                       COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH



                              NO. 2-09-391-CR


ALICIA MARGUERITE MUNOZ                                         APPELLANT

                                      V.

THE STATE OF TEXAS                                                    STATE

                                  ------------

      FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY

                                  ------------

                      MEMORANDUM OPINION1
                                  ------------

                              I. INTRODUCTION

     Appellant Alicia Marguerite Munoz was arrested and charged with driving

while intoxicated (DWI). She entered a plea of nolo contendere, and the trial

court sentenced her to 120 days‘ confinement and a $600 fine.      The court

suspended the jail portion of the sentence and placed her on twelve months‘



     1
      See Tex. R. App. P. 47.4.
community supervision. Munoz now appeals. In a single point, Munoz claims

the trial court erred by denying her motion to suppress. We will affirm.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

      At 2:46 a.m. on March 28, 2008, Carrolton Police Officer Geoff Smyder

observed Munoz traveling on Hebron Parkway at twenty-five miles per hour in a

posted forty-five miles-per-hour zone. Officer Smyder then observed Munoz pull

into the small, dimly lit parking lot of Discount Moving Boxes and stop for twenty

to thirty seconds with her car running. The parking lot has only one ingress and

egress onto Hebron. Believing Munoz was lost and concerned for her welfare,

Officer Smyder pulled his patrol vehicle into the parking lot, activated his

overhead lights, and approached Munoz‘s vehicle to offer assistance. Munoz

was alone in her vehicle. She rolled down her window as Officer Smyder was

approaching her vehicle. The officer asked her if she was lost, and she replied

that she was trying to get home. Immediately upon speaking with Munoz, Officer

Smyder noticed that her speech was very slurred and that a strong odor of

alcohol emanated from her breath.       Officer Smyder then detained Munoz to

investigate her for DWI. He requested a back-up officer, and one arrived shortly.

Officer Smyder administered the horizontal gaze nystagmus test, the walk and

turn test, and the one leg stand test on Munoz. Munoz failed all three field

sobriety tests, and Officer Smyder arrested her for DWI. She later agreed to give

a specimen of her breath. Two separate tests indicated that she had a BAC of

.123 and .124.

                                         2
         Munoz filed a motion to suppress, complaining that Officer Smyder had

detained her without reasonable suspicion or probable cause and had arrested

her without a warrant. Officer Smyder was the sole witness to testify at the

suppression hearing.      There was not an in-car video for the court to review;

Officer Smyder testified that his video recorder was probably not working at the

time and that he was unaware whether the back-up officer who responded to the

scene had activated his video recorder. At the conclusion of the hearing, the trial

court took the motion to suppress under advisement and requested that the

parties file bench briefs on the validity of the detention. Both parties did so, and

Munoz requested findings of fact and conclusions of law, which the trial court

filed.

         The trial court denied Munoz‘s motion to suppress and found that, given

the totality of the circumstances, a reasonable person could have believed that

Munoz was in need of help and found that Officer Smyder acted reasonably

when he stopped Munoz‘s vehicle out of concern for her welfare. In addition, the

trial court found that Officer Smyder‘s detention of Munoz fell within the

community caretaking exception to the warrant requirement of the Fourth

Amendment.

                                  III. MOTION TO SUPPRESS

         In her sole point, Munoz complains that the trial court erred by denying her

motion to suppress because Officer Smyder had no legitimate reason for

stopping her vehicle. She contends that there was no evidence of an emergency

                                           3
or medical need that would have prompted a reasonable officer to initiate the

detention.

                                 A. Standard of Review

      We review a trial court‘s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court‘s decision, we do not engage in our own factual

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

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

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court‘s rulings on (1)

questions of historical fact, even if the trial court‘s determination of those facts

was not 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.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court‘s rulings on those



                                         4
questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      When the trial court makes explicit fact findings, we determine whether the

evidence, when viewed in the light most favorable to the trial court‘s ruling,

supports those fact findings. State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim.

App. 2006).    When the trial court grants a motion to suppress and files

accompanying findings of fact and conclusions of law, and the sole witness at the

motion to suppress hearing is the arresting officer, the only question before us is

whether the trial court properly applied the law to the facts it found. See State v.

Gray, 158 S.W.3d 465, 467, 469 (Tex. Crim. App. 2005); Guzman, 955 S.W.2d at

86–87, 89.

                      B. Community Caretaking Function

      The Fourth Amendment to the United States Constitution protects against

unreasonable searches and seizures.          U.S. Const. amend. IV. An officer‘s

community caretaking function is a reasonable exception to the warrant

requirement of the Fourth Amendment, and the exception is narrowly applied.

