                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00343-CR


CAMERON BYRAM                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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      FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
                   TRIAL COURT NO. 1332976

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                                  OPINION

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                               I. INTRODUCTION

      In one issue, appellant Cameron Byram appeals the trial court’s denial of

his motion to suppress, which was followed by Byram pleading guilty to driving

while intoxicated with an open container. We will reverse and remand.
                                 II. Background

      Fort Worth Police Officer Figueroa1 said that on July 4, 2013, he was in

downtown Fort Worth “conducting preventative patrol” when he found himself

stopped at a light in his patrol vehicle alongside Byram’s vehicle. Figueroa said

that his own window was down and that the passenger’s window on Byram’s

vehicle was rolled all the way down. Figueroa testified that the female passenger

in Byram’s vehicle drew his attention because she “was sitting in the passenger

seat . . . hunched over.” Figueroa averred that he “didn’t see any movement at

all [from] the female.” Given the female passenger’s posture, Figueroa averred

that he believed the passenger to be unconscious and “possibly [in need of]

some medical attention.” According to Figueroa, he suspected she might be

suffering from “alcohol poisoning.”

      Figueroa also testified that he could smell the “odor of an alcoholic

beverage coming from that vehicle.” Figueroa said that he was “maybe less than

ten feet” away from Byram’s vehicle at the time. According to Figueroa, Byram

was looking forward and not attending the female passenger. Figueroa said that

he “yelled over to [Byram] to ask him if [the female passenger] was okay” but that

Byram “ignored” Figueroa despite Figueroa’s belief that Byram could hear him.

      Figueroa testified that when the light turned green, Byram drove off.

Figueroa interpreted Byram’s actions as an attempt to “avoid contact with the


      1
       We note that Figueroa’s first name is not in the record.


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police.” Figueroa said that Byram’s actions further raised his concerns for the

passenger. Thus, Figueroa conducted a traffic stop. Figueroa said that upon

stopping Byram, he immediately checked on the passenger; that she was “barely

conscious”; and that it appeared to him that she “had some sort of medical

problem.” At that time, Figueroa said that he determined the passenger had

“vomited . . . all over the passenger side of that vehicle.” Figueroa called for

medical attention, but when they arrived, the female passenger refused their

assistance.

      Figueroa testified that Byram had not committed a traffic offense; that there

were not technical violations present on Byram’s vehicle prior to him conducting

the stop; and that the only reason he stopped Byram’s vehicle was to perform a

safety check on the passenger. Upon stopping Byram’s vehicle, Figueroa said

that he began to simultaneously conduct a safety check on the passenger and

investigate Byram for driving while intoxicated (DWI).        At the suppression

hearing, the State stipulated that the stop of Byram’s vehicle was not conducted

pursuant to a warrant and that Byram’s car was in the vicinity of several hospitals

within a five-mile radius. The trial court denied Byram’s motion to suppress.

Byram then entered a plea of guilty, and the trial court assessed punishment at

ninety days in jail and a $750 fine. The trial court then suspended Byram’s

sentence and placed him on community supervision for eighteen months. This

appeal followed.




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                                  III. DISCUSSION

      In one issue, Byram argues that the trial court erred by denying his motion

to suppress. Specifically, Byram argues that the community caretaking exception

to the Fourth Amendment does not apply to the facts of this case. The State

argues that the community caretaking exception applies in this case or, in the

alternative, that Figueroa possessed reasonable suspicion to stop Byram.

      A.    Standard of Review and Fourth Amendment Law

      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).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      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). To suppress evidence because of an

alleged Fourth Amendment violation, the defendant bears the initial burden of

producing evidence that rebuts the presumption of proper police conduct.

Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex.


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Crim. App.), cert. denied, 558 U.S. 1093 (2009).         A defendant satisfies this

burden by establishing that a search or seizure occurred without a warrant.

Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the

burden of proof shifts to the State, which is then required to establish that the

search or seizure was conducted pursuant to a warrant or was reasonable. Id. at

672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v.

State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

      Under the Fourth Amendment, a warrantless arrest is unreasonable per se

unless it fits into one of a “few specifically established and well delineated

exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135

(1993); Torres, 182 S.W.3d at 901.

      B.     Community Caretaking Exception

      The Court of Criminal Appeals has determined that a search or seizure is

not “unreasonable” when it is done pursuant to a valid exercise of the community

caretaking function. Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999)

(citing Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528 (1973)).

