                                                                        ACCEPTED
                                                                    01-14-00628-CR
                                                         FIRST COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                                                                5/6/2015 4:46:40 PM
           No. 01-14-00628-CR                                 CHRISTOPHER PRINE
                                                                             CLERK
                    In the
             Court of Appeals
                   For the
           First District of Texas                FILED IN
                                           1st COURT OF APPEALS
                 At Houston                    HOUSTON, TEXAS
                                5/6/2015 4:46:40 PM
                                           CHRISTOPHER A. PRINE
                 No. 1919049                       Clerk

  In the County Criminal Court at Law No. 14
            Of Harris County, Texas
           

            MANUEL NAVA
                Appellant
                   V.
          THE STATE OF TEXAS
                Appellee
          

        STATE’S APPELLATE BRIEF
          

                                 DEVON ANDERSON
                                 District Attorney
                                 Harris County, Texas

                                 PATRICIA MCLEAN
                                 Assistant District Attorney
                                 Harris County, Texas
                                 mclean_patricia@dao.hctx.net

                                 ABAD SALMAN
                                 Assistant District Attorney
                                 Harris County, Texas

                                 1201 Franklin, Suite 600
                                 Houston, Texas 77002
                                 Tel.: 713/755-5826
                                 FAX No.: 713/755-5809

                                 Counsel for Appellee

ORAL ARGUMENT CONDITIONALLY WAIVED
              STATEMENT REGARDING ORAL ARGUMENT


      Pursuant to TEX. R. APP. P. 39.1, the State waives oral argument because the

briefs in this case adequately address the issues of fact and law to the Court.

However, should the Court desire oral argument, the State requests oral argument.




                                        i
                    IDENTIFICATION OF THE PARTIES

Counsel for the State:

      Devon Anderson—District Attorney of Harris County

      Abad Salman—Assistant District Attorney at trial level

      Patricia McLean—Assistant District Attorney on appeal



Appellant:

      Manuel Nava



Counsel for Appellant:

      Maverick Ray—Defense counsel at trial level and on appeal



Trial Judge:

      Hon. Michael Fields




                                       ii
                                        TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ..................................................i

IDENTIFICATION OF THE PARTIES ................................................................... ii

INDEX OF AUTHORITIES .....................................................................................iv

STATEMENT OF THE CASE................................................................................... 1

STATEMENT OF FACTS ......................................................................................... 2

SUMMARY OF THE ARGUMENT ......................................................................... 2

REPLY TO APPELLANT’S SOLE POINT OF ERROR .......................................... 3

   I. The trial court was within its discretion to rule on appellant’s motion to
      suppress solely on the face of the motions presented.......................................5

   II. Even if the trial court erred in hearing the DIMS summary after abatement,
       the proper remedy is to strike DIMS-summary-specific facts and findings
       from the record and proceed with appellate review. ........................................7

   III. Based upon review of the remaining record evidence, the trial court was
        within its discretion to deny appellant’s motion to suppress the stop. ...........13

      A.     The trial court was within its discretion to deny appellant’s motion to
             suppress, based upon violation of the Texas Transportation Code. .........13

      B.     The trial court was within its discretion to deny appellant’s motion to
             suppress based upon the community caretaking exception to the warrant
             requirement. ..............................................................................................16

CONCLUSION ........................................................................................................ 19

CERTIFICATE OF SERVICE ................................................................................. 19

CERTIFICATE OF COMPLIANCE ....................................................................... 20


                                                          iii
                                INDEX OF AUTHORITIES

CASES

Ackenback v. State,
  794 S.W.2d 567 (Tex. App.—Houston [1st Dist.] 1990, pet. ref'd) .......................4

Amador v. State,
  221 S.W.3d 666 (Tex. Crim. App. 2007)................................................................4

Bosely v. State,
  414 S.W.2d 468 (Tex. Crim. App. 1967) ................................................................5

Brown v. State,
  183 S.W.3d 728 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) ....................14
Cantu v. State,
  No. 01-88-01029-CR, 1989 WL 40718 (Tex. App.—Houston [1st Dist.] April 27,
  1989, no pet.) (not designated for publication) ..................................................5, 7