Wright v. State, 7 S.W.3d 148, 151–52 (Tex. Crim. App. 1999).            Under the

community caretaking exception, an officer may stop and assist an individual

whom a reasonable person would believe is in need of help, given the totality of

the circumstances. Id. Reasonable suspicion or probable cause that an offense

has been committed is not required. Corbin v. State, 85 S.W.3d 272, 277 (Tex.

Crim. App. 2002). In fact, an officer‘s community caretaking function must be

                                         5
―totally divorced from the detection, investigation, or acquisition of evidence

relating to the violation of a criminal statute.‖ Cady v. Dombrowski, 413 U.S. 433,

441, 93 S. Ct. 2523, 2528 (1973). Thus, ―a police officer may not properly invoke

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

community caretaking purpose.‖      Corbin, 85 S.W.3d at 277 (citing Wright, 7

S.W.3d at 151).

      Determining whether the officer properly invoked his community caretaking

function is a two-step process. State v. Woodard, No. 02-09-00052-CR, 2010

WL 1268035, at *3 (Tex. App.—Fort Worth Apr. 1, 2010, pet. filed) (citing Corbin,

85 S.W.3d at 277); Swaffar v. State, 258 S.W.3d 254, 260 (Tex. App.—Fort

Worth 2008, pet. ref‘d) (citing Corbin, 85 S.W.3d at 277). First, the reviewing

court must determine whether the officer was primarily motivated by a community

caretaking purpose. Woodard, 2010 WL 1268035, at *3. Second, the court must

determine whether the officer‘s belief that his assistance was required was

reasonable. Id.

      To determine whether an officer acted reasonably in exercising his

community caretaking function, the following list of non-exclusive factors may be

considered: (1) the nature and level of distress exhibited by the individual; (2)

the individual‘s location; (3) whether the individual was alone or had other access

to assistance besides that of the officer; and (4) to what extent the individual, if

not assisted, presented a danger to himself or others. Wright, 7 S.W.3d at 151–

52. ―Because the purpose of the community caretaking exception is to allow an

                                         6
officer to ‗seize‘ and assist an individual whom he reasonably believes is in need

of help, the first factor is entitled to the greatest weight.‖ Corbin, 85 S.W.3d at

277. ―The greater the nature and level of distress exhibited, the more likely the

police involvement will be a reasonable exercise of the community caretaking

function.‖     Id.   However, the weight of the first factor will not always be

dispositive, and the other three remaining factors, and any other relevant factors,

help to define the first factor. Id.

             C. Community Caretaking Function Was Properly Invoked

      Here, regarding the first step––determining whether Officer Smyder was

primarily motivated by his community caretaking function––no evidence in the

record suggests that Officer Smyder was motivated by any other purpose than

one of community caretaking.           He testified that he was not concerned with

whether Munoz was engaged in, or about to be engaged in, any type of criminal

activity, that he thought Munoz was lost—although he stated in his report that he

stopped her for a ―welfare check‖ because it ―sounded better‖—and that her

safety or well-being was his primary concern. The trial court found that Officer

Smyder‘s testimony was ―credible, persuasive, and straightforward.‖ The trial

court reasonably could have found that Officer Smyder was primarily motivated

by his community caretaking function. See Corbin, 85 S.W.3d at 277; Gibson v.

State, 253 S.W.3d 709, 715 (Tex. App.—Amarillo 2007, pet. ref‘d); Franks v.

State, 241 S.W.3d 135, 144 (Tex. App.—Austin 2007, pet. ref‘d); Bilyeu v. State,

136 S.W.3d 691, 698 (Tex. App.—Texarkana 2004, no pet.).

                                            7
      We next determine whether the trial court properly applied the law to its

factual findings regarding whether Officer Smyder reasonably believed his

assistance was required. Applying the first Wright factor (the nature and level of

distress exhibited by Munoz), Munoz was traveling at almost half the posted

speed limit, twenty-five miles per hour in a forty-five mile-per-hour zone.

Although there is not a posted minimum speed limit on Hebron Parkway and

driving below the speed limit is not a traffic violation, a reasonable person could

view driving at almost half the posted speed limit as a sign of distress. See

Bilyeu, 136 S.W.3d at 698 (holding officers justified in believing significant level

of distress exhibited when defendant traveled at ten miles per hour, which was

fifteen miles per hour less than the posted speed limit); Ortega v. State, 974

S.W.2d 361, 364 (Tex. App.—San Antonio 1998, pet. ref‘d) (holding stop fell

within community caretaking exception where defendant traveled between

eighteen and twenty miles per hour, less than half of the posted fifty-miles-per-

hour speed limit); see also Tex. Dep’t of Pub. Safety v. Svoboda, No. 04-05-

00796-CV, 2006 WL 1684793, at *1, *3 (Tex. App.—San Antonio June 21, 2006,

pet. denied) (mem. op., not designated for publication) (holding community

caretaking function was justified when defendant was traveling twenty miles per

hour under the speed limit in the early hours of the morning).