This exception is one of “narrow applicability.” Wright, 7 S.W.3d at 152. Indeed,

as the Court stated, “Only in the most unusual circumstances” will the community

caretaking exception be applicable. Id. In Wright, the Court provided a list of

four nonexclusive factors to be considered when deciding whether a search or

seizure is justified by this narrow exception:

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


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      (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. Even giving almost total deference to a trial court’s rulings on questions of

historical fact and application-of-law-to-fact questions that turn on an evaluation

of credibility and demeanor, our application of these factors to Byram’s case

leads us to conclude that the community caretaking exception does not apply.

      As to the first factor, the single fact “exhibited” by Byram’s passenger was

that she appeared to be passed out. It was not until after Figueroa effectuated

his stop that he learned that the passenger had vomited, and even that fact

would not have been sufficient to apply the narrow exception of community

caretaking. See Andrews v. State, 79 S.W.3d 649, 653 (Tex. App.—Waco 2002,

pet. ref’d) (holding stop not reasonable when officer observed driver stop on

shoulder, passenger open door and appear to vomit, and car drive off); see also

Wright v. State, 18 S.W.3d 245, 247 (Tex. App.—Austin 2000, pet. ref’d) (holding

stop not reasonable when officer observed passenger hang head out of window

and appear to vomit). Here, even though this factor is afforded the greatest

weight of the factors to consider, its strength is fairly low in favor of the

community caretaking exception. See Corbin v. State, 85 S.W.3d 272, 277 (Tex.

Crim. App. 2002) (“Because the purpose of the community caretaking exception



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is to allow an 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.”).

       As to the second factor, although there is evidence that Byram was in an

area where individuals might be drinking alcohol, there is nothing in the record to

demonstrate that the type of facts normally associated with this factor are present

in this case. See Morfin v. State, 34 S.W.3d 664, 666 (Tex. App.—San Antonio

2000, no pet.) (considering it significant to community caretaking exception that

vehicle approached by police was parked in “very high crime area”); see also

Chilman v. State, 22 S.W.3d 50, 55 (Tex. App.—Houston [14th Dist.] 2000, pet.

ref’d) (considering it significant that car was parked in “a spot where people

normally do not park”). In this case, the vehicle was in a location where there

were numerous people and vehicles, and as was stipulated by the State at the

suppression hearing, it was stopped at a stoplight in an area near several

hospitals within a five-mile radius. See Corbin, 85 S.W.3d at 278 (“Since there is

nothing in the record indicating that this area is isolated with little traffic and no

business or houses nearby, it cannot support the [community caretaking]

ruling.”).   This factor weighs against application of the community caretaking

exception.

       As to the third factor, Byram’s passenger was not alone. There is nothing

in the record to indicate that the passenger did not have access to assistance

independent of Figueroa.       See id. (reasoning that third factor applied when

individual was alone and without assistance other than from arresting officer).


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This factor as well weighs against application of the community caretaking

exception.

      As to the fourth factor, there is no evidence that supports that Byram’s

passenger presented a danger to herself or others. Much like in our analysis of

the first factor, the only facts relied upon by Figueroa were that the passenger

appeared “hunched over” in the passenger seat of Byram’s vehicle and that he

smelled the odor of an alcoholic beverage emitting from the vehicle. We simply

cannot conclude that the “narrow applicability” of the community caretaking

exception, when applied to a “hunched over” passenger who was in a vehicle

that smelled of an alcoholic beverage, indicates that the passenger presented a

danger to herself or others.      This factor weighs against application of the

community caretaking exception.

      We conclude that along the “community caretaking distress spectrum,” this

case strongly tends to involve no apparent distress. See Wiseman v. State,

No. 02-06-00021-CR, 2006 WL 3334171, at *7 (Tex. App.—Fort Worth Nov. 16,

2006, pet ref’d) (mem. op., not designated for publication).           Indeed, the

passenger who Figueroa said he felt needed assistance did not appear to be in

any great distress, she was located in a busy area of town where there were

nearby hospitals, she was not alone, and she did not appear to be a danger to

herself or others. See Id. (“In the community caretaking distress spectrum, the

most severe distress tends to involve solo drivers in some sort of trouble.”).




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      C.    No Reasonable Suspicion to Detain Byram

      The State argues that the trial court had an independent reason to deny

Byram’s motion to suppress. Specifically, the State argues that Figueroa had

“reasonable suspicion to stop” Byram because he was in an area and at a time

“known for excessive partying”; that the odor of alcohol was “wafting” from

Byram’s vehicle; that the female passenger was “hunched over”; and that

Byram’s decision to ignore Figueroa was “abnormal.” The State argues that the

totality of these circumstances gave rise to Figueroa having a reasonable

suspicion to stop Byram.     The State does not directly identify what “crime”

Figueroa had suspicion of.