Castro v. State,
  227 S.W.3d 737 (Tex. Crim. App. 2007) ..........................................................4, 14
Corbin v. State,
  85 S.W.3d 272 (Tex. Crim. App. 2002)......................................................... 16, 17

Dempsey v. State,
  857 S.W.2d 759 (Tex. App.—Houston [14th Dist.] 1993, no pet.) ......................14

Dorion v. State,
  283 S.W.3d 71 (Tex. App.—Beaumont 2009, no pet.) ................................. 16, 17
Garcia v. State,
  43 S.W.3d 527 (Tex. Crim. App. 2001)................................................................14




                                                  iv
Garcia v. State,
  827 S.W.2d 937 (Tex. Crim. App. 1992) ..............................................................13

Gonzales v. State,
  No. 07-03-0241-CR, 2004 WL 344002 (Tex. App.—Amarillo Feb. 24, 2004, no
  pet.) (mem. op., not designated for publication) ..................................................15
Granados v. State,
  85 S.W.3d 217 (Tex. Crim. App. 2002)..................................................................4
Green v. State,
  615 S.W.2d 700 (Tex. Crim. App. [Panel Op.] 1980), cert. denied, 454 U.S. 952
  (1981) .....................................................................................................................4

Hailey v. State,
  87 S.W.3d 118 (Tex. Crim. App. 2002) ..................................................................5

Harris v. State,
  152 S.W.3d 786 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) ....................14
Kay v. State,
  No. 01-13-00595-CR, 2014 WL 3697917 (Tex. App.—Houston [1st Dist.] July
  24, 2014, no pet.) (mem. op., not designated for publication) ...............................9

Lewis v. State,
  711 S.W.2d 41 (Tex. Crim. App. 1986) ..................................................................9

Moore v. State,
  No. 14-02-00388-CR, 2003 WL 1087997 (Tex. App.—Houston [14th Dist.]
  March 13, 2003, no pet.) (corrected mem. op., not designated for publication) .13

Romero v. State,
  800 S.W.2d 539 (Tex. Crim. App. 1990) ................................................................4

State v. Kelly,
  204 S.W.3d 808 (Tex. Crim. App. 2006) ................................................................4




                                                             v
State v. Story,
   445 S.W.3d 729 (Tex. Crim. App. 2014) ............................................................4, 5

Thomas v. State,
   336 S.W.3d 703 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) ...................3, 4

United States v. King,
   990 F.2d 1552 (10th Cir. 1993) ............................................................................16

Valencia v. State,
   820 S.W.2d 397 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) ..................14
Wiede v. State,
   214 S.W.3d 17 (Tex. Crim. App. 2007)..................................................................3

Wright v. State,
   7 S.W.3d 148 (Tex. Crim. App. 1999) ........................................................... 16, 17

STATUTES

TEX. CODE CRIM. PROC. ANN. art. 28.01 § 1(6) (West 2013) .............................5, 7

TEX. TRANSP. CODE ANN. § 545.401 (West 2013) ......................................... 14, 15

RULES

TEX. R. APP. P. 39.1 .................................................................................................... i




                                                            vi
TO THE HONORABLE COURT OF APPEALS:


                             STATEMENT OF THE CASE

       Appellant was charged by misdemeanor information with the offense of

driving while intoxicated. (C.R. at 6) Appellant filed a “Defendant’s Motion to

Suppress” and a “Defendant’s Memorandum on Motion to Suppress.” (C.R. at 57-

66; C.R. Supp. at 8-13) A suppression hearing was held on April 8, 2014, and

appellant’s motion was denied by the trial court on the face of the motion and

appellant’s memorandum. (1 R.R. at 4; see C.R. at 57) No witnesses were heard at

the hearing. Appellant subsequently pled guilty to driving while intoxicated and

was sentenced to one year in the Harris County Jail, probated for eighteen months.

