                                                                       ACCEPTED
                                                                  04-14-00658-CR
                                                       FOURTH COURT OF APPEALS
                                                            SAN ANTONIO, TEXAS
                                                              4/6/2015 4:25:34 PM
                                                                    KEITH HOTTLE
                                                                           CLERK


          No. 04-14-00658-CR
                  In the                          FILED IN
                                           4th COURT OF APPEALS
            Court of Appeals                SAN ANTONIO, TEXAS
                 For the                   4/6/2015 4:25:34 PM
     Fourth Judicial District of Texas       KEITH E. HOTTLE
                                                   Clerk
           San Antonio, Texas
       
               No. 365341
In the County Criminal Court at Law No. 12
          Of Bexar County, Texas
         
          JAMES SALDANA
              Appellant
                 V.
        THE STATE OF TEXAS
              Appellee
        
     STATE’S APPELLATE BRIEF
        
               NICHOLAS “NICO” LAHOOD
               Criminal District Attorney
               Bexar County, Texas
                         JOSHUA SOMERS
                         Assistant Criminal District Attorney
                         Bexar County, Texas
                         Paul Elizondo Tower
                         101 West Nueva Street
                         San Antonio, Texas 78205
                         Phone: (210) 335-2311
                         Fax: (210) 335-2313
                         Email: Joshua.Somers@bexar.org
                         State Bar No. 24047261
      Attorneys for the State of Texas
                  STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 39.7, the State requests oral

argument only if oral argument is requested by appellant.

                         IDENTIFICATION OF THE PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list

of names of all interested parties is provided below.

Counsel for the State:

      Nicholas “Nico” LaHood – Criminal District Attorney of Bexar County

      Joshua Somers – Assistant Criminal District Attorney on appeal

      Joshua Sandoval – Assistant Criminal District Attorney at trial

      Erica Pena – Assistant Criminal District Attorney at trial

Appellant or Criminal Defendant:

      James Saldana

Counsel for Appellant:

      James C. Oltersdorf – Attorney on appeal

      Joseph Echavarria – Attorney at trial

Trial Judge:

      Honorable Scott Roberts




                                             i
                                    TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF THE FACTS ............................................................................... 2

SUMMARY OF THE ARGUMENT ........................................................................ 3

REPLY TO APPELLANT’S SOLE POINT OF ERROR ......................................... 4

CONCLUSION AND PRAYER ............................................................................. 11

CERTIFICATE OF COMPLIANCE ....................................................................... 12

CERTIFICATE OF SERVICE ................................................................................ 13




                                                         ii
                                     INDEX OF AUTHORITIES

CASES

Amador v. State,
  221 S.W.3d 666 (Tex. Crim. App. 2007) ............................................................. 4

Cady v. Dombroski,
  413 U.S. 433 (1973) .............................................................................................. 5

Corbin v. State,
  85 S.W.3d 272 (Tex. Crim. App. 2002) ......................................................... 5, 10

Gonzales v. State,
  369 S.W.3d 851 (Tex. Crim. App. 2012) ...............................................6, 7, 9, 10

Guzman v. State,
  955 S.W.2d 85 (Tex. Crim. App. 1997) ........................................................... 4, 5

Kuykendall v. State,
  335 S.W.3d 429 (Tex. App.—Beaumont, pet. ref'd) ........................................ 8, 9

Martinez v. State,
  348 S.W.3d 919 (Tex. Crim. App. 2011) ............................................................. 4

Miller v. State,
   393 S.W.3d 255 (Tex. Crim. App. 2012) ............................................................. 4

Solano v. State
   371 S.W.3d 5s93 (Tex. App.—Amarillo 2012, no pet.) ............................7, 9, 10

State v. Woodard,
   341 S.W.3d 404 (Tex. Crim. App. 2011) ............................................................. 5

Valtierra v. State,
   310 S.W.3d 442 (Tex. Crim. App. 2010) ............................................................. 4

Wright v. State,
  7 S.W.3d 148 (Tex. Crim. App. 1999) ...................................................... 5, 6, 10

                                                              iii
RULES

TEX. R. APP. P. 9.4(i) ................................................................................................12

TEX. R. APP. P. 9.4(i)(1) ...........................................................................................12

TEX. R. APP. P. 38.2(a)(1)(A) .................................................................................... i

TEX. R. APP. P. 39.7.................................................................................................... i




                                                                iv
                                No. 04-14-00658-CR

JAMES SALDANA                             §          IN THE FOURTH DISTRICT
                                          §
VS.                                       §          COURT OF APPEALS
                                          §
STATE OF TEXAS                            §          SAN ANTONIO, TEXAS

                             BRIEF FOR THE STATE

To the Honorable Fourth Court:

      Now comes, Nicholas “Nico” LaHood, Criminal District Attorney of Bexar

County, Texas, and files this brief for the State.

