                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00030-CR


CARLOS HERNANDEZ                                                      APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

       FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY

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                                    OPINION
                                      ----------

                                   Introduction

      After the trial court denied his motion to suppress, Appellant Carlos

Hernandez negotiated a plea bargain with the State and pled guilty to driving

while intoxicated (DWI). He reserved his right to appeal the trial court’s ruling on

his motion to suppress and now contends that the trial court erred by concluding

that his detention by police passed constitutional muster and that a lost reporter’s
record is not necessary to resolve this appeal.      Because we agree with this

second point, we reverse.

                  Background Facts and Procedural History

      Patrolling by an otherwise empty strip mall parking lot sometime after 2:00

a.m., Flower Mound Police Officer James Wickham noticed a black BMW parked

in the lot with its headlights on, left turn signal flashing, and driver’s side door

open. Initially concerned that the driver may have suffered an injury or needed

help, Wickham pulled in just as the car was backing from the space where

Wickham had first seen it.

      No lights were on at any of the businesses in the parking lot and the area

was generally poorly lit. Wickham shined a spotlight on the BMW’s driver’s side

window. As soon as he did that, Appellant pulled the car forward and jerked it to

a stop, which caused his head to slam against the steering wheel.

      Wickham parked and exited his patrol car. He approached Appellant and

asked him what he was doing. Wickham immediately noticed Appellant’s red

eyes and the odor of an alcoholic beverage emanating from the car. Wickham

began a DWI investigation, which led to Appellant’s arrest and charges for that

offense.

      Appellant filed a motion to suppress, challenging all evidence obtained as

a result of the stop. At a hearing on Appellant’s motion, the State stipulated that

Wickham had arrested Appellant without a warrant, and the State called

Wickham as its only witness. Appellant presented no evidence at this hearing.


                                         2
The trial court denied Appellant’s motion to suppress but granted his request for

written findings of fact and conclusions of law.

      The trial court concluded that Wickham’s and Appellant’s initial exchange

was not a detention under the Fourth Amendment but rather a voluntary

encounter during which Wickham formed reasonable suspicion to detain and

investigate Appellant for DWI after observing signs that he was intoxicated. The

trial court also concluded in the alternative that the stop was supported by either

reasonable suspicion or under the community-caretaking exception.

      Appellant moved for a rehearing on his motion to suppress, contesting the

trial court’s conclusions that the stop was either a voluntary encounter or based

on reasonable suspicion, neither of which had been litigated during the first

hearing. The trial court granted a second hearing, after which it again denied the

motion to suppress and issued a second set of written findings of fact and

conclusions of law.

      In its second set of findings of fact and conclusions of law, the trial court

omitted its conclusion that Appellant had been detained on reasonable suspicion

and concluded that the exchange with Wickham had been either a voluntary

encounter––and thus not a seizure under the Fourth Amendment––or that the

community-caretaking exception applied.

      Appellant reserved the right to appeal the trial court’s ruling on his motion

to suppress and negotiated a plea bargain with the State, under the terms of

which he pled guilty to Class B misdemeanor DWI in exchange for 160 days in


                                         3
jail, probated for eighteen months, and a $600 fine.       Appellant timely filed a

notice of appeal.

      We soon learned of a problem with the reporter’s record.            The court

reporter informed us that the notes of the second suppression hearing had been

taken by a substitute reporter who had since retired and moved out of state, and

that those notes were missing.      We abated the appeal for the trial court to

determine whether the record of the second hearing had been lost, and if so,

whether the lost record is necessary to the resolution of the appeal, and also

whether the parties could agree on a complete record. The trial court found that

the reporter’s notes had been lost or destroyed, that the parties could not agree

on a complete record, and that the lost portion is unnecessary to the resolution of

the appeal.1

                                Points on Appeal

      In his first point, Appellant contends that the trial court should have granted

his motion to suppress because Wickham did not have a warrant or a proper

exception to the warrant requirement to approach and detain him in the parking

lot. In his second point, he contends that the trial court erred by finding that the

lost record of the second hearing is unnecessary to the resolution of this appeal.

