                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00284-CR

                                     Nicole Duffin WINDHAM,
                                             Appellant

                                                 v.
                                             The State of
                                        The STATE of Texas,
                                              Appellee

                    From the 216th Judicial District Court, Bandera County, Texas
                                     Trial Court No. CR12-066
                         The Honorable N. Keith Williams, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: February 26, 2014

AFFIRMED

           Nicole Duffin Windham was charged with driving while intoxicated. The trial court denied

Windham’s pre-trial motion to suppress her seizure by police. The trial court entered findings of

fact and conclusions of law, concluding that police seized Windham pursuant to the “community

caretaking” exception to the Fourth Amendment’s warrant requirement and that police thereafter

developed reasonable suspicion to investigate her for driving while intoxicated. Pursuant to a plea

agreement, Windham pled guilty to driving while intoxicated and was sentenced to two years’

imprisonment, assessed a fine of five hundred dollars, and her driver’s license was suspended. In
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one issue on appeal, Windham contends the trial court abused its discretion in denying her motion

to suppress.

                                         BACKGROUND

       At 8:25 p.m. on April 3, 2012, the Bandera County Sheriff’s Department received a report

of an unresponsive person in a car parked in the parking lot next to the Bandera County Emergency

Medical Services building. The report was made by EMS employee Cindy Martin, who pointed

out the car to the first deputy to respond, Louie Moreno. When Moreno arrived, he saw the car

matching Martin’s description and observed that no one was around the car. Moreno approached

the car and shined his flashlight into its interior. The car’s lone occupant, Windham, was lying

down on her side in the driver’s seat, which was fully reclined. The flashlight awoke Windham,

who sat up and opened the driver’s door. Moreno identified himself as a sheriff’s deputy and

asked Windham, “Are you ok?” Windham did not respond. Moreno observed that the keys were

in the ignition, the car engine was not running, but heat was emanating from the hood.

       After Moreno spoke with Windham for two to three minutes, Deputy Jose Hernandez

arrived. Hernandez immediately approached the front of Windham’s car, asked her if she knew

her vehicle’s inspection certificate was expired, and asked her several questions to test her

knowledge of her whereabouts. During this conversation with Windham, Hernandez smelled

alcohol coming from the inside of the car and noticed that Windham swayed in her seat, had

bloodshot eyes, and slurred her speech. Hernandez walked away and immediately called for Texas

Department of Public Safety Trooper Anthony Aragones to conduct a DWI investigation.

Hernandez reapproached the car and resumed his discussion with Windham who acknowledged

that she had been drinking, had pulled over, and was waiting for her mother to pick her up. At all

times during Windham’s interaction with the deputies, either Moreno or Hernandez spoke with

Windham while standing next to her car in the doorway of the open driver’s side door, blocking
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her exit. Trooper Aragones arrived and conducted a DWI investigation resulting in Windham’s

arrest.

                                       STANDARD OF REVIEW

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

in the light most favorable to the trial court’s ruling, giving “almost total deference to the trial

court’s determination of historical facts that are supported by the record, particularly if the findings

of fact are based on credibility and demeanor.” Miller v. State, 393 S.W.3d 255, 262 (Tex. Crim.

App. 2012). The same level of deference is given to “a trial court’s application of the law to the

facts or to mixed questions of law and fact, especially when the findings are based on credibility

and are supported by the record.” Id. at 263. However, mixed questions of law and fact that do

not turn on the evaluation of credibility and demeanor are reviewed de novo. Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Application of the law of search and seizure, such as

determining the reasonableness of a temporary detention, is a mixed question of law and fact that

is reviewed de novo. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013); Salinas v.

State, 224 S.W.3d 752, 756 (Tex. App.—San Antonio 2007, pet. ref’d). Additionally, all purely

legal questions are reviewed de novo. State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App.

2011). The trial court’s ruling will not be disturbed if it is correct under “any theory of law

applicable to the case.” State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000).