(C.R. at 67-70; 1 R.R. at 5-6) Appellant timely filed notice of appeal on May 6,

2014, and the trial court certified appellant’s right to appeal. (C.R. at 76-78)

       On September 25, 2014, the appeal was abated for the trial court to

supplement the record with its findings of fact and conclusions of law. (C.R. Supp.

at 3) The following day, with both appellant’s counsel and the State present, the

trial court stated its findings of fact and conclusions of law after the State recited

the DIMS summary for the case on the record.1 (Abatement R.R. at 1, 5-9)2

Written findings of fact and conclusions of law were subsequently submitted by the


1
 A DIMS summary is a brief synopsis of the facts of an offense written by the police officer who
filed charges against a defendant.
State and approved and adopted by the trial court.                (C.R. Supp. at 4-7; see

Abatement R.R. at 4)


                                STATEMENT OF FACTS

       Appellant drove out of a parking lot onto a roadway, Shaver. (See C.R. at

57-58) Officer Ferguson, while patrolling that same roadway, observed a male

appear to run after appellant’s truck who then stopped and walked back to the

parking lot. (C.R. at 57) The vehicle’s passenger door opened at which point

Officer Ferguson conducted a traffic stop.3 (C.R. at 58) Appellant, the driver of

the truck, was subsequently arrested for driving while intoxicated.4 (C.R. at 58)

Officer Ferguson stated in his offense report he stopped appellant’s vehicle because

he believed a disturbance was occurring. (C.R. at 58)


                          SUMMARY OF THE ARGUMENT

       The trial court was within its discretion to deny appellant’s motion to

suppress evidence on the face of appellant’s motion and memorandum submitted to

the trial court. Additionally, even if the trial court erred in allowing the State to

read the DIMS summary after the appeal was abated, the proper remedy would be



2
 “Abatement R.R.” refers to the Supplemental Reporter’s Record from September 26, 2014.
3
 Although outside the scope of review for this Court, appellant’s recitation of the facts in his
“Memorandum on the Motion to Suppress” did not include a fact recited by the State at the
abatement hearing that, once the vehicle door opened, the male ran towards the truck again. (See
C.R. at 57-58; Abatement R.R. at 6)

                                               2
to strike from the record those portions of the submitted findings based solely on

the State’s recitation. Review of the remaining appellate record confirms the trial

court was still within its discretion to deny appellant’s motion to suppress.


              REPLY TO APPELLANT’S SOLE POINT OF ERROR

       In a single point of error, appellant argues the trial court’s denial of his

motion to suppress the stop of his vehicle constituted an abuse of discretion. As

part of that point of error, appellant argues the trial court abused its discretion by

ruling on the face of his motion and memorandum submitted, without the State

presenting evidence. Appellant also contends the trial court’s allowance of the

State’s recitation of the DIMS summary at the abatement hearing, and the entry of

findings of fact and conclusions of law based, in part, on that recitation was an

abuse of discretion.

       Upon review of a trial court’s ruling on a motion to suppress, appellate

courts “must view the evidence in the light most favorable to the trial court’s

ruling.” Thomas v. State, 336 S.W.3d 703, 707 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d) (citing Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007)).

Any finding of the trial court in connection with its ruling on a motion to suppress,

that is supported by the evidence, is not to be disturbed. Ackenback v. State, 794


4
 Appellant argues solely that the initial stop of his vehicle was impermissible. (C.R. at 58, 62,
65; Appellant’s Brief at 1)

                                                 3
S.W.2d 567, 570 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d) (citing Green v.

State, 615 S.W.2d 700, 707 (Tex. Crim. App. [Panel Op.] 1980), cert. denied, 454

U.S. 952 (1981)). Hearsay information is sufficient to support a fact or an opinion

at a suppression hearing. Castro v. State, 227 S.W.3d 737, 743 (Tex. Crim. App.

2007) (citing Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002)).

      When findings of fact are rendered after a motion to suppress is denied,

reviewing courts must “determine whether the evidence—viewed in the light most

favorable to the trial court’s decision—supports the findings.”         Thomas, 336

S.W.3d at 707 (citing State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App.

2006)). While appellate courts “give almost total deference to the trial court’s

rulings on [ ] questions of historical fact, even if the trial court’s determination of

those facts was not based on an evaluation of credibility and demeanor, . . . when

application-of-law-to-fact questions do not turn on the credibility and demeanor of

the witnesses, [appellate courts] review the trial court’s ruling on those questions

de novo.” Id. (citing Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.

2007)).

      An appellate court “will uphold the [trial court’s] judgment if it is correct on

some theory of law applicable to the case, even if the trial judge made the

judgment for a wrong reason.” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim.

App. 2014) (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)).