      1
       In a footnote in his brief, Appellant states that “the evidence . . . and
transcript [of the second hearing] were lost by the State.” There is nothing in the
record, however, to support the claim that the State bears any responsibility for
the lost reporter’s record. In fact, the evidence adduced during the abatement
hearing that is now before us in the record from that proceeding negates the
assertion.


                                         4
      The State argues that Appellant forfeited the second point by not objecting

to the findings of fact and conclusions of law in the trial court. But as we read

Appellant’s second point, he contends that the trial court erred by finding that the

lost record is not necessary to the resolution of this appeal. This particular claim

did not arise until after the trial court determined that the record was both lost and

unnecessary to the appeal. Those determinations were not made until the end of

the abatement hearing.        The record of that hearing reflects that Appellant

effectively brought the issue to the trial court’s attention:

             MR. LASSITER [for Appellant]: Judge, I am still a little bit
      confused here. How am I supposed to write an appeal based on
      findings of fact and conclusions of law that do not contain hardly any
      of what occurred in that hearing? How am I supposed to write an
      accurate record for appeal if the only record that I have is the record
      that we had to do another record in order to complete––in order to
      fix the original record? We have to do another record?

             THE COURT: Well, that can be a good argument to the Court
      of Appeals, if that’s what you want to do, you can’t do it because
      there is no record. All right.

      Court reporters in this state do outstanding work and lost records,

thankfully, are extremely rare. Somewhat novel situations, such as this, do not

lend themselves to rote error preservation. Appellant sufficiently alerted the trial

court to his complaint as soon as the basis for it became apparent. See, e.g.,

Tex. R. Evid. 103(a)(1); Lovill v. State, 319 S.W.3d 687, 692 (Tex. Crim. App.

2009); Resendez v. State, 306 S.W.3d 308, 312–13 (Tex. Crim. App. 2009);

Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App.), cert. denied, 522 U.S.

917 (1997); Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).


                                           5
                               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); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

      First, we view the evidence in the light most favorable to the trial court’s

ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State v. Kelly,

204 S.W.3d 808, 818 (Tex. Crim. App. 2006). 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. Wiede, 214 S.W.3d 17, at 24–25; State v. Ross, 32 S.W.3d 853, 855

(Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006).        We do not engage in our own factual

review, but give almost total deference to a trial court’s express or implied

determination of historical facts, especially if those are based on the trial court’s

assessment of credibility and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex.

Crim. App. 2010); State v. Garcia–Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App.

2008); St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007);

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State,

118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). When the trial court

makes explicit fact findings, as the trial court did in this case, we determine

whether the evidence, when viewed in the light most favorable to the trial court’s

ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.




                                         6
      Next, we review the trial court’s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 818. We must uphold the trial court’s ruling if it is supported by the record

and correct under any theory of law applicable to the case even if the trial court

gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740

(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim.

App. 2003), cert. denied, 541 U.S. 974 (2004).

         The Trial Court’s Findings of Fact and Conclusions of Law

      In its first set of findings of fact and conclusions of law, the trial court had

concluded that the initial exchange between Wickham and Appellant was a

voluntary encounter––not a detention or seizure under the Fourth Amendment––

that progressed into an investigative detention supported by reasonable

suspicion when Wickham observed signs that Appellant was intoxicated. The

trial court concluded in the alternative that if the encounter was a seizure under

the Fourth Amendment, it was a proper one because Wickham had reasonable

suspicion that Appellant might have been in the parking lot for some criminal

purpose or because Wickham had properly exercised his community-caretaking

function. In its second set of findings and conclusions, the trial court dropped the

theory that the stop was based on reasonable suspicion but kept its alternative

conclusions that the encounter either was consensual or that the community

caretaking exception applied.




