                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-14-00054-CR


                               AMBER RODGERS, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE

                        On Appeal from the County Criminal Court No. 5
                                     Denton County, Texas
            Trial Court No. CR-2013-02785-B, Honorable Richard Podgorski, Presiding

                                          July 22, 2014

                                MEMORANDUM OPINION
                     Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      Appellant, Amber Rodgers, entered a plea of nolo contendere to the charge of

possession of a usable quantity of marijuana in an amount of two ounces or less. 1

Pursuant to a plea bargain, appellant was placed on deferred adjudication community

supervision for 12 months and ordered to pay a fine of $300. Prior to entry of the plea

bargain, appellant filed a motion to suppress any evidence obtained as the result of her




      1
          See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b) (West 2010).
initial detention.       The trial court overruled the motion and subsequently certified

appellant’s right to appeal.2 We will affirm.


                                 Factual and Procedural Background


        On March 9, 2013, at 2:00 a.m., Officer Ashley Simmons of the Carrollton Police

Department was on patrol when she observed a white Honda Civic with its lights on

parked in the parking lot that was shared by several businesses.                        The businesses

appeared to be closed. Simmons observed a female, who subsequently turned out to

be appellant, in the vehicle slumped over the steering wheel. Simmons turned her

police vehicle into the parking lot to conduct a welfare check on the woman in the

vehicle. Simmons approached appellant’s vehicle at a slight angle several feet behind

it. Before Simmons could exit her vehicle to check on appellant, appellant’s vehicle

began backing toward Simmons.                    Simmons turned her emergency lights on to get

appellant’s attention and to prevent her from backing into the police vehicle. Appellant

stopped her car and Simmons went to the driver’s side door to check on appellant.

Simmons testified that she pulled in behind appellant’s vehicle to check on appellant’s

condition and make sure there was no medical emergency. After making contact with

appellant, Simmons determined that there was no medical emergency but concluded

there was reason to detain appellant for driving while intoxicated.3


        Appellant was subsequently charged by complaint and information with

possession of a usable quantity of marijuana in an amount of two ounces or less.


        2
            See TEX. R. APP. P. 25.2(a)(2)(A).
        3
          Ultimately, appellant was charged with misdemeanor possession of marijuana instead of driving
while intoxicated. The arrest affidavit, filed in the Clerk’s Record, indicates that the marijuana was found
in appellant’s purse after her detention for driving while intoxicated.
                                                      2
Appellant filed a motion to suppress the evidence seized, contending that there was no

reasonable suspicion to detain appellant. The trial court conducted a hearing on the

motion to suppress and denied it. Thereafter, the trial court filed findings of fact and

conclusions of law.


       Following the trial court’s denial of the motion to suppress, appellant entered a

plea of nolo contendere to the misdemeanor marijuana charge, and this appeal

followed. Appellant contends in a single issue that Simmons lacked any reasonable

suspicion to detain her. Accordingly, she contends that the trial court erred in overruling

the motion to suppress and that we should reverse the trial court’s decision.

Disagreeing with appellant, we will affirm.


                                   Standard of Review


       We review a trial court’s denial of a motion to suppress under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).

We review the trial court’s factual findings for an abuse of discretion but review the trial

court’s application of the law to the facts de novo. Id. In reviewing the trial court’s

decision, we do not engage in our own factual review; rather, 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.   St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).

Therefore, we give almost total deference to the trial court’s rulings on (1) questions of

historical fact, especially when based on an evaluation of credibility and demeanor, and

(2) application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor. See Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Appellate

courts review de novo “mixed questions of law and fact” that do not depend upon

                                              3
credibility and demeanor. Id. If the trial court’s decision is correct under any theory of

law applicable to the case, it will be sustained. Armendariz v. State, 123 S.W.3d 401,

404 (Tex. Crim. App. 2003) (en banc). Additionally, the legal question whether the

totality of circumstances justified the officer’s actions is reviewed de novo. Hudson v.

State, 247 S.W.3d 780, 784 (Tex. App.—Amarillo 2008, no pet.).


                                 Community Caretaking


       Community caretaking is a recognized exception to the warrant requirement of

the Fourth Amendment to the United States Constitution. See Cady v. Dombrowski,

413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973). The Texas Court of

Criminal Appeals recognized the community caretaking exception in Wright v. State, 7

S.W.3d 148, 151 (Tex. Crim. App. 1999) (en banc).            In Cady, the United States

Supreme Court held that police officers may engage in community caretaking function

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

the violation of a criminal statute.” Cady, 413 U.S. at 441. However, the court further

acknowledged that the Fourth Amendment requires only reasonableness. See id. at

439. Texas jurisprudence has held that “as part of his duty to serve and protect, a

police officer may stop and assist an individual whom a reasonable person, given the

totality of the circumstances, would believe is in need of help.” Gonzales v. State, 369

S.W.3d 851, 854 (Tex. Crim. App. 2012) (quoting Wright, 7 S.W.3d at 151). Further, the

officer’s invocation of the community caretaking function must not be primarily motivated

by a non-community caretaking purpose. Id.


