                        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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                             DISSENTING OPINION

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                                 I. Introduction

      I respectfully dissent. The majority fails to view the evidence and all its

reasonable inferences in the light most favorable to the trial court’s denial of

Appellant Cameron Byram’s motion to suppress and fails in its analysis of the

community-caretaking exception to conduct an objective review focusing on what

Officer Figueroa observed.
                                   II. The Facts

      At the motion-to-suppress hearing, Fort Worth Police Officer Figueroa was

the only witness. He testified that on July 4, 2013, at approximately 5:30 p.m., he

was patrolling the bar district in downtown Fort Worth. Because it was a holiday,

there was “a lot of partying” going on and a lot of vehicle and pedestrian traffic.

Officer Figueroa stopped his patrol car at a red light at the intersection of 4th

Street and Houston Street. He had his windows down, and a black Chevy SUV

pulled up at the light “right next” to the driver’s side of Officer Figueroa’s patrol

car. The SUV had its passenger-side window “rolled all the way down” giving

Officer Figueroa an unobscured view into the SUV. Officer Figueroa looked over

at the SUV and noticed a female hunched over in the front seat. He smelled the

odor of alcohol wafting from the vehicle. The female passenger was not moving

and Officer Figueroa was concerned that she was unconscious, had alcohol

poisoning, or possibly needed medical attention. Officer Figueroa could see the

driver of the SUV and “yelled over to him,” asking if the female passenger was

okay. Officer Figueroa had no doubt that the SUV’s driver heard him yell, but the

driver ignored Officer Figueroa and “just look[ed] forward.”       The light turned

green; the driver ignored Officer Figueroa and drove off. This raised a further

concern to Officer Figueroa that the SUV driver was trying to avoid contact with

police; typically, people respond to questions from police officers.

      Because he was concerned about the female passenger, Officer Figueroa

initiated a traffic stop at the 400 block of West 4th Street. When he approached


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the driver’s side of the SUV, he observed that the front-seat female passenger

had vomited all over herself and the passenger side of the SUV and that she was

barely conscious. Officer Figueroa determined that the passenger “had some

sort of medical problem” and “immediately” called Medstar.             An ambulance

arrived within two minutes. Officer Figueroa determined that the SUV’s driver,

Byram, was intoxicated and arrested him.

                              III. Standard of Review

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

bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.

Crim. App. 2000).      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. State v.

Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Therefore, we give almost

total deference to the trial court’s rulings on (1) questions of historical fact and (2)

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

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

However, when the trial court’s rulings do not turn on the credibility and

demeanor of the witnesses, we review de novo a trial court’s rulings on mixed

questions of law and fact.      Id.   When the trial court does not make explicit

findings of historical facts, as in the instant case, we review the evidence in the

light most favorable to the trial court’s ruling and assume the trial court made

implicit findings of fact supporting its ruling, so long as those findings are

supported in the record. Carmouche, 10 S.W.3d at 327–28.


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   IV. The Community-Caretaking Exception to the Warrant Requirement

      The law is well settled that, even without reasonable suspicion or probable

cause that an offense has been committed, a police officer may reasonably seize

an individual through the exercise of his community-caretaking function. See,

e.g., Gonzales v. State, 369 S.W.3d 851, 854–55 (Tex. Crim. App. 2012) (holding

community-caretaking exception applied when police officer observed vehicle

pull onto shoulder of road in isolated area and pulled in behind vehicle to “see if

everything was okay”); Wright v. State, 7 S.W.3d 148, 151–52 (Tex. Crim. App.

1999) (holding community-caretaking exception applied when police officer

observed front-seat passenger leaning out window of moving car and vomiting).

As 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. Wright, 7 S.W.3d at 151.

      Determining     whether     an    officer   has     properly    invoked    the

community-caretaking function is a two-step process. Corbin v. State, 85 S.W.3d

272, 277 (Tex. Crim. App. 2002).       First, the reviewing court must determine

whether the officer was primarily motivated by a community-caretaking purpose.