                                          4
Further, a trial court’s ruling will not be reversed based on a legal theory that the

complaining party did not present to it. Id. (citing Hailey v. State, 87 S.W.3d 118,

122 (Tex. Crim. App. 2002)).

 I.   The trial court was within its discretion to rule on appellant’s motion to
      suppress solely on the face of the motions presented.

      For motions to suppress evidence, “the court may determine the merits of [a

motion to suppress evidence] on the motions themselves, or upon opposing

affidavits, or upon oral testimony, subject to the discretion of the court.” TEX.

CODE CRIM. PROC. ANN. art. 28.01 § 1(6) (West 2013). In fact, “[n]othing in the

rules of criminal procedure requires the trial court to hear any pre-trial motion, but

the accused retains his right to raise any appropriate objection at trial.” Cantu v.

State, No. 01-88-01029-CR, 1989 WL 40718, at *1 (Tex. App.—Houston [1st

Dist.] April 27, 1989, no pet.) (not designated for publication) (citing Bosely v.

State, 414 S.W.2d 468 (Tex. Crim. App. 1967)). In Cantu, this Court upheld a trial

court’s choice to determine the merits of a defendant’s motion to suppress based

upon submitted affidavits instead of live testimony, as permitted by statute. Id.

      Here, with his motion to suppress, appellant also filed a memorandum on the

motion to suppress. (C.R. at 57-66; C.R. Supp. at 8-13) The trial judge stated on

the record in the suppression hearing that the findings of fact were “contained in

[appellant’s] motion.” (1 R.R. at 4) A notation of “denied” with the trial judge’s

initials are on appellant’s memorandum.        (C.R. at 57; see C.R. Supp. at 7)

                                          5
Appellant’s own recitation of the facts submitted to and expressly considered by

the trial court in the suppression hearing stated:

               On September 16, 2013, Officer Ferguson was on
               patrolling [sic] the 2900 block of Shaver. Officer
               Ferguson saw a Ford F-150 truck exit a parking lot and
               merge onto Shaver. Officer Ferguson saw an unidentified
               male appear to run after the truck as it drove north on
               Shaver. The male stopped running, turned around, and
               began walking back to the parking lot entrance. Right as
               the passenger door opened, Officer Ferguson initiated a
               traffic stop on the Ford F-150, which was being driven by
               the Defendant. Officer Ferguson states in his Offense
               Report he stopped the vehicle because he believed a
               disturbance was occurring and subsequently arrested the
               Defendant for DWI.

(C.R. at 57-58) The State did not object to or contest appellant’s rendition of the

facts.    Additionally, after the trial court denied appellant’s motion, the State

informed the trial court that appellant’s blood alcohol concentration was a “[p]oint

2-2. . . [a]nd then there was a fight that broke out.” (1 R.R. at 5)

         While appellant argues there is no evidence supporting the trial court’s

denial of his motion to suppress because the State put on no witnesses and offered

no affidavits, appellant ignores the fact that his counsel submitted a recitation of

the facts which was uncontradicted and uncontested by the State at the suppression

hearing. (See C.R. at 57-58) Just as appellant argues at length that his unsworn

motion is sufficient to meet his burden to show the stop occurred without a

warrant, so too, is that same motion and memorandum sufficient for the trial court



                                           6
to consider when making a determination on the motion to suppress without the

need for live-witness testimony at the hearing. (See TEX. CODE CRIM. PROC. ANN.

art. 28.01 § 1(6) (West 2013); Appellant’s Brief at 7-9)

      Although appellant argues that the trial court’s refusal to hear oral testimony

at the hearing was an “ambush[ ],” he ignores statutory authority that the trial court

is permitted to exercise its discretion to rule on such matters without live

testimony. See TEX. CODE CRIM. PROC. ANN. art. 28.01 § 1(6) (West 2013);

(Appellant’s Brief at 13) Therefore, as in Cantu, the trial court here was free to

rule on the basis of the motion and memorandum without live-witness testimony.

Appellant was free to call his own witnesses or cross-examine Officer Ferguson at

trial after the motion’s denial. See Cantu, 1989 WL 40718 at *1. Appellant chose,

instead, to plead guilty rather than develop any such testimony at trial.

      Therefore, because the trial court was permitted to rule upon appellant’s

motion to suppress evidence based upon the motions filed, the trial court’s decision

to do so in this case was not an abuse of discretion.