                                             DISCUSSION

          The State does not dispute a seizure occurred when Windham was questioned in her car by

Moreno and Hernandez. As the deputies had no warrant, the State must justify this seizure through

an exception to the Fourth Amendment’s warrant requirement. Corbin v. State, 85 S.W.3d 272,

276 (Tex. Crim. App. 2002); Travis v. State, 322 S.W.3d 747, 750 (Tex. App.—Texarkana 2010,

no pet.). The State argues that the “community caretaking” exception applies because the deputies
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reasonably believed Windham was in need of help. The State argues Windham’s detention was

further justified after Hernandez observed Windham’s expired inspection sticker. The State

contends after interacting with Windham, Hernandez also developed “at least reasonable

suspicion, if not probable cause,” to investigate Windham for driving while intoxicated. Windham

argues that the deputies unreasonably exceeded the scope of their detention as initially justified by

the community caretaking exception and that her continued detention was not justified by

reasonable suspicion.

       A. Community Caretaking Exception

        The first question presented is whether Moreno’s detention of Windham was justified

under the community caretaking exception. Without reasonable suspicion or probable cause that

an offense has been committed, a police officer may, in accordance with his community caretaking

function, “stop and assist an individual whom a reasonable person—given the totality of the

circumstances—would believe is in need of help.” Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim.

App. 1999) (citing Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). The community caretaking

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

to the violation of a criminal statute.” Corbin, 85 S.W.3d at 276–77. Rather, the exception

concerns police functions such as assisting individuals who cannot care for themselves or who are

in danger of physical harm, resolving conflicts, and reducing the opportunities for commission of

crime. Laney v. State, 117 S.W.3d 854, 860 (Tex. Crim. App. 2003) (citing Wayne R. LaFave, 3

SEARCH AND SEIZURE § 6.6 (1996)).

        To properly invoke the community caretaking exception, a police officer must (1) be

primarily motivated by his community caretaking function, and (2) reasonably believe that the

individual is need of help. Gonzales v. State, 369 S.W.3d 851, 854–55 (Tex. Crim. App. 2012).



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       The record supports the trial court’s conclusion that Moreno and Hernandez were

motivated by their community caretaking function when they engaged Windham. Both deputies

testified they approached Windham only after receiving a call concerning an unresponsive person

in possible distress and neither had reason to believe she had committed a crime. Moreno testified

the first question he asked Windham upon approaching her car was, “Are you ok?” As the Court

in Gonzales observed, “[w]e 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.” 369

S.W.3d at 855.

       Next, we must determine whether Moreno’s belief that Windham needed help was

objectively reasonable. To determine whether an officer’s belief was reasonable, we focus on what

the officer observed and consider the following non-exclusive list of factors: (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 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.

Wright, 7 S.W.3d at 151–52.

       After considering the Wright factors, the trial court concluded Moreno and Hernandez had

a reasonable belief that Windham was in need of assistance and that the community caretaking

exception was properly invoked. Windham argues that her detention, although initially justified,

became unreasonable “almost immediately” because she did not exhibit any distress, was lucid,

and was able to answer Moreno’s questions. Windham further argues that her location—in a

parked car next to an EMS facility—significantly undermines the application of the community

caretaking exception because, even though she was alone, she could have easily sought help if it

were needed. Windham also argues that she did not pose a danger to herself or others because she

expressed no desire to leave the location on her own.
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       Although the Wright factors were “intended to assist courts in determining reasonableness

in this context[,] they are not elements of reasonableness.” Gonzales, 369 S.W.3d at 855. “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.” Id. The first Wright factor—the nature and level of the distress exhibited

by the individual—is afforded the greatest amount of weight because “[t]he greater the nature and

level of distress exhibited, the more likely the police involvement will be a reasonable exercise of

the community caretaker function.” Corbin, 85 S.W.3d at 277. “A particular level of distress may

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

factors.” Id.

