          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                    NO. PD-0683-11



                           JIMMY GONZALES, Appellant

                                            v.

                               THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
              FROM THE ELEVENTH COURT OF APPEALS
                         TAYLOR COUNTY

      K EASLER , J., delivered the opinion of the Court, in which K ELLER, P.J., and
W OMACK, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. M EYERS, J., filed a dissenting
opinion, in which P RICE, J., joined. J OHNSON, J., dissented.

                                     OPINION

       Before trial, Jimmy Gonzales filed a motion to suppress asserting that his seizure

violated the Fourth Amendment of the U.S. Constitution and the Texas Constitution. The

trial judge overruled the motion. The court of appeals affirmed and held the seizure was a

reasonable exercise of the officer’s community-caretaking function. Holding that Gonzales’s

motion to suppress was properly denied, we affirm the court of appeals’s judgment.
                                                                              GONZALES—2

                                           Background

       At the hearing, Abilene Police Department Officer Adam Becker testified that just

before 1:00 a.m. on August 27th, 2007, while sitting at a red light, he observed Gonzales’s

vehicle pull off of the road and come to a stop on the shoulder just a short distance ahead.

The area where Gonzales stopped was on the way out of town towards the neighboring town,

with only a few businesses in the area, no houses nearby, and only light traffic passing by at

that time of night. Believing the driver needed assistance, Officer Becker activated both his

front-facing and rear-facing overhead red and blue lights to notify Gonzales that it was the

police and not “some bad guy” who had pulled in behind him. As Officer Becker pulled onto

the shoulder behind the vehicle, Gonzales began to drive away, but quickly stopped. Officer

Becker stated that his sole reason for pulling in behind Gonzales was “to check on them, see

if they had a flat tire, if everything was okay, if maybe they were lost” and “to see if he was

. . . having trouble, if he needed assistance . . . .”

       Officer Becker contacted Gonzales and asked him if everything was okay. While

speaking with Gonzales he noticed a strong odor of alcohol coming from the vehicle and that

Gonzales’s eyes were bloodshot and his speech was slurred. Officer Becker then began a

driving-while-intoxicated investigation resulting in Gonzales’s arrest for that offense.

       The trial judge denied Gonzales’s motion to suppress and concluded that, while

Officer Becker “did not have a reasonable suspicion or probable cause to believe that an

offense had been committed,” he “was concerned that the operator of the vehicle might need
                                                                                GONZALES—3

assistance” and that this belief was reasonable. The trial court entered findings of fact and

conclusions of law supported by the record. Gonzales subsequently pleaded guilty to driving

while intoxicated and was sentenced and placed on community supervision for five years.

       On appeal, Gonzales asserted that he was seized when Officer Becker activated his

emergency lights and that his seizure was not a reasonable exercise of Officer Becker’s

community-caretaking function. The court of appeals held that the use of Officer Becker’s

emergency lights constituted a seizure, but that the seizure was permissible under the

community-caretaking exception.1 The latter holding is the subject of Gonzales’s petition

for discretionary review.

                                          Discussion

       A. Standard of Review for Suppression Motions

       When reviewing a trial judge’s ruling on a motion to suppress, we view all of the

evidence in the light most favorable to the trial judge’s ruling.2 When supported by the

record, the trial judge’s determination of historical facts are afforded almost total deference.3

Further, “courts afford the prevailing party ‘the strongest legitimate view of the evidence and

all reasonable inferences that may be drawn from that evidence.’”4 Almost total deference


       1
           Gonzales v. State, 342 S.W.3d 151, 153–54 (Tex. App.—Eastland 2011).
       2
           State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
       3
           Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
       4
        State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011) (quoting Garcia-
Cantu, 253 S.W.3d at 241).
                                                                             GONZALES—4

is afforded to a trial judge’s ruling on mixed questions of law and fact that depend upon an

evaluation of credibility and demeanor.5 But when mixed questions of law and fact do not

depend on evaluation of credibility and demeanor, we review the trial judge’s ruling de

novo.6 All purely legal questions are reviewed de novo.7

       B. The Fourth Amendment and the “Community Caretaking Function”

       “The Fourth Amendment [of the United States Constitution] proscribes all

unreasonable searches and seizures, and it is a cardinal principle that ‘searches conducted

outside the judicial process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject only to a few specifically established

and well-delineated exceptions.’”8 In Cady v. Dombrowski, the United States Supreme Court

established what has become known as the “community-caretaking” exception to the warrant

requirement in recognizing that police officers may contact citizens “and engage in what, for

want of a better term, may be described as community caretaking functions, totally divorced

from the detection, investigation, or acquisition of evidence relating to the violation of a