                                          7
                              Reasonable Suspicion

      As an initial matter, we agree with the trial court’s having abandoned its

conclusion that the encounter was based on reasonable suspicion.

      An investigative detention is a “seizure” for purposes of the Fourth

Amendment. Alexander v. State, 879 S.W.2d 338, 341 (Tex. App.––Houston

[14th Dist.] 1994, pet. ref’d), cert. denied, 514 U.S. 1127 (1995), (citing Livingston

v. State, 739 S.W.2d 311, 327 (Tex. Crim. App. 1987), cert. denied, 487 U.S.

1210 (1988)). As opposed to an arrest, a detention 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); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An

officer conducts a lawful temporary detention when he or she has reasonable

suspicion to believe that an individual is violating the law. Crain, 315 S.W.3d at

52; Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable

suspicion exists 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 reasonably conclude that a particular person is, has

been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This

is an objective standard that disregards any subjective intent of the officer

making the stop and looks solely to whether there exists an objective basis for

the stop.   Id.   The facts relied upon to support a conclusion of reasonable

suspicion must amount to something more than an inchoate and general


                                          8
suspicion or hunch. Terry, 392 U.S. at 21, 88. S. Ct. at 1880; Woods v. State,

956 S.W.2d 33, 35 (Tex. Crim. App. 1997).

      The State argues and the trial court initially concluded that Wickham had

reasonable suspicion to detain Appellant. Specifically, the trial court originally

concluded that

      Officer Wickham had reasonable suspicion under the totality of the
      circumstances to detain the Defendant to investigate whether the
      Defendant was involved in some type of criminal mischief. Based on
      specific articulable facts and rational inferences from those facts,
      reasonable suspicion existed to believe that the Defendant may be
      involved in a burglary or other criminal undertakings.

      In its findings issued after the first suppression hearing, the trial court

found that sometime after 2:00 a.m., when no businesses were open, Wickham

had observed a black BMW parked in an empty parking lot with its headlights

and left turn signal illuminated and driver’s side door open; and that Wickham

had pulled into the lot due to the time of night, the location of the BMW, the

headlights and left turn signal on and the door open, and the “potential for

burglaries in that area.”

      The evidence in the record of the first hearing supports all these findings

but one: we have found no evidence indicating any “potential for burglaries” in

the area. Officer Wickham was the only witness at that first hearing. He testified

that upon seeing Appellant’s car with lights and blinker on and door open, his

“initial thought was perhaps [Appellant] may be injured . . . needed help or

something,” but that he “also was curious or wondering about maybe a possible



                                        9
break-in or that kind of thing with the businesses in the area being closed.” He

further testified that he pulled in to investigate “for any number of things that

could have been wrong” including “breaking into buildings.”

      But apart from his guessing what, if anything, Appellant might have been

up to, he did not articulate any specific facts that when combined with their

rational inferences would have lead him to reasonably conclude that Appellant

was, had been, or was about to engage in criminal activity.           See Ford, 158

S.W.3d at 492.     Wickham’s curiosity or “wondering about maybe a possible

break-in” amounts to nothing more than an inchoate and general suspicion or

hunch. See Terry, 392 U.S. at 21, 88. S. Ct. at 1880; Woods, 956 S.W.2d at 35.

That is not enough. Cf. Derichsweiler v. State, 348 S.W.3d 906, 917 (Tex. Crim.

App.) (stating “[i]t is enough to satisfy” the reasonable suspicion standard “that

the information is sufficiently detailed and reliable––i.e., it supports more than an

inarticulate hunch or intuition.”), cert. denied, 132 S. Ct. 150 (2011); State v.