II.   Even if the trial court erred in hearing the DIMS summary after
      abatement, the proper remedy is to strike DIMS-summary-specific facts
      and findings from the record and proceed with appellate review.

      Appellant contends that the trial court’s allowance of the State’s recitation of

the DIMS summary during the abatement hearing constituted an abuse of




                                          7
discretion and those portions of the trial court’s findings of fact and conclusions of

law based upon the DIMS recitation should be stricken from the appellate record.

       Upon abatement of the appeal for the trial court to enter its findings of fact

and conclusions of law, the trial court stated its reasoning for denying appellant’s

motion on the record.5 (Abatement R.R. at 5-9) During the abatement hearing, the

State recited the DIMS summary to the trial court, most of which mirrored

appellant’s own recitation of the facts listed in his memorandum on the motion to

suppress submitted to and considered by the trial court at the suppression hearing.

(Abatement R.R. at 5-6, 8; see C.R. at 57-58) Appellant’s counsel, present for the

abatement hearing, did not object to the State’s recitation and affirmed to the trial

court facts such as appellant’s size and that he “pulled out of the parking lot and

into a public street . . . .” (Abatement R.R. at 7-8)

       This Court has recognized that, upon abatement of an appeal, “[a] trial court

is not authorized to conduct an evidentiary hearing to develop a record of new

testimony and other evidence that was not presented at trial, or developed on

motion for new trial.” Kay v. State, No. 01-13-00595-CR, 2014 WL 3697917, at

*5 (Tex. App.—Houston [1st Dist.] July 24, 2014, no pet.) (mem. op., not




5
 Although the trial court stated that it had previously heard the State’s recitation of probable
cause in this case, the State did not recite probable cause on the record at the suppression
hearing. (See Abatement R.R. at 5)

                                                 8
designated for publication) (quoting Lewis v. State, 711 S.W.2d 41, 43-44 (Tex.

Crim. App. 1986)).

         In such cases where additional evidence was considered upon abatement,

appellate courts have proceeded with analysis without consideration of the

additional evidence presented during a case’s abatement. See Lewis, 711 S.W.2d at

44 (finding appellate court “correctly refused to consider [ ] evidence presented by

[the defendant] at his post-abatement evidentiary hearing”); Kay, 2014 WL

3697917 at *5 (evaluating record on appeal without “consider[ing] the testimony

from the evidentiary hearing that was held while the case was abated”). Here, the

appeal was abated for the trial court to enter “written findings of fact and

conclusions of law.”6 (C.R. Supp. at 3) Because the DIMS summary was not read

or filed on the record during the suppression hearing, reading this additional

information during the abatement hearing likely constituted additional evidence

submitted to the trial court. See Kay, 2014 WL 3697917 at *5. However, this

Court can still proceed with appellate review by striking those DIMS-summary-




6
    Appellant implies no notice was given of the abatement hearing. (Appellant’s Brief at 13-16)
However appellant’s counsel was present on the record for the abatement hearing, held the day
after the appeal was abated, where the trial court’s finding of facts and conclusions of law were
discussed. (See Abatement R.R. at 4; C.R. Supp. at 3) Appellant’s counsel also agreed he
recalled the State, as the prevailing party, was to submit the proposed findings per the trial
court’s policy, no objection was made regarding the findings, and appellant’s counsel was
scheduled to return to court once the findings were submitted. (See Abatement R.R. at 4, 9-10)


                                                9
specific portions of the trial court’s findings of fact and conclusions of law, as

appellant also proposes. (See Appellant’s Brief at 16)

      Notably, certain portions of the trial court’s findings of fact and conclusions

of law are supported by the record developed at the suppression hearing and the

trial court expressly stated that its findings were contained within appellant’s

motion. (See C.R. at 57-58; 1 R.R. at 4) Therefore, only those findings which rely

solely on the State’s DIMS summary recitation should be stricken from the

appellate record, as that is the only evidence that was not presented at the

suppression hearing.      The remaining facts and conclusions, supported by

appellant’s own memorandum and the record, should be permitted for appellate

review. Appellant concedes as much, as he has requested a portion of the trial

court’s findings to be stricken from the record, rather than the findings in their

entirety. (See Appellant’s Brief at 16)

