires, you know, he’s not going to be able to
      control the vehicle safely and possibly cause either property damage
      or physical harm to anybody in the area.

He further believed that it was unsafe to drive on two flat tires: “When a vehicle

has a flat tire, it affects the safety of the vehicle, controlling steering, braking, and

just overall control of the vehicle. Makes it more difficult to safely maneuver on

the roadway.”


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      As he approached the car, Henderson confirmed that the car had two flat

tires, and he smelled the strong odor of burning tire rubber. Henderson asked

the driver, Dearmond, if he knew he had two flat tires, and Dearmond said that

he had only one flat tire. Henderson saw that Dearmond’s eyes were glassy and

dilated.   Dearmond admitted to Henderson that he had drunk “a couple” of

“whiskey[s]” that night. When Henderson asked Dearmond to get out of his car,

Dearmond was unsteady on his feet and had no shoes on.               Dearmond’s

performance on the field-sobriety tests caused Henderson to conclude that

Dearmond had “lost the normal use of his mental and physical faculties by

reason of the introduction of an alcoholic beverage and was therefore,

intoxicated.”   Henderson then placed him in handcuffs and arrested him for

driving while intoxicated.   A search of Dearmond’s car revealed a “partially

consumed” bottle of whiskey. Dearmond did not consent to a breath test, and a

magistrate issued a search warrant for Dearmond’s blood and, later, an arrest

warrant. See Tex. Code Crim. Proc. Ann. art. 15.03 (West 2015), art. 18.01

(West Supp. 2015). Dearmond’s blood-alcohol content was 0.271, and he was

charged by information with the Class A misdemeanor offense of driving while

intoxicated. See Tex. Penal Code Ann. § 49.04(a), (d) (West Supp. 2015).

      Dearmond filed a pretrial motion to suppress any evidence that was the

result of the stop, including his field-sobriety tests and the blood-test results,

based on “the illegal arrest, detention, and search of [Dearmond] and the search

of the vehicle where the Defendant was arrested.” At the hearing on his motion,


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Dearmond argued that Henderson did not have reasonable suspicion to initially

stop his car because the flat tires did not qualify as an unsafe driving condition

equating to an offense. He further challenged the applicability of the community-

caretaking justification.    Henderson was the only witness at the hearing and

testified to the facts leading to Henderson’s initial stop. A video of Henderson’s

stop and subsequent investigation showed that Dearmond’s car had at least one

flat tire on the driver’s side of the car.1 After considering Henderson’s testimony

and the video, the trial court denied the motion and entered findings of fact and

conclusions of law.         The trial court concluded that the State established

reasonable suspicion based on specific articulable facts, combined with rational

inferences derived from those facts, that “defendant committed the offense

defined in Transportation Code Sec. 547.004.” The trial court also concluded

that the stop was justified under law enforcement’s community-caretaking

function because the totality of the circumstances would lead a reasonable

person to believe that Dearmond was in need of help.

      Dearmond then pleaded nolo contendere to the information, and the trial

court assessed his punishment at 320 days’ confinement, the imposition of which

was suspended, and placed him on community supervision for 20 months.

Dearmond appeals the denial of his pretrial motion to suppress. See Tex. Code

      1
        Henderson told Dearmond that he had two flat tires when he approached
the car, but the camera angle on the video shows only the front driver’s tire,
which was flat. Henderson testified, and the trial court found, that both of the
driver’s side tires were flat.


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Crim. Proc. Ann. art. 44.02 (West 2006); Tex. R. App. P. 25.2(a)(2)(A).

Dearmond argues on appeal, as he did in the trial court, that Henderson did not

have specific, articulable facts providing reasonable suspicion to initially stop his

car and that Henderson’s stop cannot be justified under the community-

caretaking function.

                              II. APPLICABLE LAW

                             A. STANDARD OF REVIEW

      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). 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. Id.; 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).

                            B. REASONABLE SUSPICION

      A detention, as opposed to an arrest, may be justified on less than

probable cause if a person is reasonably suspected of criminal activity based on

specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880

(1968).   An officer conducts a lawful temporary detention when he has

reasonable suspicion to believe that an individual is violating the law. Crain v.

State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010). Reasonable suspicion exists


                                         5
when, based on the totality of the circumstances, the officer has specific,

articulable facts that when combined with rational inferences from those facts

would lead him to objectively and reasonably conclude that a particular person is,

has been, or soon will be engaged in criminal activity. Ford v. State, 158 S.W.3d

488, 492 (Tex. Crim. App. 2005).

                            C. COMMUNITY CARETAKING

      Additionally, a detention may be reasonable—consistent with the Fourth

Amendment—under law enforcement’s community-caretaking function, which is

“totally divorced from the detection, investigation, or acquisition of evidence

relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433,

441, 99 S. Ct. 2523, 2528 (1973); see also Wright v. State, 7 S.W.3d 148, 151–

52 (Tex. Crim. App. 1999); Hernandez v. State, 376 S.W.3d 863, 873–74 (Tex.