Lopez, 148 S.W.3d 586, 589–90 (Tex. App.––Fort Worth 2004, pet. ref’d)

(holding that reasonable suspicion existed to believe appellee’s truck might have

been involved in burglary based on facts that burglary had just occurred,

complainants had noticed the truck slowly drive by their residence—the scene of

the crime—several times that evening, and officer saw appellee drive slowly past

the residence and knew that burglars commonly return to crime scenes where

they had been successful.) Accordingly, we hold that even in the light most

favorable to the trial court’s ruling, the record of the first hearing does not support


                                          10
a conclusion that reasonable suspicion justified Appellant’s detention. The trial

court, therefore, correctly omitted this theory from its second set of conclusions.

                              Voluntary Encounter

      We also agree with the trial court that Wickham needed no justification to

pull into the parking lot, observe Appellant, and even approach and speak to him.

Police officers are as free as any other citizen to approach citizens on the street

or in their cars and to ask for information or their cooperation. Garcia–Cantu,

253 S.W.3d at 243.

      Police officers may be as aggressive as the pushy Fuller-brush man
      at the front door, the insistent panhandler on the street, or the
      grimacing street-corner car-window squeegee man. All of these
      social interactions may involve embarrassment and inconvenience,
      but they do not involve official coercion. It is only when the police
      officer “engages in conduct which a reasonable man would view as
      threatening or offensive even if performed by another private
      citizen,” does such an encounter become a seizure. It is the display
      of official authority and the implication that this authority cannot be
      ignored, avoided, or terminated, that results in a Fourth Amendment
      seizure. At bottom, the issue is whether the surroundings and the
      words or actions of the officer and his associates communicate the
      message of “We Who Must Be Obeyed.”

Id.

      The mere approach and questioning of such persons does not
      constitute a seizure. The result is not otherwise when the officer
      utilizes some generally accepted means of gaining the attention of
      the vehicle occupant or encouraging him to eliminate any barrier to
      conversation. The officer may tap on the window and perhaps even
      open the door if the occupant is asleep. A request that the suspect
      open the door or roll down the window would seem equally
      permissible, but the same would not be true of an order that he do
      so. Likewise, the encounter becomes a seizure if the officer orders
      the suspect to “freeze” or to get out of the car. So too, other police
      action which one would not expect if the encounter was between two


                                         11
      private citizens—boxing the car in, approaching it on all sides by
      many officers, pointing a gun at the suspect and ordering him to
      place his hands on the steering wheel, or use of flashing lights as a
      show of authority—will likely convert the event into a Fourth
      Amendment seizure.

Id. (quoting 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment § 9(a) (4th ed. 2004) (internal footnotes omitted)).

      We further agree with the trial court and with the State that once Wickham

noticed signs of intoxication, he had reasonable suspicion under the totality of the

circumstances to detain Appellant to investigate whether he was DWI. See, e.g.,

Franks v. State, 241 S.W.3d 135, 142 (Tex. App.––Austin 2007, pet. ref’d.)

(holding that initial encounter progressed to investigative detention when officer

refused appellant’s request to leave).

      But Wickham did not notice the signs of intoxication until after he had

shined his spotlight on Appellant’s driver’s side window.      The question for a

Fourth Amendment analysis is what was in between––that is, at what point did

the encounter become a detention? More precisely: Did the encounter become

a detention when Wickham employed his spot light and Appellant stopped in

response?

      A detention occurs when a person yields to an officer’s show of authority or

when a reasonable person would not feel free to decline the officer’s requests or

otherwise terminate the encounter. Florida v. Bostick, 501 U.S. 429, 436, 111 S.

Ct. 2382, 2387 (1991); California v. Hodari D., 499 U.S. 621, 629, 111 S. Ct.

1547, 1552 (1991); State v. Velasquez, 994 S.W.2d 676, 678–79 (Tex. Crim.


                                         12
App. 1999); Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995);

Martin v. State, 104 S.W.3d 298, 300–01 (Tex. App.––El Paso 2003, no pet.).

Two essential elements are thus required before a police-citizen encounter

becomes a detention and therefore a seizure under the Fourth Amendment: a

show of authority and a submission––an officer must make a show of authority to

which a citizen yields. The second element is met in this case because the

record shows that Appellant yielded: Wickham testified that Appellant abruptly

returned his car to its parking space when Wickham shined the spotlight on the

window.

