          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                     NO. PD–0683–11



                            JIMMY GONZALES, Appellant

                                              v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
              FROM THE ELEVENTH COURT OF APPEALS
                         TAYLOR COUNTY

              M EYERS, J., filed a dissenting opinion in which P RICE, J., joined.

                                DISSENTING OPINION

       An officer cannot investigate to see if community caretaking is needed–he must

actually observe a threat to the general public before he can investigate. The majority

cites the following factors from Wright v. State, 7 S.W.3d 148, 152 (Tex. Crim. App.

1999), which it says are relevant to the determination of whether an officer acted

reasonably in a community-caretaking stop: (1) the nature and level of the distress

exhibited by the individual; (2) the location of the individual; (3) whether or not the
                                                                      Gonzalez Dissent–Page 2

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. The majority says the fourth Wright factor “should be afforded little weight in

light of the unique facts presented by this record.” However, the consideration of whether

the individual presents a danger to himself or others is the crux of the community-

caretaking function by the police. Here, (1) Appellant exhibited no distress at all; (2) he

was located safely on the shoulder of the road at a time when there was very little traffic,

so no possibility of danger to other drivers; (3) the officer could not tell if Appellant was

alone, and; (4) he presented no danger to himself or others.

       In order to invoke a community-caretaking role, an officer must observe activity

that puts the well-being of the general public at risk. Someone who has safely pulled over

on the side of the road may be looking at a map, talking on a cell phone, sending a text

message, or picking up an item dropped on the floor of the car. I understand, of course,

that he could also be having medical problems or car trouble. But here, Appellant gave

no indication that he was in distress or needed help, and he had done nothing that should

make the officer concerned for the safety of the general public. All the officer knew was

that Appellant had briefly pulled over, at night, in an out-of-the-way location. The officer

had no idea why Appellant pulled over. But, what the officer does not know cannot

render the stop reasonable. The majority appears to convert the officer’s ignorance into a

rationale for saying that his caretaking concern was justified. The officer was
                                                                    Gonzalez Dissent–Page 3

investigating to see what Appellant was doing, without any reason to think that there was

something wrong. That, quite obviously, is a violation of the Fourth Amendment. The

majority sets a dangerous precedent here by basically saying that an officer may

investigate a person’s harmless activities without observing any danger or distress.

       However well-intentioned the officer was in this case, the community-caretaking

exception to the Fourth Amendment’s prohibition of unreasonable searches and seizures

should be reserved for circumstances in which police intervention is clearly necessary.

Because no such circumstances existed in this situation, I respectfully dissent.




                                                  Meyers, J.




Filed: June 27, 2012

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