


 
 
 
 
 
COURT OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT
WORTH
 
 
NO. 2-09-391-CR
 
 
ALICIA
 MARGUERITE MUNOZ                                                          APPELLANT
 
V.
 
THE
 STATE OF TEXAS                                                                             STATE
 
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FROM COUNTY
CRIMINAL COURT NO. 2 OF DENTON
COUNTY
 
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MEMORANDUM OPINION[1]
 
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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’ 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.
          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 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
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 “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 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.).
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.—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 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 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




[1]See Tex. R. App. P. 47.4.


[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.