       In order to properly evaluate the invocation of the community caretaking function,

we are directed to first engage in a two-step inquiry: “(1) whether the officer was

                                             4
primarily motivated by a community-caretaking purpose; and (2) whether the officer’s

belief that the individual needs help was reasonable.” Id. at 854-55 (citing Corbin v.

State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002)).


       If we find that an officer was primarily motivated by the community caretaking

purpose, we are further required to review the reasonableness of the officer’s belief that

the citizen needs assistance by reviewing a four part non-exclusive list of factors. Id.

The factors we may consider are: “(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 independent of that offered by the officer; and (4)

to what extent the individual—if not assisted—presented a danger to himself or others.”

Id. (citing Wright, 7 S.W.3d at 151-52).


                   Trial Court Findings of Fact and Conclusions of Law


       We begin our analysis by reviewing the findings of fact and conclusions of law

entered by the trial court following the pre-trial hearing on the motion to suppress. The

trial court made the following findings of facts:


       (1)    Officer Ashley Simmons, a certified peace officer for the State of
              Texas, was driving north bound near the intersection of Frankford
              and Josey in the city of Carrollton, Denton County, Texas at
              approximately 0200 hours on March 9, 2013.

       (2)    Officer Simmons observed a white Honda Civic in an empty parking
              lot with its lights on.

       (3)    The car was parked near the entrance of the parking lot. There is a
              total of two entrances and exits to the parking lot. The businesses
              of that parking lot were closed.

       (4)    In the same area, at the intersection of Josey and Frankford, there
              are other businesses that were also closed. On the southwest
              corner of the intersection[,] there is a CVS pharmacy, a pizza place,
                                              5
       and other small businesses. On the [southeast] corner, there is
       another large shopping center with a Texaco, Dollar Store, and
       other small businesses. On the northeast corner, there is a
       Walgreens pharmacy. All businesses were fairly close to where the
       [appellant]’s vehicle was parked. All businesses were closed.

(5)    As Officer Simmons drove closer to the vehicle, she noticed a
       female slumped over the steering wheel. Officer Simmons did not
       know how long the [appellant] was slumped over the wheel of the
       vehicle and she did not know why the [appellant] was slumped over
       the wheel of the vehicle. There was no one else in the vehicle and
       no other cars in the parking lot.

(6)    Officer Simmons pulled in to the lot to check on the [appellant]’s
       welfare. She did not know if the [appellant] was passed out,
       unconscious, or needed medical assistance. Her primary concern
       was to make sure the [appellant] was ok.

(7)    When Officer Simmons stopped behind the [appellant]’s vehicle,
       the [appellant] placed her car in reverse and began to pull out.
       Officer Simmons activated her emergency lights in an attempt to
       gain the [appellant]’s attention. At the time that the [appellant]
       began reversing, Officer Simmons was still not aware if the
       [appellant] needed assistance, if she was unconscious while
       reversing, or if her foot had slipped off the brake.

(8)    Officer Simmons testified that the manner in which the [appellant]
       reversed was unsafe because the [appellant]’s vehicle would have
       collided with Officer Simmons’[s] patrol car had she continued
       backing out. The [appellant] violated [T]ransportation [C]ode
       545.415 and 547.004. Even though the violations occurred after
       Officer Simmons pulled in behind the [appellant], Officer’s (sic)
       Simmons was primarily concerned with the [appellant]’s welfare.

(9)    The [appellant] responded to Officer Simmons’[s] lights by bringing
       her vehicle to a stop.

(10)   Officer Simmons testified that when she activated her emergency
       lights, the Defendant was being detained for a welfare check.

(11)   Officer Simmons made contact with the [appellant] and asked if she
       was ok and why the [appellant] was slumped over the wheel. A
       DWI investigation ensued, and the [appellant] was later arrested for
       Driving While Intoxicated.

(12)   The Court finds Officer Ashley Simmons’[s] testimony credible.



                                     6
The trial court then entered conclusions of law that found that Simmons properly

exercised her community caretaking function and that appellant’s detention was lawful.

Being mindful of the standard of review that we, the reviewing court, do not make an

independent review of the facts, but, instead, defer to the trial court’s findings as the

sole trier of fact and judge of the credibility of the witnesses and the weight to be given

their testimony, we begin our analysis. See St. George, 237 S.W.3d at 725.


                                          Analysis


       In reviewing the record, it is clear that Simmons’s initial reaction was to turn into

the parking lot to see if appellant was okay. This supports the trial court’s finding of fact

that Simmons’s primary motivation in detaining appellant was to perform a community

caretaking function.    See Gonzales, 369 S.W.3d at 854.          Appellant contends that

Simmons’s primary motivation was not community caretaking because she pulled in

behind appellant’s vehicle and “sat for an unknown period of time.” While it is true that

Simmons could not say precisely how long it took her to get to appellant after she

entered the parking lot and stopped her patrol car, the record does not indicate that it

was more than a momentary pause caused by the necessity of Simmons having to

activate her emergency lights to keep appellant from backing into her patrol car.

