                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-09-00437-CR


JOHN MURRAY                                                    APPELLANT
BENNETT

                                          V.

THE STATE OF TEXAS                                                  STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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                                   I. Introduction

      In a sole point, Appellant John Murray Bennett appeals from the trial

court’s denial of his motion to suppress. We affirm.




      1
       See Tex. R. App. P. 47.4.
                            II. Procedural History

      Bennett was charged with DWI-felony repetition. The trial court carried

Bennett’s motion to suppress until trial and held a suppression hearing during

Azle Police Officer Rusty Wingate’s testimony, discussed below. Following the

hearing, the trial court denied the motion and proceeded with trial.    The jury

convicted Bennett of felony DWI, the trial court assessed five years’ confinement

as punishment, and this appeal followed.

                                III. Discussion

      Bennett argues that the trial court erred by finding that his detention was

properly supported by the evidence and by denying his motion to suppress.

A. Community Caretaking Function

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214

S.W.3d 17, 24 (Tex. Crim. App. 2007).        An officer’s community caretaking

function is a narrowly applied exception to the Fourth Amendment’s warrant

requirement. 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. However, in order to invoke his community

caretaking function, the officer’s primary motive must be concern for the

individual’s well-being. Corbin v. State, 85 S.W.3d 272, 277 (Tex. Crim. App.

2002).

                                       2
      Determining whether the officer properly invoked his community caretaking

function is a two-step process. Swaffer v. State, 258 S.W.3d 254, 260 (Tex.

App.—Fort Worth 2008, pet. ref’d) (citing Corbin, 85 S.W.3d at 277). We must

first determine whether the officer was primarily motivated by a community

caretaking purpose and then whether the officer’s belief that his assistance was

required was reasonable. Swaffer, 258 S.W.3d at 260–61. Then we consider

these non-exclusive factors: (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. The first factor is entitled to the greatest weight. Corbin, 85

S.W.3d at 277.

B. Analysis

      During the suppression hearing, Officer Wingate testified that on the night

of November 5, 2006, during his conversation with two pedestrians who had

been walking in the street ―right down a hill from where the accident occurred . . .

a vehicle . . . [a] guy stops me and says, hey, a guy wrecked out on his

motorcycle, you need to go check on him.‖ He stated that he stopped Bennett

because he thought an accident had occurred and that the parties involved were

in distress and that ―[i]f anyone had come around that blind corner where they[2]

      2
      There were two people on the motorcycle. The parties do not dispute that
Bennett was the driver.

                                         3
were stalled out there, it would have been easy for them to have been r[u]n over.‖

At the conclusion of the suppression hearing, the trial court overruled Bennett’s

objection.

      During trial, Officer Wingate added that the streets were wet and slippery

that night and that he learned of the motorcycle accident, which was about a

block away from his location, around 8:00 p.m. The DVD from his patrol unit’s

dashboard camera, which was admitted in evidence and published to the jury

during his testimony, shows that the roads were wet, that it was very dark, that

Bennett pulled into a parking lot shortly after restarting his motorcycle, and that a

highway road sign warns of curves in the road just beyond the parking lot

entrance.

      The trial court reasonably could have found that Officer Wingate was

primarily motivated by his community caretaking function because Officer

Wingate testified that he stopped Bennett and his passenger because they

appeared to be in distress and that he ―was unsure if anyone was hurt or not.‖

See Corbin, 85 S.W.3d at 277; Chilman v. State, 22 S.W.3d 50, 55 (Tex. App.—

Houston [14th Dist.] 2000, pet ref’d).

      Furthermore, the trial court could have reasonably found that the Wright

factors support a finding that Officer Wingate acted reasonably in stopping

Bennett to determine if he needed help because Officer Wingate could have

concluded that Bennett did not have access to assistance; Bennett’s passenger

was also involved in the accident; the accident occurred at night; and,

                                         4
immediately after the accident, Bennett pulled into an empty parking lot. We

conclude that Officer Wingate’s exercise of his community caretaking function

was reasonable; therefore, the trial court did not err by denying Bennett’s motion

to suppress. We overrule Bennett’s sole point.

                                 IV. Conclusion

      Having overruled Bennett’s sole point, we affirm the trial court’s judgment.



                                                   BOB MCCOY
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

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

DELIVERED: January 27, 2011




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