                        

                          STATEMENT OF THE CASE

      Appellant was charged by information with the misdemeanor offense of

driving while intoxicated (CR 33). Trial counsel for appellant filed a motion to

suppress and a suppression hearing was held on May 14, 2014 (CR 29-32, 2 RR 1).

The court heard testimony from one witness in the hearing, Officer Christopher

Torres, and the State stipulated that the arrest was a warrantless arrest (2 RR 4-5).

At the conclusion of the hearing, the State argued that the officer acted pursuant to

his community-caretaking purpose (2 RR 30). The trial court subsequently denied

appellant’s motion to suppress (2 RR 33). On May 19, 2014, the trial court made

findings of fact and conclusions of law (3 RR 1-6), and Appellant pled guilty to

driving while intoxicated on August 13, 2014 (CR 49). Appellant’s trial counsel

                                              1
filed a notice of appeal and the presiding judge signed the trial court’s certification

of defendant’s right to appeal on the same day (CR 42, 46). An amended trial

court’s certification of defendant’s right to appeal was later signed by the presiding

judge on December 28, 2014 (CR 7).

                        

                            STATEMENT OF FACTS

      On June 26, 2011, Officer Christopher Torres with the City of Alamo

Heights, was travelling southbound on Broadway Avenue (2 RR 7).                 While

stopped at a red light with his windows down, he “heard a loud bang” and then

looked to his left and observed appellant’s pick-up truck exiting a parking lot (2

RR 7-8).      Officer Torres turned onto the 100 block of Elizabeth and saw

appellant’s vehicle “stop somewhat in the middle of the roadway” (2 RR 8).

Officer Torres next observed appellant and his passenger both exit their vehicle,

and he stopped directly behind them (2 RR 8). After appellant and his passenger

exited their vehicle, they walked to the rear of the truck (2 RR 8). At this point,

Officer Torres activated the emergency lights in his patrol vehicle (2 RR 8).

      In the suppression hearing, Officer Torres testified that he had not initiated a

traffic stop, rather he activated his lights “just to check on their welfare” (2 RR 8-

9). He testified, “I exited my vehicle, approached the defendant who was looking

in the rear of his truck. I made contact with them at first to say, you know, is

                                              2
everything okay?” (2 RR 9). In discussing his reasoning for making contact with

appellant, he explained, “When I first observed them outside of their vehicle, they

were looking at the rear of their pickup truck as if maybe to look for some damage,

which would correlate with the loud bang that I heard them possibly striking

something in the parking lot from which they exited” (2 RR 12).                Upon

encountering appellant, Officer Torres detected signs of intoxication and

conducted a DWI investigation (2 RR 9). The initial contact was made at 12:58

a.m. (2 RR 7).

      During the course of the suppression hearing, Officer Torres emphasized

that the primary purpose of the encounter was to conduct a welfare check “to make

sure that they didn’t need any type of assistance” (2 RR 12). He testified, “My

intent was to conduct a welfare check after they exited their vehicle,” and, more

specifically, that his “intent was to get close to the vehicle and observe it for any

type of damage” (2 RR 19).

                       

                      SUMMARY OF THE ARGUMENT

      The trial court did not abuse its discretion in denying appellant’s motion to

suppress. Officer Torres properly invoked his community-caretaking function,

because he was primarily motivated by a community-caretaking purpose and he

had a reasonable belief that appellant needed help. In viewing the evidence in the

                                             3
light most favorable to the trial court’s ruling, this Court should affirm the trial

court’s decision.

            REPLY TO APPELLANT’S SOLE POINT OF ERROR

I.    Standard of Review for Motions to Suppress Evidence

      Texas appellate courts review trial court decisions on motions to suppress

evidence for abuse of discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex.

Crim. App. 2011). In determining whether a trial court abused its discretion, the

reviewing court evaluates the trial court’s ruling under a bifurcated standard.

Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). The reviewing

court first views all of the evidence in the light most favorable to the trial judge’s

ruling.   Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

“[A]lmost total deference [is given] 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); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)

(explaining that courts must give the prevailing party “the strongest legitimate

view of the evidence and all reasonable inferences that may be drawn from the

evidence”). Courts also give “almost total deference . . . to a trial judge’s ruling on

mixed questions of law and fact that depend upon evaluations of credibility and

demeanor.” Guzman, 955 S.W.2d at 89. However, “when mixed questions of law

                                              4
and fact do not depend on evaluation of credibility and demeanor, [courts] review

the trial judge’s ruling de novo.” Id. In addition, “[a]ll purely legal questions are

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

2011).