       5
           Guzman, 955 S.W.2d at 89.
       6
           Id.
       7
        Woodard, 341 S.W.3d at 657; Kothe v. State, 152 S.W.3d 54, 62–63 (Tex. Crim.
App. 2004).
       8
        Mincey v. Arizona, 437 U.S. 385, 390 (1978) (citing Katz v. United States, 389 U.S.
347, 357 (1967)).
                                                                                GONZALES—5

criminal statute.”9 But even in light of this newly created exception, the Cady Court

acknowledged that the Fourth Amendment requires only reasonableness.10

       In recognizing the community-caretaking function as an exception, we stated in

Wright v. State that “[a]s a 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.”11 However, “a police officer may not properly invoke his

community caretaking function if he is primarily motivated by a non-community caretaking

purpose.”12 Whether an officer properly invoked his community-caretaking function requires

a two-step inquiry: (1) whether the officer was primarily motivated by a community-

caretaking purpose; and (2) whether the officer’s belief that the individual needs help was

reasonable.13

       To determine the reasonableness of the police officer’s belief that an individual needs

assistance, we proposed a non-exclusive list of factors that courts may consider: (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




       9
            Cady v. Dombrowski, 413 U.S. 433, 441, 447–48 (1973).
       10
            Id. at 339.
       11
            Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999) (emphasis in original).
       12
            Corbin v. State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002).
       13
            Id.
                                                                             GONZALES—6

that offered by the officer; and (4) to what extent the individual—if not assisted—presented

a danger to himself or others.14 While we have stated that the first factor is entitled to the

greatest weight, it is not always dispositive.15 “A particular level of exhibited distress may

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

factors.”16 However, the presence of unique circumstances “may swing the balance the other

way.”17 As in all Fourth Amendment cases, the facts unique to each case control its result

and, in cases involving the community-caretaking exception, may render certain Wright

factors inapplicable or afford them varying weight. The Wright factors were intended to

assist courts in determining reasonableness in this context; they are not elements of

reasonableness.18

       C. Analysis

       Because neither party contests the court of appeals’s holding that Gonzales was

seized, we assume, without deciding, that Gonzales was seized under the Fourth Amendment.

Gonzales petitioned this Court’s review of the following issue: “When an officer undertakes


       14
            Wright, 7 S.W.3d at 151–52.
       15
            Corbin, 85 S.W.3d at 277.
       16
            Id.
       17
            Id. at 277 n.6.
       18
           Accord U.S. v. Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir. 1991) (“In
community caretaking cases, as elsewhere, reasonableness has a protean quality. The term,
embodies a concept, not a constant. It cannot be usefully refined ‘in order to evolve some
detailed formula for judging cases.’”) (citing Cady, 413 U.S. at 448).
                                                                               GONZALES—7

a ‘community caretaking’ stop of a motor vehicle, but, prior to the stop, changes his mind

about the need to investigate the driver’s well being, is a subsequent detention and arrest

illegal?”19   We understand Gonzales’s initial argument, as framed in his petition for

discretionary review, to be that Officer Becker was not primarily motivated by a community-

caretaking purpose. In support, he points to Officer Becker’s statement that had Gonzales

pulled away, rather than stopping or returning to the shoulder, he would have turned off his

lights and—as the trial judge described in his findings—“not have tried to stop [the car] or

pull [the car] over.” Even acknowledging Officer Becker’s response to this hypothetical

situation, the trial judge concluded that he was primarily motivated by his public-safety role.