      The question of when an encounter between a police officer and a person

in a car is a “detention” or “seizure” depends on specific facts as to the manner of

the encounter, the degree of authority displayed, and all other circumstances

surrounding the incident. Garcia–Cantu, 253 S.W.3d at 244. In Garcia–Cantu,

the court of criminal appeals distinguished the use of a patrol car spotlight from

use of its emergency lights. Garcia–Cantu, 253 S.W.3d at 245; see Crain, 315

S.W.3d at 50. Considering numerous cases throughout the nation, the court

noted that, while emergency lights are often involved in detention scenarios,

spotlight use is often classified as necessary during police-citizen encounters and

its use will not necessarily convert an encounter into an investigatory detention.

Garcia–Cantu, 253 S.W.3d at 245; see Crain, 315 S.W.3d at 50; Franks, 241

S.W.3d at 142 (“Use of the patrol car’s overhead lights in an area that appeared

dark and unoccupied except for a single car does not necessarily constitute a


                                        13
detention.”); Martin, 104 S.W.3d at 301 (concluding that officer’s use of overhead

lights did not necessarily cause encounter to become stop).

      Each citizen-police encounter must be factually evaluated on its own

terms; there are no per se rules. Garcia–Cantu, 253 S.W.3d at 243. The test is

necessarily imprecise, because it is designed to assess the coercive effect of

police conduct, taken as a whole, rather than to focus on particular details of that

conduct in isolation. Id. (citing Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.

Ct. 1975, 1979 (1988)).

      In determining whether a reasonable person would have felt free to leave,

we look at the officer’s conduct as well as the setting in which the police-citizen

interaction takes place. Crain, 315 S.W.3d at 51; Garcia–Cantu, 253 S.W.3d at

244; see United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870 (1980)

(one factor to consider in determining if the interaction was a detention is “the

use of the language or tone of voice indicating that compliance with the officer’s

request might be compelled”); Orhorhaghe v. I.N.S., 38 F.3d 488, 495–96 (9th

Cir. 1994) (finding a Fourth Amendment seizure had occurred when the tenor of

the instructions the agent gave the citizen was not that used among citizens in

everyday interaction, but instead was “authoritative and appeared to give

[defendant] no option to refuse to comply.”).

      The court of criminal appeals has explained that, although using the

spotlight alone is not enough to lead a reasonable person to think he is not free

to go, use of the spotlight is a factor to be considered in the totality-of-the-


                                        14
circumstances assessment and, “combined with other circumstances, may well

establish a Fourth Amendment detention.” Crain, 315 S.W.3d at 51; Garcia–

Cantu, 253 S.W.3d at 245; see e.g., State v. Jestice, 861 A.2d 1060, 1062–63

(Vt. 2004) (finding a detention implicating the Fourth Amendment where a

uniformed officer parked his marked patrol car late at night in a dark lot with no

one else around, left the cruiser’s headlights shining in the detained couple’s

faces as he approached them, and asked them what they were doing).

      Appellant contends that given other factors in this case combined with the

use of the spotlight, no reasonable person in his position would have felt free to

leave. He asserts that as soon as he began backing from his parking space to

leave the location, Wickham shined an intensely bright police spotlight directly at

him from a marked patrol car coming up from behind and obstructing his

movement by blocking a path of egress. And he claims that the lost record of the

second hearing reflects that Wickham “parked behind and to the right of [him]

partially blocking his ability to back out of the space.” He also claims that the lost

record also reflects that Wickham “turned on his dashboard camera showing he

approached [Appellant] with the intent of doing an investigation” and that

Wickham approached him “in uniform” and “demanded to know ‘what are you

doing’” in a voice that was “commanding” and “authoritative.”2


      2
       Appellant’s counsel asserted during oral argument,

      And when the officer got out, he displayed a show of authority: he
      had a uniform, he had a badge, he had a gun, he had a flashlight, he

