                                                                            PD-1480-15
                         PD-1480-15                        COURT OF CRIMINAL APPEALS
                                                                           AUSTIN, TEXAS
                                                         Transmitted 11/13/2015 4:34:14 PM
                                                           Accepted 11/16/2015 3:08:38 PM
                 IN THE COURT OF CRIMINAL APPEALS                           ABEL ACOSTA
                                                                                    CLERK
                             OF TEXAS

CAMERON BYRAM,                  §
  APPELLANT                     §
                                §
V.                              §      NO. PD-_____-15
                                §
THE STATE OF TEXAS,             §
  APPELLEE                      §

     STATE’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION OF
THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS IN CAUSE
NUMBER 02-14-00343-CR REVERSING THE CONVICTION IN CAUSE NUMBER
1332976 IN THE COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY,
TEXAS; THE HONORABLE SHERRY HILL, JUDGE PRESIDING.


                              §§§
           STATE'S PETITION FOR DISCRETIONARY REVIEW
                              §§§

                                SHAREN WILSON
                                Criminal District Attorney
                                Tarrant County, Texas

                                DEBRA WINDSOR
                                Chief, Post-Conviction

                                STEVEN W. CONDER, Assistant
                                Criminal District Attorney
                                State Bar No. 04656510
     November 16, 2015          401 W. Belknap
                                Fort Worth, Texas 76196-0201
                                (817) 884-1687
                                FAX (817) 884-1672
                                 CCAAppellateAlerts@Tarrantcountytx.gov
              IDENTITY OF JUDGES, PARTIES AND COUNSELS

Trial Court Judge:
   Hon. Sherry Hill, former Judge, County Criminal Court No. 1 of Tarrant
   County, Texas

Parties to the Judgment:
   Appellant, Cameron Byram, and the State of Texas

Appellant’s counsels at trial:
  Hon. Mitchell Slate Miers
  700 NE Loop 820, Suite 216
  Hurst, Texas 76053

  Hon. Mimi Coffey
  4700 Airport Freeway
  Fort Worth, Texas 76117

  Hon. Richard A. Henderson
  100 Throckmorton Street, Suite 540
  Fort Worth, Texas 76102

Counsels for the State at trial:
  Hon. Joe Shannon Jr., former Criminal District Attorney, Tarrant    County,
  Texas
  Hon. Jacob R. Lilly, former Assistant Criminal District Attorney,   Tarrant
  County, Texas
  Hon. Patrick Almand, former Assistant Criminal District Attorney,   Tarrant
  County, Texas
  Hon. Nathan Martin, Assistant Criminal District Attorney, Tarrant   County,
  Texas, 401 W. Belknap Street, Fort Worth, Texas 76196-0201

Appellant’s counsel on direct appeal:
  Hon. Richard A. Henderson
  100 Throckmorton Street, Suite 540
  Fort Worth, Texas 76102

                                     i
Counsel for the State on direct appeal:
  Hon. Sharen Wilson, Criminal District Attorney, Tarrant County, Texas
  Hon. Steven W. Conder, Assistant Criminal District Attorney, Tarrant
  County, Texas
  401 W. Belknap Street, Fort Worth, Texas 76196-0201




                                  ii
                                                     TABLE OF CONTENTS

IDENTITY OF JUDGES, PARTIES AND COUNSELS ............................................................. i

TABLE OF CONTENTS ................................................................................................................ iii

TABLE OF AUTHORITIES ......................................................................................................... iv

STATEMENT REGARDING ORAL ARGUMENT ................................................................. 1

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

STATEMENT OF PROCEDURAL HISTORY .......................................................................... 2

QUESTIONS FOR REVIEW ......................................................................................................... 3

ARGUMENT ..................................................................................................................................... 3

     A.          Deference to Trial Court’s Implied Factual Findings on
                 Community Caretaking ............................................................................................ 3

     B.          Determination Whether Stop Qualified Under Community
                 Caretaking Exception................................................................................................ 7

     C,          Determination Whether Officer Had Reasonable Suspicion ................... 8

CONCLUSION ................................................................................................................................ 10

PRAYER ........................................................................................................................................... 10

CERTIFICATE OF SERVICE ...................................................................................................... 11

CERTIFICATE OF COMPLIANCE ........................................................................................... 11

APPENDIX (Court of Appeals Opinion) ............................................................................... A

APPENDIX (Dissenting Opinion) ............................................................................................ B
                                                                        iii
                                            INDEX OF AUTHORITIES

CASES                                                                                                                 PAGES

Andrews v. State,
   79 S.W.3d 649 (Tex. App. – Waco 2002, pet. refused) ........................................... 7