       There is no question that responding to a report of an unresponsive person in a parked car,

regardless of its location, falls within a police officer’s community caretaking function. The facts

unique to this case, however, require us to determine whether Moreno’s continued belief that

Windham was in need of help was reasonable up until the time that Hernandez interacted with

Windham. In short, we must determine whether the length of the detention was reasonable.

       “A seizure under the Fourth Amendment must be objectively reasonable in light of the

particular circumstances of the case.” Corbin, 85 S.W.3d at 276; see Cady, 413 U.S. at 439; see

also Terry v. Ohio, 392 U.S. 1, 21–22 (1968). Accordingly, a seizure permitted on less than

probable cause, such as one under the community caretaking exception, “must be temporary and

last no longer than is necessary to effectuate [its purpose].” Florida v. Royer, 460 U.S. 491, 500

(1983); see also United States v. Garner, 416 F.3d 1208, 1213 (10th Cir. 2005). The purpose of a

seizure under the community caretaking exception is to render help to those in need of it. When

it is unclear whether an individual continues to be in need of help, a police officer must be given



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a reasonable amount of time to diligently pursue an inquiry necessary to make that determination.

See Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997).

        We cannot hold that Moreno’s brief detention, lasting only two to three minutes,

unreasonably exceeded the time necessary to determine whether Windham needed help. Moreno

testified that he responded to a call of an unresponsive person and found Windham lying down in

the car. She woke up and opened the door. When Moreno asked Windham if she was ok, she did

not respond. Moreno believed Windham was disoriented and unsure of her whereabouts. He

asked Windham for her driver’s license, and she searched for it unsuccessfully for several minutes.

It can be reasonably inferred, based on the totality of the circumstances, Windham was also

experiencing mental and physical impairments resulting from intoxication during this time. When

Hernandez arrived and approached Windham, Moreno can be heard on Hernandez’s audio

recording asking Windham if she had been sleeping. She responds affirmatively. This exchange

establishes that at that point in the interaction, Moreno was still making inquiries related to

Windham’s welfare. At no time did Moreno ask any questions or take any action consistent with

the investigation of a criminal offense. Based on this record, it is reasonable to conclude that the

entirety of Moreno’s brief interaction with Windham consisted of Moreno determining whether

Windham was in need of help. Accordingly, the trial court did not abuse its discretion when it

concluded that Windham’s initial detention was justified by the community caretaking exception.

B. Reasonable Suspicion for Continued Detention

        Windham’s detention by Moreno was justified under the community caretaking exception

when Hernandez arrived and interacted with her. 1 We must now determine whether her continued


1
  Although Hernandez was not present with Moreno to evaluate Windham’s level of distress, he was nevertheless
justified in participating in Windham’s detention once he arrived on the scene. See Hoag v. State, 728 S.W.2d 375,
380 (Tex. Crim. App. 1987) (“Where there has been some cooperation between police officers, the cumulative
information known to the cooperating officers at the time of the stop is to be considered in determining whether

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detention after that point was justified by reasonable suspicion. The trial court concluded, “[a]fter

Hernandez spoke with Windham, Hernandez had a sufficient reasonable suspicion to detain

Windham to investigate whether Windham was driving while intoxicated.” The State argues that

after approaching Windham, Hernandez had a reasonable suspicion that she had committed two

offenses: driving with an expired inspection certificate and driving while intoxicated. Citing Texas

Dept’t of Public Safety v. Allocca, 301 S.W.3d 364 (Tex. App.—Austin 2009, pet. denied),