II.   Applicable Law Regarding the Community-Caretaking Exception

      In Cady v. Dombroski, the United States Supreme Court established the

“community-caretaking” exception to the warrant requirement in recognizing that

police officers may contact citizens without probable cause or reasonable suspicion

that an offense has occurred “and engage in what, for want of a better term, may be

described as community caretaking functions, totally divorced from the detection,

investigation, or acquisition of evidence relating to the violation of a criminal

statute.” Cady v. Dombroski, 413 U.S. 433, 441, 447-48 (1973). The Texas Court

of Criminal Appeals recognized the community-caretaking exception in Wright v.

State, holding that “[a]s 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 v. State, 7 S.W.3d 148,

151 (Tex. Crim. App. 1999) (emphasis in original). However, “a police officer

may not properly invoke his community caretaking function if he is primarily

motivated by a non-community caretaking purpose.” Corbin v. State, 85 S.W.3d

272, 277 (Tex. Crim. App. 2002).

                                             5
      Since recognizing this exception, the Court of Criminal Appeals has

developed a two-prong test to determine whether a police officer has properly

invoked his community-caretaking function: (1) the officer must be primarily

motivated by his community-caretaking purpose; and (2) the officer must

reasonably believe that the individual was in need of help. Gonzales v. State, 369

S.W.3d 851, 854 (Tex. Crim. App. 2012). In Wright, the Court of Criminal

Appeals listed factors courts could consider in determining the reasonableness of

an officer’s belief that an individual needs assistance: (1) the nature and level of

distress exhibited by the individual; (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. Wright, 7 S.W.3d at 151-52. The Court of

Criminal Appeals later clarified that “[t]he 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.

      Pursuant to this standard, the Court of Criminal Appeals in Gonzales found

that the two-prong test was satisfied in a DWI case in which a police officer, while

sitting at a red light just before 1:00 a.m., observed a defendant’s vehicle pull off

of the road and come to a stop on the shoulder just a short distance ahead. Id. at

853. Believing that the driver needed assistance, the officer activated his front-

                                             6
facing and rear-facing lights and pulled behind the vehicle.        Id.   The officer

testified that the sole reason he pulled behind the driver was “to check on them, see

if they had a flat tire, if everything was okay, if maybe they were lost” and “to see

if he was . . . having trouble, if he needed assistance.” Id. (quotations original).

The Court held that the officer “could have reasonably concluded that [the driver]

was suffering from distress resulting from car trouble, a flat tire, or running out of

gas—a distress no less significant to an officer’s function as a public servant.” Id.

at 856 (citations omitted).

      Similarly, in Solano v. State, a deputy pulled in front of a driver’s vehicle

and activated his emergency lights after seeing the vehicle pull to the side of the

road and raise its hood. Solano v. State, 371 S.W.3d 593, 594 (Tex. App.—

Amarillo 2012, no pet.). This caused the deputy to “want[] to make sure that

everything was fine, everything was running.” Id. (quotations original). The

Seventh Court of Appeals affirmed the defendant’s conviction for possession of a

controlled substance and held that the initial interaction “could be justified as an

instance of an officer legitimately exercising his community caretaking function.”

Id. at 595. The Seventh Court of Appeals specifically noted that “it is within the

realm of reasonable debate to infer from seeing a car on the side of a road with its

hood up that those occupying the vehicle are experiencing car troubles.” Id.




                                             7
       The Ninth Court of Appeals also affirmed a defendant’s conviction for

possession of a controlled substance under similar facts. Kuykendall v. State, 335

S.W.3d 429, 435 (Tex. App.—Beaumont, pet. ref'd). In Kuykendall v. State, police

officers “decided to stop and check on the welfare of [a] truck because the truck

was parked on the side of the road with parking lights on, no residences or streets

were within close distance, and it was an extremely dark area.” Id. (international

quotations marks omitted).       One of the officers testified that under those

circumstances, “we are going to turn around and check and make sure the driver is

okay, make sure they are not having any kind of medical problems or something

along those lines. If they are broke down, we will get them a tow truck or

whatever we need to do to help them out.” Id. (quotations marks original).

III.   Officer Torres Properly Invoked His Community-Caretaking Function

       Officer Torres conducted a lawful encounter of appellant and properly

invoked his community-caretaking function in accordance with the two-prong test

established by the Court of Criminal Appeals. First, Officer Torres was primarily

motivated by a community-caretaking purpose, and second, he had a reasonable

belief that appellant was in need of help.

       Throughout the course of the suppression hearing, Officer Torres testified

that his intent was to conduct a welfare check of appellant to see whether

appellant’s vehicle was damaged and whether he needed any type of assistance.