                                         15
      In its second set of findings the trial court found that “Wickham stopped

and parked his patrol vehicle to the left of and perpendicular to” Appellant’s car

and that Appellant “could have easily and safely backed out of the parking spot

and driven away.” The only record before us today, however, does not reveal the

position of Wickham’s patrol car relative to Appellant’s BMW. Nor does it, for that

matter, indicate that the patrol car was marked or that Wickham was armed or

even in uniform when he approached Appellant.          Those may be reasonable

assumptions one can make, but the record is silent on whether they are factual.

The record likewise does not speak to whether Wickham activated his in-car

video recorder, and although Appellant’s counsel advised us during oral

argument that he had a copy of the DVD recorded during the stop, we have no

record indicating that it was ever admitted or even offered in evidence.

      In short, because even in the light most favorable to the trial court’s ruling

the record that we have does so little to illuminate the critical issue of whether a

reasonable person would have felt free to ignore Wickham’s spot-lit approach,

we cannot say that it supports the trial court’s conclusion that Wickham’s and

Appellant’s late-night encounter was consensual and thus did not offend the

Fourth Amendment.




      was in a marked patrol car, he vocalized his command by saying
      ‘what are you doing here?’ He did so in an authoritative tone of
      voice. Now, you don’t have that information in front of you because
      that was at the second hearing.


                                        16
      But even if the record does not support the trial court’s ruling based on a

voluntary encounter, it will be upheld if correct for any reason. In this case, there

is one remaining candidate, one that the trial court relied upon as an alternative

theory in both sets of conclusions of law issued after each hearing.

                             Community Caretaking

      In both its conclusions of law, the trial court concluded in the alternative

that Appellant’s detention had been a proper exercise of Wickham’s community

caretaking function.

      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, 93 S. Ct. 2523, 2528 (1973);

Wright v. State, 7 S.W.3d 148, 151–52 (Tex. Crim. App. 1999). Even without

having 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 v. State, 85 S.W.3d 272,

276 (Tex. Crim. App. 2002); see Wright, 7 S.W.3d at 151–52; see also United

States v. King, 990 F.2d 1552, 1560 (10th Cir. 1993). 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 (emphasis added).




                                         17
      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, 93 S. Ct. at 2528; Corbin, 85 S.W.3d

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. See Wright, 7 S.W.3d at 151. (“[W]e must determine if [the officer]

acted reasonably when he stopped the vehicle out of concern for the welfare of

the appellant . . .”.) (emphasis added).        Professor LaFave explains, “[I]t

apparently remains open to defendants, whenever the challenged seizure or

search is permitted without probable cause because of the special purpose being

served, to establish a Fourth Amendment violation by showing the action was in

fact undertaken for some other purpose . . .”. Corbin, 85 S.W.3d at 277 (citing

Search and Seizure § 1.4 (3d ed. 1996)).

      Here, the record reflects that Wickham was concerned that Appellant may

have been injured, had medical problems––possibly diabetes or diabetic shock––

needed help and, as previously discussed, “also was curious or wondering about

maybe a possible break-in or that kind of thing.”3 Although the record reflects

that Wickham had a number of motivations for checking on Appellant, the trial

court, as the exclusive judge of credibility and finder of fact, could have


      3
        Wickham testified that in his offense report he wrote “investigative stop”
as the reason for the stop despite the form report’s listing “welfare concern” as a
distinct category of reasons for a stop.


                                        18
concluded that Wickham was primarily motivated by community-caretaking

concerns. See Corbin, 85 S.W.3d at 277; Ross, 32 S.W.3d at 855.

      Once it is determined that an officer is primarily motivated by his

community caretaking function, it must then be determined 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 and/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 that is exhibited, the more likely

that 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 distress that is exhibited

may be seen as more or less serious depending on the presence or absence of

the remaining three factors. Id.


