                                       In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-18-00274-CR
                               __________________

                     DALE EVRET UMPHREY, Appellant

                                          V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

             On Appeal from the County Court at Law No. 2
                        Jefferson County, Texas
                        Trial Cause No. 316824
__________________________________________________________________

                           MEMORANDUM OPINION

      Dale Evret Umphrey appeals his conviction for driving while intoxicated. See

Tex. Penal Code Ann. § 49.04 (West Supp. 2018). In one issue, Umphrey argues the

trial court erred when it denied his motion to suppress a warrantless search by a state

trooper who detained Umphrey. Umphrey contends the trooper’s stop violated Texas




                                          1
Code of Criminal Procedure article 38.23 and amendments IV and XIV to the United

States Constitution.1 We affirm the trial court’s judgment. 2

                                    Background

      Texas State Trooper Ousman testified as the sole witness during the motion

to suppress hearing. Trooper Ousman testified that on the evening in question, while

on patrol and stopped at a stop sign, she observed Umphrey “belligerently yelling”

at a female passenger in his vehicle and that “[h]e flailed [an] arm.” Although

Trooper Ousman could not hear him, she observed Umphrey “actually facing [the

passenger] and yelling at her.” The trooper drove her patrol car through the

intersection and made a u-turn to get behind him. The trooper then activated her

emergency lights to initiate a traffic stop. Umphrey drove through the intersection

and into a gas station parking lot. The female passenger had exited the car just before

the trooper initiated the traffic stop and was standing on a sidewalk and was crying.


      1
        Amendment IV protects citizens against unlawful searches and seizures,
while amendment XIV affords due process of law. See U.S. CONST. amends. IV,
XIV. Texas Code of Criminal Procedure article 38.23 precludes the admission of
any unlawfully obtained evidence at trial. See Tex. Code Crim. Proc. Ann. art. 38.23
(West 2018).
      2
        Following the trial court’s denial of his motion to suppress, Umphrey
pleaded no contest to the charge. The trial court found Umphrey guilty and sentenced
him to ninety days in the Jefferson County Jail and imposed a $1,000.00 fine,
probated over a one-year period. The trial court’s certification of Umphrey’s right
to appeal explained this case involved a plea bargain, but Umphrey retained the right
to appeal matters raised by written motion and ruled on before trial.
                                           2
Once Umphrey stopped his vehicle, the trooper waved the passenger over to speak

with her.

      The trooper testified that she was investigating a crime, as she “absolutely”

thought Umphrey might have assaulted the passenger. The trooper said she “was

concerned that he was physically abusing his female passenger[,]” or the assault had

already happened or was about to happen. The trooper explained that she had to

speak with the suspect and the victim to determine if criminal activity was afoot. She

testified she decided to stop Umphrey because she “had a genuine concern” about

the potential victim and the situation. Trooper Ousman indicated she stopped the

defendant to both check on the potential victim and address the situation.

      Trooper Ousman testified that as she exited her vehicle and approached

Umphrey, he flung his door open and began to approach her patrol car, so she

directed him back to his vehicle. The trooper described Umphrey’s “whole

demeanor” when getting out of the vehicle as “threatening.” Meanwhile, the

passenger walked to the gas station. 3

      The trooper testified she did not observe Umphrey commit any traffic

violations, but she believed she was “checking the welfare” and engaged in


      3
        The trooper later checked on the female passenger’s welfare by asking if
everything was okay and again noted the woman was crying with makeup running
down her face. This occurred after the trooper made the initial stop.
                                          3
“[c]ommunity caretaking.” The trooper testified that when she made contact with

Umphrey, she immediately noticed a strong odor of alcohol and that he had red,

glassy eyes. According to her affidavit, she performed standardized field sobriety

tests which indicated intoxication. She placed Umphrey in custody and obtained a

warrant for a blood draw.

      Umphrey argued at the hearing that this stop could not be justified by the

community caretaking function. The State countered that the trooper was concerned

about a potential assault after she witnessed a heated exchange between the driver

and the female passenger, followed by the passenger crying on the side of the road.