      However, appellant is incorrect in his identification of the findings that

should be stricken. (See Appellant’s Brief at 16) Specifically, those findings

which rely solely on the DIMS recitation and should be stricken from the record

are items (6a-6d), (7), (9), and (17) from the “I. Findings of Fact” section of

“State’s Proposed Findings of Fact and Conclusions of Law” adopted by the trial

court on September 30, 2014. (C.R. Supp. at 4-7) Additionally, the word “bar”

should be stricken from item (11), and the word “stopped” should be stricken from



                                          10
item (13) from the “I. Findings of Fact” section of “State’s Proposed Findings of

Fact and Conclusions of Law.” (See C.R. Supp. at 6) The phrase “stopped in the

road and” should be stricken from item (1), and the phrase “stopping in a public

road and” should be stricken from item (3) in the “II Conclusions of Law” section

of the findings. (See C.R. Supp. at 6) Additionally, portions of the abatement

reporter’s record regarding the DIMS-summary-specific facts should be stricken

for appellate review. (See Abatement R.R. at 5-9)

      All remaining findings of fact and conclusions of law are supported in the

appellate record developed at the suppression hearing and, therefore, need not be

stricken from the record for appellate review. With these redactions, the trial

court’s findings of fact and conclusions of law would appear for review, in

pertinent part, as follows:

                                 I. Findings of Fact

                                Preliminary Findings

(Items 1-4 would remain unaltered)

5. On April 8, 2014, the court denied the Defendant’s motion to suppress. The
   court ruled based on the face of the motion.

8. The Court finds that the Defendant did not provide any affidavit to state that the
   Defendant was (1) arrested without a warrant and (2) was not violating the law.
   The Court finds that there were no facts put at issue by the Defendant.




                                         11
                                      The Offense

10.The Court finds that on September 16, 2013, the Defendant operated a motor
   vehicle in a public place in Harris County, TX, while intoxicated.

                               Stop, Arrest, and Search

11. The Court finds that Officer Ferguson observed the Defendant exit a [ ] parking
    lot.

12.The Court finds that Officer Ferguson observed a male chasing after the
   Defendant’s vehicle.

13.The Court finds that the passenger side door of the Defendant’s vehicle opened
   as the Defendant was [ ] in the road.

14.The Court finds that Officer Ferguson, given the totality of the circumstances,
   believed that the Defendant was in need of help.

15.The Court finds that Officer Ferguson was primarily motivated by a community
   caretaking purpose when he stopped the Defendant’s vehicle.

16.The Court finds that Officer Ferguson’s belief that the Defendant needed help
   was reasonable.

                               II. Conclusions of Law

1. Officer Ferguson was justified in stopping the Defendant’s vehicle based on the
   community caretaking function and Officer Ferguson’s reasonable belief that
   the Defendant needed help due to the fact that he [ ] opened his passenger side
   door as a male was chasing him. Franks v. State, 241 S.W.3d 135 (Tex. App.—
   Austin [3rd Dist.] 2007, pet. ref’d) [sic] Wright v. State, 7 S.W.3d 148, 151-52
   (Tex. Crim. App. 1999). [sic] Dorion v. State, 283 S.W.3d 71 (Tex. App.—
   Beaumont [9th Dist.] 2009).

2. Because Officer Ferguson conducted a community caretaking stop in this case,
   he was not required to have reasonable suspicion or probable cause to believe
   that the Defendant had committed an offense. Franks v. State, 241 S.W.3d 135
   (Tex. App.—Austin [3rd Dist.] 2007, pet. ref’d.[sic])



                                        12
3. Alternatively, the Defendant’s action of [ ] opening the passenger side door is
   per se reckless and gives rise to probable cause that the crime of reckless
   driving had been committed.

(See C.R. Supp. at 4-7)

       With such redactions made, this Court can consider the remaining record to

evaluate the merits of appellant’s point of error.

III.   Based upon review of the remaining record evidence, the trial court was
       within its discretion to deny appellant’s motion to suppress the stop.

       The trial court was within its discretion to find Officer Ferguson permissibly

stopped appellant’s vehicle due to violation of the Texas Transportation Code or,

alternatively, acted in his community caretaking function when he stopped

appellant’s vehicle.