                                           19
      Here, evidence of the first factor, the nature and level of the distress

exhibited, is almost nonexistent because Wickham specifically testified that he

did not observe Appellant in any distress all though he felt like there might have

been. The record reflects the following:

             Q. [by Defense counsel] . . . [Y]ou didn’t observe any type of
      distress?

            A. Correct. I didn’t observe any type of distress.

           Q. Throughout this entire process, you never observed Mr.
      Hernandez in any type of distress, correct?

            A. Correct.

             Q. Okay. Now, you said that you were concerned that he was
      injured and needed help, initially, but those were dispelled pretty
      quickly, correct?

            A. Yes, sir.

            Q. Those thoughts. All right. You mentioned that he roughly
      applied the brakes and hit his head. He didn’t have a mark on his
      forehead after that, did he?

            A. Not that I observed, no sir.

            Q. So there was nothing medically wrong from him bumping
      his head?

            A. Not that I’m aware of.

      On redirect, the prosecutor asked Wickham if he felt that Appellant’s hitting

his head on the steering wheel was “distress.”

            Q. Okay. Did you feel like there was distress when you saw
      the defendant hit his head on the steering wheel or there could be?




                                        20
            A. Yes, ma’am, but I didn’t know what was going on, if maybe
      he was having a medical emergency and had lost normal use of his
      physical faculties or.

             MS. LASETER [for the State]: Pass the witness.

      Seeing a driver bump his head on the steering wheel could suggest some

level of distress. But the trial court found that Wickham did not see Appellant

bump his head until after Wickham had pulled into the parking lot and shined his

spotlight on Appellant’s driver side window. This finding is supported by the

record. The record reflects that Appellant pulled forward and braked suddenly

after (and possibly in response to) Wickham directed the spot light at him.

Wickham testified on direct as follows:

             Q. Did the vehicle move at all once you pulled into the parking
      lot?

             A. Yes, ma’am, as I pulled in the parking lot, I observed the
      vehicle back out of its spot where it was parked. I then turned on my
      spotlight, shined it in the driver’s side window to see who was inside.
      When I did that, the vehicle pulled back into the parking spot and
      stopped. [Emphasis added.]

      Wickham also testified, “As he backed out and I turned on the spotlight and

he went to pull back in, I observed they [sic] abruptly applied their [sic] brakes

and when he did so, he did it with such force he hit his head on the steering

wheel.” On cross examination, Wickham testified that he assumed that Appellant

abruptly pulled back into the parking space in response to Wickham’s shining the

spotlight on him. He further testified that if Appellant had not seen him, Appellant

would have continued to drive on. So whatever evidence there is in the record



                                          21
that Appellant exhibited any level of distress did not arise until after Wickham

approached Appellant and shined his spotlight on him. In other words, Wickham

caused the distress that the State now argues justified Appellant’s warrantless

detention through the community caretaking exception.

      Further, the level of distress reflected by the record, to the extent that it

exists at all, is extremely low: the bump on the steering wheel was not hard

enough to leave a mark:

             Q. [. . .] You mentioned that he roughly applied the brakes and
      hit his head. He didn’t have a mark on his forehead after that, did
      he?

            A. Not that I observed, no sir.

           Q. So there was nothing medically wrong from him bumping his
      head?

            A. Not that I’m aware of.

      Nor, was the level of distress serious enough for Wickham to ask whether

Appellant was okay or whether he needed assistance, as the following excerpt

shows:

            Q. Okay. And then you approach, and the first thing that you
      ask them [sic] once you approach was, what are you doing, correct?

            A. Yes, sir.

            Q. You did not ask [Appellant] are you okay, correct?

            A. Yes, sir.

            Q. You did not ask him, do you need help, correct?

            A. Correct.


                                        22
             Q. You didn’t ask him if he needed assistance?

             A. Correct.

           Q. You didn’t ask him if there was any medical concern
      whatsoever, correct? You asked him, [“]What are you doing?[“]

             A. Yes, sir.

      Because the evidence of any distress is extremely low and was caused by

Wickham’s intervention, this factor weighs against the trial court’s conclusion that

Wickham’s detention of Appellant was justified by the community caretaking

exception.