      In support of its position, the State cites to two cases where the odor of

alcohol coupled with other behavior was found sufficient reasonable suspicion to

investigate alcohol-based offenses. Harper v. State, 349 S.W.3d 188, 192 (Tex.

App.—Amarillo 2011, pet. ref’d) (possession of marihuana and open container);

Newman v. State, No. 01-00-00106-CR, 2001 WL 279182, at *1 (Tex. App.—

Houston [1st Dist.] Mar. 22, 2001, no pet.) (op., not designated for publication)

(possession of marihuana). But the State’s reliance on these cases is misplaced.

Both Harper and Newman involved a continued detention after a vehicle had

been lawfully stopped for a traffic violation and where the detaining officers

developed reasonable suspicion upon encountering the suspects face-to-face.

Harper, 349 S.W.3d at 192 (holding officer who stopped vehicle for a non-

working taillight had probable cause to conduct warrantless search where officer


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smelled odor of alcohol and passenger admitted that there was an open

container of alcohol and marihuana in the vehicle); Newman, 2001 WL 279182,

at *1 (holding that continued detention was justified where two officers smelled

strong odor of alcohol on defendant and defendant gave suspicious answers to

questions and he appeared to not want officers to search his vehicle).

      Here, Figueroa smelled the “odor of an alcoholic beverage” from the

vantage of his vehicle in an area where admittedly there were numerous people

in Figueroa’s direct vicinity—a vicinity that Figueroa described as being a “4th of

July weekend celebration” where there was “a lot of partying” occurring. Further,

we are loathe to find that Byram’s exercise of his constitutional right to ignore a

police officer is “abnormal.” Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim.

App. 1995) (“While a law enforcement officer is free to approach a citizen and

ask questions, the citizen is also free to not answer the questions.”). And we

have already addressed that Byram’s passenger having been “hunched over”

was insufficient to support Figueroa’s stop of Byram’s vehicle.

      We do not question the good faith of Figueroa’s subjective suspicion that

Byram might have been involved in an alcohol-based offense. Nevertheless, so

long as consumption of alcohol is not illegal in and of itself, a standard permitting

or requiring detention and investigation of persons for alcohol-based offenses

solely on whether the odor of alcohol is present invites unwarranted police

intrusions into the affairs and freedom of persons. See Terry, 392 U.S. at 21–22,

88 S. Ct. at 1880.    Because of the absence of articulable facts which could


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reasonably raise a suspicion that Byram was engaged in an alcohol-based

offense, Figueroa’s stopping him violated Byram’s Fourth Amendment rights.

See Domingo v. State, 82 S.W.3d 617, 622 (Tex. App.—Amarillo 2002, no pet.)

(holding no reasonable suspicion existed to support detention when defendant's

conversation with officer occurred at 9:00 p.m. in high-crime area, defendant was

part of a group that was lawfully socializing and drinking alcohol without engaging

in disruptive or illegal activities, and the officer was not responding to or

investigating reports of criminal activity); see also Clement v. State, 461 S.W.3d

274, 282 (Tex. App.—Eastland 2015, pet. granted) (holding that State failed to

establish that police officer had probable cause to arrest defendant for driving

while intoxicated where officer had not specifically testified about any physical

observations he made of defendant’s eyes, speech, or movement, and officer

relied upon the fact that he smelled alcohol on defendant to conduct the arrest).

We hold that the trial court abused its discretion by denying Byram’s motion to

suppress.

      E.     Harm

      We further hold that because Byram was seized in violation of his

constitutional rights and he pleaded guilty only after the trial court’s denial of his

motion to suppress, the trial court’s incorrect finding caused Byram harm. See

Tex. Rule App. P. 44.2(a); see also Holmes v. State, 323 S.W.3d 163, 172–74

(Tex. Crim. App. 2009) (holding that trial court’s denial of appellant’s motion to




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suppress is deeply connected to decision to plead guilty). We sustain Byram’s

sole issue.

                                IV. CONCLUSION

      Having sustained Byram’s sole issue, we reverse the trial court’s judgment

and remand this case to the trial court for a new trial or further proceedings

consistent with this opinion. See Tex. R. App. P. 43.2(d).




                                                  /s/ Bill Meier
                                                  BILL MEIER
                                                  JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

WALKER, J., filed a dissenting opinion.

PUBLISH

DELIVERED: October 15, 2015




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