Id. Second, the court must determine whether the officer’s belief that assistance

was required was reasonable. Id. Courts consider four nonexclusive factors in

determining whether the officer’s belief that the defendant needed help was

reasonable: (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


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access to assistance other than that offered by the officer; and (4) to what extent

the individual, if not assisted, presented a danger to himself or others. Id.

                                    V. Analysis

      Under the first prong of the community-caretaking analysis, the trial court

here implicitly found that when Officer Figueroa stopped the SUV, he was

primarily motivated by a community-caretaking purpose.1 The evidence supports

this implicit finding; Officer Figueroa testified that he stopped the SUV because of

his concern for the female passenger.2 See id. (“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.”).

      Under the second pong of the community-caretaking analysis, the trial

court implicitly found that, given the totality of the circumstances, Officer

Figueroa’s belief that assistance was required was reasonable. Viewed in the

light most favorable to the trial court’s ruling, the evidence presented at the

suppression hearing established that at approximately 5:30 p.m. on the Fourth of

July holiday, the female front-seat passenger was hunched over and not moving

in a vehicle that smelled of alcohol and was being driven in the “bar district” of

downtown Fort Worth by a man who was unconcerned about her condition and

refused to respond to Officer Figueroa’s inquiry about the woman’s status.

      1
       The trial court issued no express findings of fact or conclusions of law.
      2
       Byram does not challenge this component of the community-caretaking
exception.


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Looking to the four nonexclusive factors to assess the reasonableness of Officer

Figueroa’s belief that the female passenger needed assistance, the nature and

level of the female’s distress was significant––she was not moving and appeared

unconscious. The female’s location––in a vehicle driven by a man who appeared

unconcerned about her well-being––was precarious. Her access to assistance

was doubtful for this same reason––the man driving the SUV exhibited no

concern about his passenger in response to Officer Figueroa’s query about her

condition.3 And the female was a danger to herself; she appeared comatose and

incapable of asking for help.    Thus, all four factors––the female’s level of

distress, her location, her lack of access to assistance, and the danger to

herself––support the reasonableness of Officer Figueroa’s belief that she needed

assistance. Based on this objective analysis focusing on what Officer Figueroa

observed, I would hold that the trial court properly determined that Officer

Figueroa’s belief that the female passenger needed assistance under his




      3
       The majority points out that hospitals were nearby and that the female
was not alone. But these two facts do not make Officer Figueroa’s decision to
stop the SUV less reasonable because Byram ignored Officer Figueroa’s
question concerning the female’s condition and exhibited no concern about her,
which gave rise to a reasonable inference that he had no intention of providing
assistance. See Flores v. State, No. 04-13-00548-CR, 2014 WL 7340279, at *3
(Tex. App.—San Antonio Dec. 23, 2014, no pet.) (mem. op., not designated for
publication) (holding community-caretaking exception applied when police officer
observed car parked in McDonald’s parking lot at 3:00 a.m. even though drive-
through lane was open and employees were inside the restaurant because “there
were no signs that anyone from the restaurant was assisting [the driver]”).


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community-caretaking responsibilities was reasonable under the totality of the

circumstances. See Gonzales, 369 S.W.3d at 856.

      Accordingly, after viewing the evidence and the reasonable inferences

from the evidence in the light most favorable to the trial court’s ruling, I would

hold that the trial court did not abuse its discretion in determining that Officer

Figueroa was primarily motivated by community-caretaking concerns and

reasonably believed that assistance was required. See, e.g., Lollie v. State, 465

S.W.3d 312, 315–17 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding

community-caretaking exception applied to officer’s decision to pull over car

driving slowly on isolated, dark road). Thus, the community-caretaking exception

to the warrant requirement applied.

                                VI. Conclusion

      For the reasons set forth above, I would overrule Byram’s sole issue and

affirm the trial court’s denial of his motion to suppress.4 Because the majority

does not, I dissent.

                                                  /s/ Sue Walker
                                                  SUE WALKER
                                                  JUSTICE

PUBLISH

DELIVERED: October 15, 2015

      4
       Because I would affirm the trial court’s denial of Byram’s motion to
suppress based on the community-caretaking exception, I would not reach the
State’s alternative argument that the stop was supported by reasonable
suspicion.


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