      Concerning the second factor, the location was in a car in an empty

business parking lot. Although Appellant was there late at night, nothing in the

record indicates that Appellant was stranded there or that the area was isolated

or dangerous. At best, this is a neutral factor. See Corbin, 85 S.W.3d at 278.

      The third factor also is neutral. Although Appellant was alone in the car

when Wickham first saw him, there was testimony that he had called someone to

come pick him up.      Of course, Wickham would not have known this before

Appellant told him, so this factor––whether Appellant had access to assistance

independent of Officer Wickham––works neither against nor for the stop.

      The fourth factor, the extent to which the individual presented a danger to

himself or to others if not assisted, weighs against the stop’s justification under

the community caretaking exception. The record shows that Appellant did not

present a threat to anyone in the parking lot because Wickham testified that there


                                        23
was no one else there. And to the extent the record supports an inference that

Appellant presented any danger to himself, that inference did not arise until after

he yielded to Wickham’s spotlight.

      Applying the Wright factors, we conclude that Officer Wickham’s exercise

of his community caretaking function was not reasonable. Although it certainly

would be reasonable for a police officer to approach an individual who appears to

be injured or having a medical emergency while driving, the level of distress

exhibited here as shown in the record does not reflect such an individual. The

level of distress exhibited by Appellant was simply too minor for Wickham to

reasonably believe that Appellant was injured or in need of assistance.         Cf.

Lebron v. State, 35 S.W.3d 774, 776–77 (Tex. App.––Texarkana 2001, pet. ref’d)

(police officer reasonably exercised community caretaking function when the

officer, responding to a reported accident, discovered the defendant driving very

slowly, eventually coming to a stop on the road, with two flat tires). Accordingly,

we hold that Appellant’s interest in being free from arbitrary government

interference outweighed Officer Wickham’s exercise of his community caretaking

function. U.S. v. Brignoni–Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 2578–79

(1975); King, 990 F.2d at 1560; Corbin, 85 S.W.3d at 278–79; Wright, 7 S.W.3d

at 151–52.




                                        24
                                     Conclusion

      Viewed in the light most favorable to the trial court’s ruling, we hold that the

evidence in the record we have does not reasonably support a conclusion that

Appellant’s initial encounter with law enforcement was justified by either

reasonable suspicion or community caretaking. See Crain, 315 S.W.3d at 48;

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006); Romero, 800

S.W.2d at 543. And the record that is before us is inconclusive on the issue of

whether the initial encounter was a voluntary encounter and therefore not a

detention under the Fourth Amendment.

      But the record also indicates that the trial court considered evidence in the

second hearing germane to Appellant’s first point on appeal that it did not

consider in the first hearing.4 Therefore, because the record suggests that the

issue of voluntary encounter was litigated at the second suppression hearing––

the record from which is lost––we hold that the trial court incorrectly found that

the lost record is not necessary to the resolution of this appeal. We further hold

that because that record may have contained evidence showing that Appellant

was seized in violation of his constitutional rights, the trial court’s incorrect finding

caused Appellant harm. See Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim.

App. 1999). Accordingly, we sustain Appellant’s second point, vacate the denial

      4
      For instance, the trial court made specific findings relative to the
placement of Wickham’s patrol car, which if it blocked in Appellant’s car and
prevented him from leaving, would be critical facts to the issue of whether a
reasonable person would have felt free to leave.


                                           25
of Appellant’s motion to suppress, reverse the judgment, and remand this case

for a new trial. See Tex. R. App. P. 34.6(f); 43.2(d).



                                                    PER CURIAM

PANEL: GABRIEL, WALKER, and MCCOY, JJ.

PUBLISH

DELIVERED: August 2, 2012




                                         26