Byram v. State,
   ____ S.W.3d ____, 2015 WL 6134114 (Tex. App. - Fort Worth
   October 15, 2015)...................................................................................................... passim

Davis v. State,
   947 S.W.2d 240 (Tex. Crim. App. 1997) ....................................................................... 8

Flores v. State,
   2014 WL 7340279 (Tex. App. - San Antonio
   December 23, 2014, no pet.) ............................................................................................. 7

Gutierrez v. State,
   221 S.W.3d 680 (Tex. Crim. App. 2007) ....................................................................... 4

Guzman v. State,
   955 S.W.2d 85 (Tex. Crim. App. 1997)..................................................................... 3, 4

Harper v. State,
   349 S.W.3d 188 (Tex. App. – Amarillo 2011, pet. refused) .................................. 9

Loserth v. State,
   963 S.W.2d 770 (Tex. Crim. App. 1998) ....................................................................... 4

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

Newman v. State,
  2001 WL 279182 (Tex. App. – Houston [1st Dist.]
  March 22, 2001, no pet.) ..................................................................................................... 9

                                                               iv
State v. Ross,
   32 S.W.3d 853 (Tex. Crim. App. 2000).......................................................................... 3

Wright v. State,
   18 S.W.3d 245 (Tex. App. – Austin 2000, pet. refused) ......................................... 7


RULES

Tex. R. App. P. 9.4(e) ................................................................................................................. 11

Tex. R. App. P. 9.4(i) ........................................................................................................... 11, 12




                                                                    v
                   IN THE COURT OF CRIMINAL APPEALS
                               OF TEXAS

CAMERON BYRAM,                         §
  APPELLANT                            §
                                       §
V.                                     §     NO.   PD-____-15
                                       §
THE STATE OF TEXAS,                    §
  APPELLEE                             §


             STATE’S PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:



                STATEMENT REGARDING ORAL ARGUMENT

      The State requests that oral argument be granted because this case

involves important questions of State law to be decided.



                         STATEMENT OF THE CASE

      This case addresses the circumstances under which a police officer may

exercise his community caretaking duties within the constraints of the Fourth

Amendment to the United States Constitution.




                                      1
                    STATEMENT OF PROCEDURAL HISTORY

       The appellant was charged with driving while intoxicated while

possessing an open container within his immediate possession.         (C.R. I:6).

The appellant filed a pre-trial motion to suppress all evidence connected with

his detention and his arrest alleging the police detained him without a

warrant, probable cause, or reasonable suspicion.              (C.R. I:13-15).

Following a hearing, the trial court denied the appellant’s suppression motion.

(R.R. I:24).   The appellant subsequently pled guilty and was sentenced to

ninety days’ confinement probated for eighteen months.     (C.R. I:19).

       On October 15, 2015, in a 2-1 decision, the Court of Appeals held that

the trial court abused its discretion in denying the appellant’s motion to

suppress because:

   •     The car passenger was not in sufficient distress to justify the
         police officer’s stop under the community caretaking exception to
         the Fourth Amendment’s warrant requirement; and

   •     The police officer lacked reasonable suspicion that the appellant
         was engaged in an alcohol-based offense.

See Byram v. State, ____ S.W.3d ____, 2015 WL 6134114 (Tex. App. - Fort

Worth October 15, 2015).




                                      2
                           QUESTIONS FOR REVIEW

1.    Whether the Court of Appeals gave proper deference to the trial court’s
      determination of factual issues and application-of-law-to-fact issues that
      turn on credibility or demeanor?

2.    Whether the Court of Appeals properly determined that the police
      officer’s stop did not qualify under the community caretaking exception
      to the Fourth Amendment’s warrant requirement?

3.    Whether the Court of Appeals properly determined that the police
      officer lacked reasonable suspicion to stop the appellant’s vehicle?



                                  ARGUMENT

A.    Deference to Trial Court’s Implied Factual Findings on Community
      Caretaking

      The Court of Appeals failed to give proper deference to the trial court’s

implied factual findings supporting its determination that this stop qualified

under the community caretaking exception to the warrant requirement.

      In a suppression hearing, the trial court 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); Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997).      The reviewing court must afford

almost total deference to the trial court’s application of law to fact questions

which turn upon an evaluation of the credibility and demeanor of the
                                        3
witnesses.    Martinez v. State, 348 S.W.3d 919, 921-22 (Tex. Crim. App.

2011); Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998); Guzman

v. State, 955 S.W.2d at 89.   The reviewing court must view the evidence and

all its reasonable inferences in the light most favorable to the trial court’s

ruling.   Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007).