Windham contends that Hernandez did not have reasonable suspicion to continue detaining her

because the act of sleeping in a parked vehicle with the engine turned off does not establish a

reasonable suspicion that an individual has “operated” the vehicle. The State distinguishes Allocca

on the grounds that it arose from an administrative hearing and involved a different standard of

review. 2

        “To demonstrate reasonable suspicion, the State ha[d] to present to the trial court specific

articulable facts, which, when combined with rational inferences from those facts, led [Hernandez]

to reasonably suspect in light of [his] experience and knowledge that [Windham] had engaged,

was engaging, or was soon to engage in criminal activity.” LeBlanc v. State, 138 S.W.3d 603, 605

(Tex. App.—Houston [14th Dist.] 2004, no pet.) (citing Woods v. State, 956 S.W.2d 33, 35, 38

(Tex. Crim. App. 1997)). This determination is an objective one considering the totality of the

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

        “A person commits an offense if the person is intoxicated while operating a motor vehicle

in a public place.” TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2013). It is also an offense to

“operate” a motor vehicle with an inspection certificate that has been expired for more than five



reasonable suspicion exists.”); see also Illinois v. Andreas, 463 U.S. 765, 771 n.5 (1983) (“where law enforcement
authorities are cooperating in an investigation . . . knowledge of one is presumed shared by all.”).
2
  Allocca involved review of an administrative driver’s license revocation proceeding based on a “substantial-
evidence” standard of review. Allocca, 301 S.W.3d at 367.

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days. TEX. TRANSP. CODE. ANN. § 548.602(a) (West 2011). Although “operating” is not defined

in the statute, the Court of Criminal Appeals has held that an individual operates a motor vehicle

if the “totality of the circumstances” indicates that the individual “took action to affect the

functioning of his vehicle in a manner that would enable the vehicle’s use.” Denton v. State, 911

S.W.2d 388, 390 (Tex. Crim. App. 1995); see Kirsch v. State, 357 S.W.3d 645, 649–50 (Tex. Crim.

App. 2012). “[W]hile driving does involve operation, operation does not necessarily involve

driving.” Denton, 911 S.W.2d at 389.

          In Allocca, the police responded to a call of a suspicious car parked in the parking lot of a

closed Jiffy Lube and discovered Allocca asleep in the driver’s seat. The engine was running to

facilitate air conditioning, the headlights were turned off, the car was in park, Allocca was fully

reclined in the seat, and his feet were not touching the pedals. 301 S.W.3d at 368–69. The Austin

Court of Appeals held police did not have probable cause to arrest Allocca for DWI because the

totality of the circumstances did not establish that he had operated the car. The court rejected the

State’s argument that police had probable cause to believe that Allocca fell asleep after driving to

the parking lot intoxicated, holding, “[w]hile an officer need not observe an individual actually

driving a vehicle in order to develop probable cause to believe the individual had been driving

while intoxicated, the mere act of sitting in a legally parked vehicle while intoxicated does not

necessarily establish probable cause absent some other factor, such as a recent collision or

bystander reports, indicating that the accused actually drove the vehicle.” Id. at 369 (emphasis

added).

          Most notably, the Court’s holding in Allocca concerned probable cause, not reasonable

suspicion. Id. at 367 (“[o]nly the [probable cause] factor remains in dispute in the present case, as

Allocca conceded in the administrative hearing that there was reasonable suspicion to investigate

him . . . .”). Reasonable suspicion may be established on less than what the law requires to establish
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probable cause. See Guzman, 955 S.W.2d at 87 (“[p]robable cause deals with probabilities; it

requires more than mere suspicion but far less evidence than that needed to support a conviction

or even that needed to support a finding by a preponderance of the evidence.” ); Chapnick v. State,

25 S.W.3d 875, 877 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (after establishing

reasonable suspicion for a traffic offense, additional facts required to establish probable cause

necessary to arrest a defendant for driving while intoxicated). The Allocca court emphasized there

was no evidence the car had been recently operated, noting there were no bystander reports or

evidence of a collision. Additionally, there was evidence affirmatively establishing Allocca had

not operated the car. Allocca, the only witness to testify, testified that after he became intoxicated

at a bar, his girlfriend drove him to his parked car at the Jiffy Lube, where he was employed. Id.

at 366.