App.—Fort Worth 2012, no pet.).         This function may be invoked to justify a

detention if (1) the officer was primarily and subjectively motivated by a

community-caretaking purpose and (2) the officer’s belief that the individual

needed help was objectively reasonable. Gonzales v. State, 369 S.W.3d 851,

854–55 (Tex. Crim. App. 2012). The reasonableness of the officer’s belief, in

turn, is determined by considering (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. Id. at 855.


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                                 III. DISCUSSION

                           A. COMMUNITY CARETAKING

      Henderson testified that he stopped Dearmond to “check [his] welfare on

the concern of [his] flat tires and offer any assistance.”              Indeed, he

communicated to the dispatch officer that he was going to “assist a motorist with

a flat tire.” This testimony clearly shows that Henderson’s primary motivation

was community caretaking, as implicitly found by the trial court, which would

justify the stop if his belief that Dearmond needed assistance was objectively

reasonable.

      Although Dearmond did not personally indicate to Henderson that he was

in distress or needed help, a reasonable person would have believed that the

driver of a car with two flat tires would need help. See id. at 856; Lebron v. State,

35 S.W.3d 774, 776 (Tex. App.—Texarkana 2001, pet. ref’d). The condition of

Dearmond’s car provided an indication that he was in distress. Lollie v. State,

465 S.W.3d 312, 316 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

Henderson further testified that the residential area was deserted when he saw

Dearmond, with only one other car in the street, and no other people in the area;

thus, Dearmond was in an isolated location late at night that offered him few,

alternative sources of help.       See Gonzales, 369 S.W.3d at 856; Lollie,

465 S.W.3d at 317. Finally, the facts show that Dearmond was a danger to

himself. Although there was only one other car on the road and no people in the




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area, Dearmond’s two flat tires presented a danger to his safety on the road.

See Lollie, 465 S.W.3d at 318; Lebron, 35 S.W.3d at 777.

      Based on the totality of the circumstances, the evidence supports the trial

court’s conclusion that Henderson subjectively believed he was acting in his

community-caretaking function by initiating a stop of Dearmond’s car. These

facts further reveal that this subjective belief was objectively reasonable because

there were sufficient indicia of distress at the time Henderson stopped

Dearmond’s car: Dearmond was in an isolated location with no ready access to

help and presented a danger to himself. Thus, the stop was justified under the

community-caretaking exception. See Lollie, 465 S.W.3d at 315–18; Goains v.

State, No. 02-03-070-CR, 2004 WL 2712106, at *2–3 (Tex. App.—Fort Worth

Nov. 24, 2004, no pet.) (mem. op., not designated for publication).

                           B. REASONABLE SUSPICION2

      The transportation code provides that a person commits an offense if he

operates a vehicle that “is unsafe so as to endanger a person.” Tex. Transp.

Code Ann. § 547.004(a)(1) (West 2011). The trial court recognized in its findings

that Henderson “believed driving on a flat tire to be unsafe because the driver of

a vehicle with flat tires cannot properly control his vehicle,” which “could be


      2
        Although the community-caretaking function alone was sufficient to justify
Henderson’s initial detention of Dearmond even in the absence of reasonable
suspicion, we address reasonable suspicion because the trial court entered a
conclusion of law regarding reasonable suspicion and because Dearmond
specifically attacks this conclusion in his brief.


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unsafe for the driver of the vehicle and unsafe for other vehicles, pedestrians,

and others in the area.” Based on these findings of historical fact, the trial court

concluded that Henderson had reasonable suspicion to stop and temporarily

detain Dearmond because there were specific, articulable facts allowing

Henderson to reasonably and objectively conclude that Dearmond was

committing an offense, specifically that he was violating transportation code

section 547.004.

      Dearmond’s driving his car with two flat tires met the elements of section

547.004. See Kennedy v. State, No. 13-12-00668-CR, 2014 WL 1266344, at *3

(Tex. App.—Corpus Christi Jan. 23, 2014, no pet.) (mem. op., not designated for

publication). The facts as found by the trial court and supported by the evidence

adduced at the hearing, which we defer to, revealed that driving on two flat tires

was unsafe for the driver because such a car is difficult to control. As such,

Dearmond was operating his car in an unsafe manner so as to endanger a

person under section 547.004. The trial court correctly applied the law to the

facts by concluding that Henderson had reasonable suspicion to initially stop

Dearmond. See Castillanos v. State, Nos. 05-08-00155-CR, 05-08-00156-CR,

2009 WL 1637039, at *3–4 (Tex. App.—Dallas June 12, 2009, no pet.) (mem.

op., not designated for publication); Carrillo v. State, 235 S.W.3d 353, 358 (Tex.

App.—Texarkana 2007, pet. ref’d); State v. Kloecker, 939 S.W.2d 209, 210 (Tex.

App.—Houston [1st Dist.] 1997, no pet.).




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                              IV. CONCLUSION

      Because the totality of the circumstances supported the trial court’s

conclusions that Henderson had reasonable suspicion to initially stop Dearmond

and that the stop was justified under the community-caretaking function, we

overrule Dearmond’s issue and affirm the trial court’s denial of Dearmond’s

motion to suppress. See Tex. R. App. P. 43.2(a).


                                                   /s/ Lee Gabriel

                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: March 3, 2016




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