                                    NO. 07-04-0004-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                SEPTEMBER 24, 2004
                          ______________________________

                                    JOSE L. LOSOYA,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2002-400,564; HON. CECIL PURYEAR, PRESIDING
                       _______________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

       Appellant, Jose L. Losoya, appeals his conviction for felony driving while intoxicated.

His sole issue involves the trial court’s decision to deny his motion to suppress. He

contends that the court erred since the detaining officer had neither reasonable suspicion

to stop appellant nor a reasonable belief that he (the officer) was executing a community

care-taking stop. We affirm the judgment of the trial court.

       Standard of Review

       The standard of review is one of abused discretion. Guzman v. State, 955 S.W.2d

85 (Tex. Crim. App. 1997). Thus, we defer to the trial court’s findings of historical fact but
review, de novo, the manner in which it applied the law to those facts. Id. at 89. Moreover,

we need not rely solely upon the reasons given by the trial court to uphold its decision for

the decision must be upheld if supported by any legal theory. Armendariz v. State, 123

S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, ___U.S. ___, 124 S.Ct. 1883, 158

L.Ed.2d 469 (2004).

       Facts

       According to the record, Officer Phillip Johnson, the only witness at the suppression

hearing, was headed eastbound towards the intersection of Indiana Avenue and Brownfield

Highway in Lubbock, Texas. The time was 1:30 a.m. Upon approaching the intersection,

the officer slowed and stopped since he had a red light. Facing him across the intersection

was a vehicle positioned to turn south on to Indiana. The vehicle was stopped, however,

even though it had a green arrow permitting the turn. When Johnson’s light turned green,

he passed the stopped vehicle and saw its driver, i.e. appellant, with his eyes closed, head

tilted to the side, and mouth open. In response to what he saw, Johnson turned his squad

car around and engaged his emergency lights to keep others on the road from colliding

with appellant’s vehicle. As he did so, he noticed that appellant had made the turn and

was proceeding down Indiana, “swerving back and forth.”              The officer followed,

intermittently engaging his siren in an effort to stop appellant. The latter did not stop for

the officer, however. Instead, and while heeding the occasional traffic stop sign and signal,

appellant drove on until he reached his home and parked the vehicle on both his driveway

and lawn. Officer Johnson arrived momentarily thereafter and met with appellant after

appellant exited his car. After noticing that appellant was stumbling, unable to stand, was



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slurring his speech, and smelling of alcohol, the policeman advised him that he was being

arrested for evading arrest or detention and for driving while intoxicated.

       Application of Law

        A police officer may reasonably seize an individual in exercise of his community

caretaking function irrespective of whether he had reasonable suspicion to believe that

criminal activity was afoot or probable cause to arrest. Corbin v. State, 85 S.W.3d 272,

276 (Tex. Crim. App. 2002). Furthermore, in assessing whether the stop was justified on

this basis, the court must engage in several exercises. First, it must determine if the officer

was actually motivated by a desire to provide for the welfare of the detainee. Id. at 276-77.

If it should be found that the officer was so motivated, then the court next must gauge the

reasonableness of the officer’s belief that there existed a need for caretaking. Id. at 277.

This is done by considering various factors such as 1) the nature and level of distress

previously exhibited by the potential detainee, 2) the location of the individual, 3) whether

or not the individual was alone or had access to help independent of the officer, and 4) the

extent to which the detainee, if not assisted, presented a danger to himself or others. Id.

       Regarding the matter of exercising his caretaking function, the officer at bar saw

appellant stopped at a green light in the wee hours of the morning with his head tilted to

the side, eyes closed, and mouth open. These circumstances caused him to wonder

whether appellant was unconscious, the victim of some malady such as a heart attack, or

intoxicated. And, because of that, he decided to approach and stop appellant to determine

why he appeared as he did. Thus, the record contains evidence upon which a trial court

could have reasonably concluded that Officer Johnson “was primarily motivated by



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community caretaking concerns.” Id. That is, while the police officer mentioned that he

wondered if appellant was drunk, the trial court, like that in Corbin, could have discounted

this reason for turning to investigate (given its authority to weigh the evidence and resolve

conflicts therein) and instead concluded that the officer was primarily motivated by a desire

to investigate whether appellant needed help. Id. Indeed, the officer testified that upon

turning around, he engaged his emergency lights to prevent vehicles from colliding with

appellant.   That is some evidence from which it reasonably could be inferred that

appellant’s safety, and that of others on the road, was foremost in the policeman’s mind.

       Additionally, our Court of Criminal Appeals has stated that “it certainly would be

reasonable for a police officer to stop an individual who appears to be falling asleep while

driving.” Id. at 278. And, that appears to be the very scenario that unfolded before

Johnson. Again, appellant’s head was cocked to the side, his mouth was open and his

eyes were closed while stopped at a green light. Moreover, that he swerved to and fro and

failed (for whatever reason) to respond to the officer’s emergency lights and siren lends

further support to the inference that appellant may have been suffering from some mental

or physical impairment or may have been lapsing into and out of consciousness. Indeed,

it is difficult to be unaware of the glare of flashing emergency lights atop a police car at

night or the sound of a siren unless some condition restricts an individual from perceiving

them. Thus, there exists some evidence of record upon which the trial court could have

reasonably found that the nature and level of distress being exhibited by appellant was

relatively high. We couple this to the facts that he was alone in the car while driving on a

public road within city boundaries and through a residential area. And, upon so combining



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the evidence, we encounter basis upon which the officer could have deduced that

appellant posed a danger to himself and no one else was available to help him.

        In short, the record contains evidence permitting the trial court to reasonably

conclude that factors mentioned in Corbin authorized Johnson’s intervention as part of his

caretaking function. More importantly, the very same evidence authorizing the intervention

also gives rise to another basis upon which the trial court could have denied the motion to

suppress. It involves a convergence of the caretaking function and probable cause to

arrest. Again, we have no doubt that the initial circumstances unfolding before the officer

allowed him to stop appellant to investigate whether he needed help. So, Johnson was

justified in activating his emergency lights and siren to effectuate the stop. In turn, that

appellant failed to comply and stop evinces criminal activity. Simply put, one is obligated

to stop once an officer has signaled for him to do so. Winter v. State, 902 S.W.2d 571,

573-74 (Tex. App.–Houston [1st Dist.] 1995, no pet.). Failing to comply with the directive

gives rise to probable cause to arrest the person. Martinez v. State, 644 S.W.2d 104, 108-

09 (Tex. App.–San Antonio 1982, no writ). So, the trial court could have also reasonably

concluded that Officer Johnson had probable cause to seize appellant once appellant did

stop.

        In sum, the evidence of record supports several theories upon which the trial court

could have legitimately decided to deny appellant’s motion to suppress. Because it does,

we overrule the sole issue before us and affirm the judgment of the trial court.



                                                 Brian Quinn
                                                   Justice

Do not publish.

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