Simmons testified that, as soon as appellant stopped backing up, she made contact

with her. There is nothing in the record to demonstrate that Simmons waited to make

contact with appellant. Further, the trial court found that Simmons’s testimony was

credible.   We defer to this finding and conclude that Simmons made contact with

appellant as quickly as was possible under the situation. See Ford, 158 S.W.3d at 493.




                                              7
      We now turn our attention to the issue of whether Simmons’s belief that appellant

needed help was reasonable.       See Gonzales, 369 S.W.3d at 854-55. To assist a

reviewing court in ascertaining whether the officer’s belief was reasonable, we examine

the four non-exclusive factors first proposed by the Texas Court of Criminal Appeals in

Wright. See 7 S.W.3d at 151-52.


      The first factor we examine is the nature and level of distress exhibited by

appellant. See Gonzales, 369 S.W.3d at 855. The record reflects that Simmons, a

certified peace officer, observed a vehicle in an empty parking lot with its lights on and

the driver slumped over the steering wheel at 2:00 in the morning. Simmons testified

that appellant appeared to be alone in the vehicle. These observations are the earmark

of a need for assistance. The community caretaking exception is designed to be utilized

by an officer so that the officer may give assistance to a member of the public in times

of distress. See Yocom v. State, No. 02-03-00181-CR, 2004 Tex. App. LEXIS 3195, at

*20 (Tex. App.—Fort Worth Apr. 8, 2004, pet. ref’d) (not designated for publication).

This factor weighs in favor of the reasonableness of Simmons’s decision to come to

appellant’s assistance. Appellant argues that Simmons’s testimony only demonstrates

that she observed “some unknown part of [appellant]’s body over the steering wheel for

an unknown amount of time, for an unknown reason.” This, according to appellant,

means there was not enough distress demonstrated to necessitate a detention. Initially,

we observe that Simmons did not testify that an unknown part of appellant’s body was

slumped over the steering wheel. Rather, she testified that appellant’s upper body was

slumped over the steering wheel. Appellant’s contention would lead to the conclusion

that an officer has no reasonable belief to instigate a community caretaking detention

unless the officer already knows all operative facts.     This is nonsensical given the

                                            8
purpose of the community caretaking exception. The entire reason for the detention is

to ascertain whether this member of the public needs assistance.         See Corbin, 85

S.W.3d at 276.


      The second factor, the location of the individual, likewise supports the

reasonableness of Simmons’s belief that appellant was in need of assistance. The

record reflects that appellant’s vehicle was in a deserted parking lot, surrounded by

closed businesses, at 2:00 in the morning.         These facts weigh in favor of the

reasonableness of Simmons’s belief that appellant was in need of assistance.


      The third factor also weighs in favor of appellant’s need for assistance. Appellant

was alone in the vehicle. From Simmons’s perspective, if appellant was having any

type of vehicle or medical emergency, she had no assistance, other than what the

officer could provide. Appellant contends that, in this day and time, Simmons should

have realized that appellant had a cell phone and could call for assistance, if assistance

was needed. This analysis fails because it assumes two facts. First, it assumes that

appellant had a cell phone, a fact totally unknown to Simmons. Second, it assumes

appellant was not in distress and able to properly seek assistance. Such an assumption

would negate any use of the community caretaking function to assist a distressed

citizen. If we accept appellant’s propositions, there can never be a case of the proper

exercise of the community caretaking function.


      Finally, the extent to which appellant might pose a danger to herself or others

weighs in favor of the reasonableness of Simmons’s decision to invoke the community

caretaking exception. All Simmons knew as she approached appellant’s vehicle was

that a female appeared to be slumped over the steering wheel of her car. Simmons

                                            9
testified she could not tell if appellant was passed out or otherwise unconscious. While

the facts later demonstrated that appellant became at least somewhat conscious,

Simmons’s initial observations lend credence to her belief that appellant might pose a

danger to herself.


       Based upon a review of the four factors enunciated in Wright, we find that

Simmons’s belief that appellant was in need of assistance was reasonable. 7 S.W.3d at

151-52. The trial court’s decision to deny the motion to suppress was not an abuse of

discretion. See Turrubiate, 399 S.W.3d at 150. Accordingly, appellant’s contentions

that the community caretaking exception was not properly invoked are overruled.

Having decided that Simmons’s detention of appellant pursuant to the community

caretaking function was proper we do not need to review appellant’s two additional

complaints. See TEX. R. APP. P. 47.1.


                                        Conclusion


       Having overruled appellant’s issue regarding the community caretaking

detention, we affirm the judgment of the trial court.




                                                        Mackey K. Hancock
                                                             Justice

Do not publish.




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