The State argued that the trooper had reasonable suspicion “a crime may have

occurred or may actually have been occurring.”

      The trial court issued findings of fact and conclusions of law. The trial court

concluded that Trooper Ousman was not justified in stopping Umphrey under the

community caretaking function, but the court concluded the trooper had reasonable

suspicion to justify the investigative stop based on the totality of the circumstances.

The trial court reasoned “Trooper Ousman had an objective basis for suspecting that

[Umphrey] had been, was, or was about to be, engaged in criminal activity[,]”




                                          4
namely assault. 4 The trial court outlined the specific, articulable facts Trooper

Ousman presented that led to her suspicion.

                                 Standard of Review

      We employ a bifurcated standard of review when examining a trial court’s

ruling on a motion to suppress. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim.

App. 2007) (citing Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005));

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Under that

standard, we “give ‘almost total deference to a trial court’s determination of the

historical facts that the record supports especially when the trial court’s fact findings

are based on an evaluation of credibility and demeanor.’” Amador, 221 S.W.3d at

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

Likewise, if the trial court resolves a motion to suppress based on mixed questions

of law and fact, its evaluation of the credibility and demeanor of the witnesses is

given almost total deference. Id. (citing Montanez v. State, 195 S.W.3d 101, 107

(Tex. Crim. App. 2006)). If the trial court’s findings do not depend on the trial

court’s evaluations of the credibility and demeanor of the witnesses or turn on




      4
        On appeal, the State concedes Ousman’s community caretaking function is
not applicable and instead argues that the trooper had reasonable suspicion to detain
Umphrey based on the circumstances.
                                          5
resolving a question of law, we review its ruling using a de novo standard. Id. (citing

Montanez, 195 S.W.3d at 107); Guzman, 955 S.W.2d at 89 (citation omitted).

      Questions of law, such as a trial court’s determination of reasonable suspicion,

to justify detention under the Fourth Amendment, are subject to de novo review.

State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). When, as here,

the trial court makes findings of fact, “we determine whether the evidence, when

viewed in the light most favorable to the court’s ruling, supports those findings.”

Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App. 2013) (citing State v. Kelly,

204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006)).

                                      Analysis

      Umphrey focuses almost entirely on the community caretaking function in his

brief, which the trial court concluded did not apply and the State concedes is

inapplicable in this situation.5 The trial court denied the motion to suppress on the

basis that the officer had reasonable suspicion for the investigative stop due to the

trooper’s concern the driver may have assaulted his female passenger.




      5
        Umphrey focuses on the fact that one of Ousman’s stated motives was
“community caretaking,” but the Texas Court of Criminal Appeals has explained
that “[b]ecause reasonable suspicion is an objective determination,” an officer’s
“motives for conducting the stop were irrelevant to the validity of the stop.” See
Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).
                                        6
      To satisfy the Fourth Amendment, a warrantless detention of a person

amounting to less than a full-blown custodial arrest must be justified by reasonable

suspicion. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011)

(citing United States v. Sokolow, 490 U.S. 1, 7 (1989); Ford, 158 S.W.3d at 492);

see also Terry v. Ohio, 392 U.S. 1, 21 (1968); Carmouche, 10 S.W.3d at 328. The

State does not dispute that Trooper Ousman’s initial detention of Umphrey was

warrantless. Therefore, we must determine if the State met its burden in the motion

to suppress hearing to establish reasonable suspicion justifying the stop. See Ford,

158 S.W.3d at 492 (citations omitted) (explaining that once the defendant shows

police detained him without a warrant, burden shifts to the State to establish

reasonable suspicion for the detention).