When the trial court does not make explicit findings of fact, the reviewing

court should infer the necessary factual findings that support the court's

ruling when the evidence supports the implied findings.       Gutierrez v. State,

221 S.W.3d at 687.

       In denying the appellant’s suppression motion, the trial court made two

implicit findings:

   •      Officer Figueroa was primarily motivated by a community
          caretaking purpose; and

   •      Officer Figueroa’s belief that the female passenger required
          assistance was reasonable.

See Byram v. State, 2015 WL 6134114, at *6 (Walker J., dissent).

       Officer Figueroa testified that he initiated a traffic stop because he was

concerned about the female passenger’s safety because she was hunched over,

not moving and seemingly unconscious, and the appellant was ignoring his

inquiry whether his passenger needed assistance.         (R.R. I:8-12, 14).   The
                                        4
majority opinion does not dispute that Officer Figueroa was primarily

motivated by community caretaking purposes.          See Byram v. State, 2015

WL 6134114, at *2-3.

      As aptly described by Justice Walker in her dissenting opinion, the

record supports the trial court’s implied finding that Officer’s Figueroa’s belief

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. 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. 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.

Byram v. State, 2015 WL 6134114, at *6 (footnotes omitted).

      By contrast, rather than give the trial court any deference or view its


                                        5
findings in their most favorable light, the majority opinion instead discounts

its implied finding that Officer Figueroa’s belief was reasonable by reducing it

to the facts:

   [T]hat 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

Byram v. State, 2015 WL 6134114, at *3.      The majority’s assessment of each

community caretaking factor further shows their lack of deference:

   •      In assessing the first factor, the majority dismisses the fact that
          the passenger was seemingly unconscious and suffering from
          possible alcohol poisoning merely because Officer Figueroa did
          not discover her nauseous state until after he effectuated the
          traffic stop. See Byram v. State, 2015 WL 6134114, at *3.

   •      In assessing the second and third factor, the majority focuses on
          the fact that the passenger was not alone and was downtown with
          nearby hospitals; however, as pointed out by the dissent, they do
          not even consider that the appellant’s actions did not show
          concern for his passenger or that he was seeking medical
          assistance. See Byram v. State, 2015 WL 6134114, at *3, 6.

   •      In assessing the fourth factor, the majority dismisses the possible
          danger to the passenger since she engaged in no overt dangerous
          act other than being “hunched over” in an alcohol-reeked vehicle.
          See Byram v. State, 2015 WL 6134114, at *3.

Whereas a deferential factual review, as the dissent indicates, actually

supports the trial court’s implied finding that Officer Figueroa’s stop was

reasonable.     See Byram v. State, 2015 WL 6134114, at *6-7.
                                       6
B.    Determination Whether              Stop    Qualified     Under      Community
      Caretaking Exception

      The Court of Appeals improperly determined that this stop did not

qualify under the community caretaking exception to the warrant

requirement.

      In holding that Officer Figueroa’s belief was unreasonable, the majority

places undue focus on the “vomit” cases 1 and the fact that the female

passenger was not alone in an isolated place.         See Byram v. State, 2015 WL

6134114, at *3.      First, this case involves much more than a passenger is

vomiting out the window most likely suffering from an upset stomach; the

passenger herein was seemingly unconscious and possibly suffering from

alcohol poisoning given her location inside an alcohol-effused vehicle

traveling in a bar district on a holiday known for excessive partying.               (R.R.

II:6-9).   Additionally, the police’s community caretaking function is not

limited to isolated places or to people who are alone.            See Flores v. State,

2014 WL 7340279, at *3 (Tex. App. - San Antonio December 23, 2014, no pet.).

      In sum, when the evidence and its reasonable inferences are viewed in


1     See Andrews v. State, 79 S.W.3d 649, 651-52 (Tex. App. – Waco 2002, pet.
      refused); Wright v. State, 18 S.W.3d 245, 246 (Tex. App. – Austin 2000, pet.
      refused).

                                           7
the light most favorable to the trial court’s ruling, all four factors - the female

passenger's level of distress and seeming unconsciousness, her location in a

vehicle driven by an unconcerned driver, her lack of access to assistance, and

the danger to herself - support the reasonableness of Officer Figueroa's belief

that she needed assistance.