                                             8
Officer Torres stated that he simply wanted to see whether appellant was “okay.”

Furthermore, the totality of the circumstances indicate that Officer Torres’s belief

that appellant was in need of help was a reasonable belief. It was late at night,

appellant was stopped in the middle of the roadway, and appellant had exited his

truck and appeared to be checking the rear of the truck for damage. Given that

Officer Torres heard the “loud bang” just as appellant was pulling out of a parking

lot and then observed appellant stop and check the rear of this truck, it was

reasonable for Officer Torres to infer that the vehicle had sustained damage.

      The facts of this case are analogous to Gonzales, Solano, and Kuykendall. In

all three of those cases, the courts found that an officer checking on an individual

who may be experiencing car trouble acted pursuant to his community-caretaking

purpose. Just as the Court of Criminal Appeals found in Gonzales that an officer

who checked on a driver pulled off on the side of the road conducted a lawful

encounter under the community-caretaking exception, so should this court hold in

the present case that Officer Torres conducted a lawful encounter to see whether

appellant, who had stopped toward the middle of the road, had damaged his vehicle

and needed assistance. All three of these cases also stand for the proposition that

an encounter is not escalated into any sort of detention requiring reasonable

suspicion or probable cause just because an officer activates his emergency lights.

In Solano, for example, the officer activated his emergency lights when checking

                                            9
on a vehicle with its hood up. Officer Torres thus did not escalate his encounter

into a detention by turning on his lights to check on appellant’s vehicle stopped in

the middle of the road.

      Appellant’s reliance on the facts of Corbin is misplaced. The Court of

Criminal Appeals’s decision in Corbin involved an actual traffic stop, as opposed

to an officer checking on the welfare of a vehicle already stopped on the side of or

in the middle of the roadway experiencing apparent car troubles. Appellant also

lists the Wright factors to support his argument. But, as noted in Gonzales, these

factors merely serve to provide guidance to the lower courts in evaluating the

reasonableness of an officer’s belief. They are not elements of reasonableness per

se. Officer Torres’s decision to check on a vehicle stopped in the middle of the

road late at night after it might have been damaged is exactly the sort of law

enforcement conduct the community-caretaking exception was designed to allow.

      For these reasons, and in giving due deference to the trial court’s role as the

finder of fact and judge of the credibility of Officer Torres’s testimony, appellee

requests that this court hold that the trial court did not abuse its discretion and

affirm the trial court’s decision.

                          




                                            10
                            CONCLUSION AND PRAYER

      WHEREFORE, PREMISES, CONSIDERED, the State of Texas submits

that the judgment of the trial court should, in all things, be AFFIRMED.



                                            Respectfully submitted,

                                            NICHOLAS “NICO” LAHOOD
                                            Criminal District Attorney
                                            Bexar County, Texas


                                            /s/ Joshua Somers
                                            JOSHUA SOMERS
                                            Assistant Criminal District Attorney
                                            Bexar County, Texas
                                            Paul Elizondo Tower
                                            101 West Nueva Street
                                            San Antonio, Texas 78205
                                            Phone: (210) 335-2311
                                            Fax: (210) 335-2313
                                            Email: Joshua.Somers@bexar.org
                                            State Bar No. 24047261




                                           11
                     CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i), the undersigned

attorney certified that there are 2,174 words in the foregoing computer-generated

document, based upon the representation provided by the word processing program

that was used to create the document, and excluding the portion of the document

exempted by Rule 9.4(i)(1).



                                           /s/ Joshua Somers
                                           JOSHUA SOMERS
                                           Assistant Criminal District Attorney
                                           Bexar County, Texas
                                           Paul Elizondo Tower
                                           101 West Nueva Street
                                           San Antonio, Texas 78205
                                           Phone: (210) 335-2311
                                           Fax: (210) 335-2313
                                           Email: Joshua.Somers@bexar.org
                                           State Bar No. 24047261




                                          12
                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing instrument has

been mailed to James C. Oltersdorf, appellant’s attorney of record on appeal, at the

following address on: April 6, 2014.


      James C. Oltersdorf
      509 South Main Street
      San Antonio, Texas 78204


                                             /s/ Joshua Somers
                                             JOSHUA SOMERS
                                             Assistant Criminal District Attorney
                                             Bexar County, Texas
                                             Paul Elizondo Tower
                                             101 West Nueva Street
                                             San Antonio, Texas 78205
                                             Phone: (210) 335-2311
                                             Fax: (210) 335-2313
                                             Email: Joshua.Somers@bexar.org
                                             State Bar No. 24047261




                                            13