We see no reason to second-guess the trial judge’s determination of an issue that is supported

by the record and depends so much on credibility and demeanor.20

       Despite Gonzales’s framing of this issue, the focus of his argument is whether Officer

Becker’s exercise of his community-caretaking function was reasonable, and it centers on the

court of appeals’s alleged misapplication of the Wright factors. Gonzales asserts that,

“Officer Becker’s belief that [he] needed help was unreasonable because [Officer Becker]

did not have sufficient information to reach that conclusion.” 21



       19
            Pet. for Discretionary Review 3; Appellant’s Brief at 6.
       20
         See Corbin, 85 S.W.3d at 277 (holding that, “The trial court, as the exclusive judge
of credibility and finder of fact, could have concluded that [the officer] was primarily
motivated by community caretaking concerns.”).
       21
            Appellant’s Brief 10.
                                                                              GONZALES—8

       Officer Becker observed discernible indicia of distress upon seeing Gonzales pull off

the highway around 1:00 a.m.      Although he did not know the exact nature of Gonzales’s

distress, it was reasonable, based on the inferences from his observations and the

circumstances surrounding Gonzales’s stop, for Officer Becker to believe that when

Gonzales pulled off the road at this hour he was experiencing distress—mechanical, health-

related, or otherwise. In evaluating reasonableness in this context, courts have never required

an officer to know, with any degree of certainty, the specific distress an individual may be

suffering.22 Instead, the proper analysis—as cast by Wright—is an objective one focusing

on what the officer observed and whether the inference that the individual was in need of

help was reasonable. Additionally, these exhibited indicia of distress were compounded by

Gonzales’s location—the second Wright factor—which Officer Becker described as a fairly

isolated area.

       • It was not “heavily populated;”

       • it was on the way out of town towards the neighboring city;

       • there were no houses nearby;

       • there were only a few businesses in the area; and

       • there was minimal traffic on the highway at that hour.



       22
           See, e.g., Corbin, 85 S.W.3d at 278 (examining whether the “indications” of
distress were sufficient); Kuykendall v. State, 335 S.W.3d 429, 435 (Tex. App.—Beaumont
2011, pet. ref’d) (finding reasonableness in officers’ making contact “to make sure the driver
is okay, make sure they are not having any kind of medical problem . . . . If they are broke
down.”).
                                                                                GONZALES—9


          The third and fourth Wright factors respectively weigh whether Gonzales was alone

or had access to assistance apart from Officer Becker’s and to what extent Gonzales, if not

assisted, presented a danger to himself or others. The record is unclear whether Officer

Becker knew, or could even see, how many people were in Gonzales’s vehicle. But as to

Gonzales’s access to assistance, the record is clear that Gonzales’s location, the time of night,

and the light traffic passing by significantly limited his access to assistance.

          The fourth Wright factor’s application to these facts is less straight-forward. We find

that this factor should be afforded little weight in light of the unique facts presented by this

record. While Officer Becker witnessed indicia of distress, he was unaware of Gonzales’s

precise distress, much less whether the distress rose to a level of danger to Gonzales or

others.        As applied here, this factor would force us to assume that danger always

accompanies witnessed distress. But in this case, Officer Becker could have reasonably

concluded that Gonzales was suffering from distress resulting from car trouble, a flat tire, or

running out of gas—a distress no less significant to an officer’s function as a public servant.23


          23
          See A.B.A., Criminal Justice Section, Standards on Urban Police Function, 1-2.2
(2d ed. 1980), available at
http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_stan
dards_urbanpolice.html (“In assessing appropriate objectives and priorities for police service,
local communities should initially recognize that most police agencies are currently given
responsibility, by design or default, to:
       ...
       (e) facilitate the movement of people and vehicles
       ...
       (i) create and maintain a feeling of security in the community
       ...
                                                                            GONZALES—10
Because of the factor’s awkward fit to the circumstances as observed by Officer Becker at

the time he seized Gonzales, it should be afforded little weight in this case.

                                           Conclusion

       We hold that Officer Becker reasonably exercised his community-caretaking function

in seizing Gonzales because, under the totality of the circumstances, it was reasonable to

believe Gonzales was in need of help.24 Gonzales’s motion to suppress was properly denied.

We affirm the court of appeals’s judgment.




DATE DELIVERED: June 27, 2012

PUBLISH




       (k) provide other services on an emergency basis.”)
       24
            See Wright, 7 S.W.3d at 151.