       A. The trial court was within its discretion to deny appellant’s motion to
          suppress, based upon violation of the Texas Transportation Code.

       A police officer may stop and detain a motorist for investigation if the

officer has a reasonable suspicion that a traffic violation was committed, or if the

offense is committed in the officer’s presence. Moore v. State, No. 14-02-00388-

CR, 2003 WL 1087997, at *1 (Tex. App.—Houston [14th Dist.] March 13, 2003,

no pet.) (corrected mem. op., not designated for publication) (citing Garcia v. State,

827 S.W.2d 937, 944 (Tex. Crim. App. 1992)). Furthermore, an “officer need not

observe all the elements of an offense, but must merely reasonably believe that an

offense is occurring in order to make an arrest.” Dempsey v. State, 857 S.W.2d


                                          13
759, 761 (Tex. App.—Houston [14th Dist.] 1993, no pet.) (citing Valencia v. State,

820 S.W.2d 397 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (finding officer

“at least had articulable facts and an adequate degree of suspicion” to perform

investigatory stop for traffic law violations)). Reasonable suspicion exists if 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

actually is, has been, or soon will be engaged in criminal activity. Castro, 227

S.W.3d at 741 (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)).

      A person commits the offense of reckless driving if he drives his vehicle “in

wilful [sic] or wanton disregard for the safety of persons or property.” T EX.

TRANSP. CODE ANN. § 545.401 (West 2013).             This Court has clarified that

“‘willful and wanton disregard’ means the ‘deliberate and conscious indifference to

the safety of others.’” Brown v. State, 183 S.W.3d 728, 733 (Tex. App.—Houston

[1st Dist.] 2005, pet. ref’d) (quoting Harris v. State, 152 S.W.3d 786, 796 (Tex.

App.—Houston [1st Dist.] 2004, pet. ref’d)).

      In this case, the record evidence, provided by appellant’s counsel, supports a

finding that appellant was engaged in reckless driving at the time of the stop. (See

C.R. at 57-58) Appellant pulled his vehicle out onto a roadway, the same roadway

upon which Officer Ferguson was patrolling, and drove away from a parking lot

with someone running behind him. (C.R. at 57-58) At some point on the roadway,



                                        14
appellant’s passenger door was opened. (C.R. at 57-58) Based upon this record

evidence, Officer Ferguson’s stop of the vehicle was permissible.

      In Gonzales v. State, the Amarillo Court of Appeals upheld a trial court’s

denial of a motion to suppress after officer testimony described the defendant’s

vehicle veering towards him to the point he believed the vehicle would hit him,

even though the officer stated he did not consider such action “to be a violation of

the law. . . .” No. 07-03-0241-CR, 2004 WL 344002, at *3 (Tex. App.—Amarillo

Feb. 24, 2004, no pet.) (mem. op., not designated for publication). Although the

officer also testified he saw the defendant’s rear license plate light was not

working, the appellate court found the testimony was sufficient to “support the trial

court’s finding of reasonable suspicion that . . . reckless driving[ ] occurred.” Id.

      Although there is no officer testimony in this case, the facts given by

appellant’s counsel, and uncontested by the State, support a finding that Officer

Ferguson had reasonable suspicion appellant was driving in willful or wanton

disregard for the safety of persons or property when the passenger door of his

vehicle was opened while he was operating a truck on a roadway being chased by

someone on foot. TEX. TRANSP. CODE ANN. § 545.401 (West 2013). Therefore,

because the record supports the contention that Officer Ferguson had reasonable

suspicion that appellant was driving recklessly in violation of the Texas




                                          15
Transportation Code, the trial court was within its discretion to deny appellant’s

motion to suppress without witness testimony.

      B. The trial court was within its discretion to deny appellant’s motion to
         suppress based upon the community caretaking exception to the
         warrant requirement.

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

276 (Tex. Crim. App. 2002) (citing Wright v. State, 7 S.W.3d 148, 151-52 (Tex.

Crim. App. 1999); see also United States v. King, 990 F.2d 1552, 1560 (10th Cir.

1993)).   To invoke an officer’s community caretaking function, the “officer’s

primary motive must be concern for the individual’s well-being” and the belief that

appellant needed help must be reasonable. Dorion v. State, 283 S.W.3d 71, 75

(Tex. App.—Beaumont 2009, no pet.) (citing Corbin, 85 S.W.3d at 277).