      Additionally, assisting a driver who appears to be lost—as Munoz

appeared to Officer Smyder—can also fall within an officer‘s community

caretaking function. See Chilman v. State, 22 S.W.3d 50, 53, 55 (Tex. App.—

                                         8
Houston [14th Dist.] 2000, pet. ref‘d) (holding exception applied when officer

detained occupants to possibly provide directory assistance because they

appeared lost); but see Salinas v. State, 224 S.W.3d 752, 755–57 (Tex. App.—

San Antonio 2007, pet. ref‘d) (holding exercise of function was not objectively

reasonable when officer thought driver was lost because he pulled further out

into a T-intersection than normal before turning). Here, the trial court found that

―[t]he unusually low speed that [Munoz] was traveling and the fact that [she]

pulled into a parking lot of a closed business indicated a level of distress that led

Officer Smyder to reasonably believe that she was lost and in need of

assistance.‖ Therefore, the first Wright factor supports the application of the

community caretaking function.

      Regarding Munoz‘s location (the second Wright factor), Munoz stopped in

a closed business‘s ―small and dimly lit‖ parking lot ―with only one ingress and

egress onto Hebron Parkway.‖ Munoz‘s location also supports the application of

the community caretaking function. See Morfin v. State, 34 S.W.3d 664, 667

(Tex. App.—San Antonio 2000, no pet.) (holding exception applied when officer

stopped car in a dark, high crime area, even when there were multiple

passengers and no one exhibited any signs of distress).

      Regarding whether Munoz was alone or had access to assistance (the

third Wright factor), the record indicates, and the trial court found, that Munoz

was alone in her car and that she ―had no access to assistance independent of

Officer Smyder.‖ Officer Smyder testified that there was a house next to the

                                         9
isolated parking lot but that no one was outside the house at that time of night.

There were also businesses and churches nearby, but all were closed.

Therefore, it was not unreasonable for Officer Smyder to conclude that Munoz

did not have access to assistance. See, e.g., Doiron v. State, 283 S.W.3d 71,

75 (Tex. App.—Beaumont 2009, no pet.) (holding community caretaking

exception applied when one of the four factors supporting the stop was that

defendant was alone in his vehicle with no one but the officer to lend him aid);

Bilyeu, 136 S.W.3d at 698 (holding stop was within community caretaking

function when defendant was traveling alone in her vehicle fifteen miles per hour

under the posted speed limit); see also Yocom v. State, No. 02-03-00181-CR,

2004 WL 742888, at *7 (Tex. App.—Fort Worth Apr. 8, 2004) (mem. op., not

designated for publication) (holding community caretaking exception applied

when one of the four factors supporting the stop was that defendant was alone in

his vehicle, asleep or unconscious, and stopped at a closed business late at

night with no other cars around), pet. ref’d, 149 S.W.3d 159 (2004).

      Finally, the fourth Wright factor––whether Munoz posed a danger to herself

or others if not assisted––weighs against the application of the community

caretaking function. Officer Smyder testified that he did not see anything to

indicate that Munoz was a danger to herself or others, and the trial court did not

make any historical finding of fact on whether Munoz appeared to be in danger.

However, not all factors must support the application of the exception in



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determining whether the officer acted reasonably in exercising his community

caretaking function. See Corbin, 85 S.W.3d at 277; Wright, 7 S.W.3d at 152.

      Applying the Wright factors to the facts found by the trial court, we hold

that Officer Smyder‘s exercise of his community caretaking function was

reasonable and that the trial court properly applied the law to the historical facts it

found and did not err in denying Munoz‘s motion to suppress. 2 See Gray, 158

S.W.3d at 467, 469; Guzman, 955 S.W.2d at 86–87, 89. We therefore overrule

Munoz‘s sole point.

                                  IV. CONCLUSION

      Having overruled Munoz‘s sole point, we affirm the trial court‘s judgment.



                                                     SUE WALKER
                                                     JUSTICE


PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 19, 2010




      2
       Because we affirm the trial court‘s denial of the motion to suppress on the
ground that the community caretaking exception applies, we do not reach the
State‘s argument that this was a voluntary encounter and not subject to Fourth
Amendment protection. See Tex. R. App. P. 47.1.
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