      An officer’s temporary detention is lawful if she 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 if the officer has specific,

articulable facts that, when combined with rational inferences from those facts,

would lead [her] to reasonably conclude that a particular person actually is, has been,

or soon will be engaged in criminal activity.” Ford, 158 S.W.3d at 492 (citing Garcia

v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)). This is an objective standard

which disregards the subjective intent of the detaining officer and looks solely to

                                           7
whether there is an objective basis for the stop. Id. (citing Garcia, 43 S.W.3d at 530);

see also Matthews v. State, 431 S.W.3d 596, 603 (Tex. Crim. App. 2014) (citations

omitted). “A reasonable-suspicion determination is made by considering the totality

of the circumstances.” Ford, 158 S.W.3d at 492–93. Articulable facts must be more

than a mere hunch or suspicion. Abney, 394 S.W.3d at 548. This does not require the

State to prove a crime occurred with absolute certainty, rather it “has to carry its

burden of proving that, under the totality of the circumstances, the seizure was

reasonable.” Id.

      Here, we must determine whether the officer had reasonable suspicion that

Umphrey committed assault when she conducted the investigative stop. The Texas

Penal Code provides a person commits an assault if the person:

      (1) intentionally, knowingly, or recklessly causes bodily injury to
      another, including person’s spouse;
      (2) intentionally or knowingly threatens another with imminent bodily
      injury, including the person’s spouse; or
      (3) intentionally or knowingly causes physical contact with another
      when the person knows or should reasonably believe that the other will
      regard the contact as offensive or provocative.

Tex. Penal Code Ann. § 22.01 (West 2019). The trooper averred in her affidavit and

testified in the hearing on the motion to suppress that prior to activating her lights,

she personally observed the driver “belligerently yelling” at his female passenger,

“flailing his arm,” and “at one point actually facing her and yelling at her.” Trooper

                                           8
Ousman also testified during the hearing that she had experience dealing with

domestic violence calls and explained officers “have a duty” in those situations. The

trooper did not observe the driver hit the female passenger, but she testified she was

investigating “[a] possible crime” and was concerned the passenger may have

already been assaulted or was being assaulted. The trooper indicated that in this

situation, she could not have ensured the passenger’s safety without intervening.

      Umphrey focuses on the fact that Trooper Ousman never saw him hit the

passenger and that once the passenger exited the vehicle, she was no longer in any

threat of being hit. An assault does not require that a victim be hit; an assault can be

committed by “intentionally, knowingly, or recklessly” causing “bodily injury to

another,” or by “intentionally or knowingly threaten[ing] another with imminent

bodily injury, including the person’s spouse[.]” See Tex. Penal Code Ann. § 22.01.

Given these facts, an officer could reasonably conclude that an assault had already

occurred or may be in progress. Moreover, the State does not have to prove a crime

occurred, rather it has to establish the detention and seizure were reasonable, which

it did here. See Abney, 394 S.W.3d at 548. The fact that the passenger was no longer

in imminent danger once she exited the vehicle is immaterial to whether the driver

may have already assaulted her.



                                           9
      Trooper Ousman testified to specific, articulable facts supporting her belief a

crime may have occurred or may have been in progress. Particularly, she identified

Umphrey in the vehicle “belligerently yelling” at his female passenger while “facing

her” and that he was “flailing his arm” at her leading Trooper Ousman to become

concerned about a potential assault which led her to initiate the stop. Based on the

totality of the circumstances and taking into consideration the trooper’s experience

and training, along with reasonable inferences from the articulated facts, we

conclude the trooper could have reasonably formed reasonable suspicion to conduct

an investigative stop of Umphrey’s vehicle. See Ford, 158 S.W.3d at 492–93; see

also U.S. v. Cortez, 449 U.S. 411, 419 (1981) (explaining that an officer’s training

may factor into a reasonable-suspicion analysis). This reasonable suspicion justified

the warrantless investigative stop. See Crain, 315 S.W.3d at 52. We overrule

Umphrey’s sole issue.

                                    Conclusion

      The trial court properly denied Umphrey’s motion to suppress, and we affirm

its judgment.

      AFFIRMED.

                                                    _________________________
                                                         CHARLES KREGER
                                                              Justice

                                         10
Submitted on September 16, 2019
Opinion Delivered September 25, 2019
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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