C.    Determination Whether Officer Had Reasonable Suspicion

      The Court of Appeals improperly determined that the officer lacked

reasonable suspicion to stop the appellant’s vehicle.           An investigative

detention is reasonable, and thus constitutional, if an officer has a reasonable

suspicion that some activity out of the ordinary is occurring or has occurred,

some suggestion to connect the detainee with the unusual activity, and some

indication that the unusual activity is related to a crime.    See Davis v. State,

947 S.W.2d 240, 244 (Tex. Crim. App. 1997).

      Officer Figueroa had a reasonable suspicion to stop the appellant

because he was in an area and at a time known for excessive partying; an odor

of alcohol was wafting from his Tahoe; the female passenger was hunched

over and seemingly unconscious; he deliberately ignored Officer Figueroa’s

inquiry whether his passenger needed assistance; and his conduct was
                                        8
abnormal compared to people’s normal response to police assistance

inquiries.   (R.R. I:6-7, 9-11).   An odor of alcohol and a driver’s odd

behavior may justify reasonable suspicion.     See Harper v. State, 349 S.W.3d

188, 192 (Tex. App. – Amarillo 2011, pet. refused) (odor of alcohol emanating

from vehicle justified reasonable suspicion); Newman v. State, 2001 WL

279182, at *3 (Tex. App. – Houston [1st Dist.] March 22, 2001, no pet.) (not

designated for publication) (defendant’s nervousness and odor of alcohol

created reasonable suspicion).

      The majority opinion dismisses the Newman and Harper decisions

because they involved a continued detention where the reasonable suspicion

arose after the police officer stopped the driver for a traffic violation.   See

Byram v. State, 2015 WL 6134114, at *4.        To the contrary, the “continued

detention” status in those cases is not dispositive to the issue of whether the

officer had a reasonable suspicion that the defendant was driving while

intoxicated because it only meant that the officer was in a lawful position to

develop his “reasonable suspicion”.    See Harper v. State, 349 S.W.3d at 192;

Newman v. State, 2001 WL 279182, at *3.            In the case herein, Officer

Figueroa was in a lawful position parked on a public street to develop his

reasonable suspicion without the need for any original traffic violation
                                       9
detention to stop the appellant’s vehicle.

      In sum, when the circumstances and all their reasonable inferences are

viewed in the light most favorable to the trial court’s ruling, Officer Figueroa

had a reasonable suspicion to stop the appellant for driving while intoxicated.



                                  CONCLUSION

      The Court of Appeals misapplied the proper standard of review and

acted as a “super-factfinder” in reversing the trial court’s decision to deny the

appellant’s suppression motion.



                                    PRAYER

      The State prays that this Court grant review in this cause, reverse the

decision of the Court of Appeals, and affirm the trial court’s decision.


                                         Respectfully submitted,

                                         SHAREN WILSON
                                         Criminal District Attorney
                                         Tarrant County, Texas

                                         DEBRA WINDSOR
                                         Chief, Post-Conviction



                                        10
                                        /s/ Steven W. Conder
                                        STEVEN W. CONDER, Assistant
                                        Criminal District Attorney
                                        State Bar No. 04656510
                                        401 W. Belknap
                                        Fort Worth, Texas 76196-0201
                                        (817) 884-1687
                                        FAX (817) 884-1672
                                         CCAAppellateAlerts@Tarrantcounty.tx.gov



                         CERTIFICATE OF SERVICE

      A true copy of the State's petition for discretionary review has been

electronically served on opposing counsel, the Hon. Richard A. Henderson,

100   Throckmorton    Street,   Suite        540,   Fort   Worth,   Texas   76102

(richard@rahenderson.com), on this, the 13th day of November, 2015.


                                         /s/ Steven W. Conder
                                         STEVEN W. CONDER



                      CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of Tex. R. App.

P. 9.4(e) because it has been prepared in a conventional typeface no smaller

than 14-point for text and 12-point for footnotes, and with the word-count

limitations of Tex. R. App. P. 9.4(i) because it contains approximately 1559


                                        11
words, excluding those parts exempted by Tex. R. App. P. 9.4(i)(1), as

computed by Microsoft Office Word 2010 - the computer program used to

prepare the document.

                                   /s/ Steven W. Conder
                                   STEVEN W. CONDER


c18.byram cameron.pdr/state




                                  12
A
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00343-CR


CAMERON BYRAM                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                    ----------

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

                                    ----------

                                  OPINION

                                    ----------

                               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.


                                        2
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.




                                        3
                                  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.


                                         4
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;


                                          5
      (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



                                         6
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).


                                            7
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.”).




                                         8
      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


                                       9
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


                                         10
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




                                         11
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




                                          12
B
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                               NO. 02-14-00343-CR


CAMERON BYRAM                                                      APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

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

                                    ----------

                             DISSENTING OPINION

                                    ----------

                                 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


                                         2
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.


                                           3
   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


                                         4
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.


                                          5
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]”).


                                       6
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.


                                        7