      Here, the trial judge found that Officer Ferguson acted under the community

caretaking exception to the warrant requirement. (C.R. Supp. at 6) The Court of

Criminal Appeals has provided guidance in determining if an officer’s belief is

reasonable in that “courts may look to a list of four non-exclusive factors: (1) the

nature and level of 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



                                        16
individual, if not assisted, presented a danger to himself or others.” Corbin, 85

S.W.3d at 277 (citing Wright, 7 S.W.3d at 152).

      In Dorion v. State, the Beaumont Court of Appels upheld the trial court’s

denial of appellant’s motion to suppress based upon the community caretaking

function. 283 S.W.3d at 75. In Dorion, the officer submitted an affidavit for a

suppression hearing stating he saw the defendant’s vehicle travelling slowly with

intermittent blinking brake lights and noticed the defendant had vomited on the

ground outside his car.    Id. at 73-74.     The officer later testified at trial the

defendant had not violated any traffic laws when he was stopped, he saw the

vehicle pulled over with the door open and brakes displayed, and later stated

appellant drove off the roadway with the door open as he was vomiting. Id. at 74.

      Here, the record shows that appellant was seen driving a truck out of a

parking lot and a person was running behind him. (C.R. at 57-58) Appellant’s

passenger door was then opened while appellant was still on the roadway. (C.R. at

57-58) Officer Ferguson believed a disturbance was occurring. (C.R. at 58)

Appellant’s distress is evidenced by the opening of vehicle doors while his vehicle

was on the same roadway Officer Ferguson was patrolling. (See C.R. at 57-58)

Although the pedestrian later walked away from appellant’s truck, distress was also

shown by the fact that the person was initially seen running after appellant’s

moving vehicle.    (See C.R. at 57-58)       While there is some record evidence



                                        17
regarding appellant’s location, the dangerous act of opening a passenger door on a

roadway supports the reasonable inference that appellant needed help.

Additionally, the act of opening the door on the roadway supports the reasonable

inference that appellant was causing a danger to himself, to the pedestrian running

after him, and to other vehicles or pedestrians travelling on the roadway, including

Officer Ferguson. (See C.R. at 57-58)

      Therefore, the record supports the finding that Officer Ferguson acted under

the community caretaking exception to the warrant requirement and such an act

was both reasonable and permissible.

      The trial court could have reasonably found, based upon the appellate

record—without reference to evidence gained at the abatement hearing—that

Officer Ferguson’s stop of appellant was based on reasonable suspicion that

appellant committed the traffic violation of reckless driving. Therefore, the trial

court was within its discretion to deny appellant’s motion to suppress the stop.

Alternatively, the record supports the finding that Officer Ferguson acted within his

community caretaking function in stopping appellant’s vehicle. Therefore, the trial

court was within its discretion to deny appellant’s motion to suppress. The trial

court was also within its discretion to deny appellant’s motion on the basis of the

motions themselves, as expressly authorized by statute.




                                         18
                                  CONCLUSION

      It is respectfully submitted that all things are regular and the conviction

should be affirmed.

                                                 DEVON ANDERSON
                                                 District Attorney
                                                 Harris County, Texas

                                                 /s/ Patricia McLean
                                                 PATRICIA MCLEAN
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002
                                                 (713) 755-5826
                                                 TBC No. 24081687
                                                 mclean_patricia@dao.hctx.net


                         CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been sent to the

following email address via e-filing:

      Maverick Ray
      Attorney for Appellant
      maverickraylaw@gmail.com

                                                 /s/ Patricia McLean
                                                 PATRICIA MCLEAN
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002
                                                 (713) 755-5826
                                                 TBC No. 24081687


                                         19
                     CERTIFICATE OF COMPLIANCE

       The undersigned attorney certifies that this computer-generated document
has a word count of 4,056 words, based upon the representation provided by the
word processing program that was used to create the document.

                                            /s/ Patricia McLean
                                            PATRICIA MCLEAN
                                            Assistant District Attorney
                                            Harris County, Texas
                                            1201 Franklin, Suite 600
                                            Houston, Texas 77002
                                            (713) 755-5826
                                            TBC No. 24081687
Date: 5/6/2015




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