          Although Hernandez likely did not develop probable cause during his initial contact with

Windham, he could have reasonably believed that Windham had operated her vehicle. Moreno

testified he could feel heat emanating from the car hood without touching the hood. When Moreno

arrived, Windham’s car engine was off, but the keys were in the ignition. Windham was alone

and seated in the driver’s seat and appeared to be intoxicated. There were no alcoholic containers

visible in the car to indicate Windham had become intoxicated after she parked. Based on the

totality of these circumstances and rational inferences therefrom, Hernandez could have

reasonably believed Windham had recently operated the car. See Warren v. State, 377 S.W.3d 9,

14 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (recent operation of vehicle indicated by

warmth of hood).       Additionally, Hernandez could have reasonably believed Windham was

intoxicated because he smelled a strong odor of alcohol coming from the car, Windham’s eyes

were bloodshot, she was slurring her words, and was swaying in her seat. See State v. Priddy, 321

S.W.3d 82, 88 (Tex. App.—Fort Worth 2010, pet. ref'd); see also Rubeck v. State, 61 S.W.3d 741,
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745 (Tex. App.—Fort Worth 2001, no pet.); see also Cotton v. State, 686 S.W.2d 140, 142 n.3

(Tex. Crim. App. 1985). Thus, Hernandez developed a reasonable suspicion that Windham had

committed the offense of driving while intoxicated to justify Windham’s continued detention. This

reasonable suspicion was further bolstered by Windham’s admission several minutes later that that

she had been drinking earlier that evening at a local bar and drove to the parking lot. In addition,

Hernandez developed a reasonable suspicion that Windham committed an offense by operating

the vehicle with an expired inspection certificate. Taylor v. State, 410 S.W.3d 520, 528 (Tex.

App.—Amarillo 2013, no pet.); Dean v. State, 995 S.W.2d 846, 848 (Tex. App.—Waco 1999, pet.

ref’d).

          Windham argues that in other cases where a defendant was found sleeping in a motor

vehicle and arrested for DWI, more facts were required to establish that the defendant operated the

vehicle. See Freeman v. State, 69 S.W.3d 374, 376 (Tex. App.—Dallas 2002, no pet.) (evidence

legally sufficient to establish operation where defendant found asleep in driver’s seat of car parked

in the street with engine running, lights on, gear in “drive,” and with the tire resting against the

curb); Hearne v. State, 80 S.W.3d 677, 680 (Tex. App.—Houston [1st Dist.] 2002, no pet.)

(evidence legally sufficient to establish operation where defendant found asleep in driver’s seat of

truck parked in moving lane of traffic with engine running, gear in “park,” and defendant not

touching the pedals); State v. Savage, 905 S.W.2d 272, 274 (Tex. App.—San Antonio 1995), aff’d

933 S.W.2d 497 (Tex. Crim. App. 1996) (same). However, the instant case does not require us to

determine whether legally sufficient evidence established Windham’s operation of the vehicle.

Rather, we are to determine whether Hernandez had a reasonable suspicion that Windham had

operated her vehicle, a standard which requires far less proof than that required to establish guilt

beyond a reasonable doubt. See Guzman, 955 S.W.2d at 87. Because we conclude that Hernandez



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had a reasonable suspicion to justify Windham’s continued detention, we hold that the trial court

did not abuse its discretion by denying the motion to suppress Windham’s seizure.

                                           CONCLUSION

       The trial court did not abuse its discretion when it denied Windham’s motion to suppress.

The deputies were justified in initially detaining Windham under the exercise of their community

caretaking function and thereafter developed reasonable suspicion that she had committed the

offenses of driving while intoxicated and driving with an expired inspection certificate. The

judgment of the trial court is affirmed.

                                                 Catherine Stone, Chief Justice

DO NOT PUBLISH




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