                              PD-1603-15                                        PD-1603-15
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                              Transmitted 12/9/2015 4:52:30 PM
                                                              Accepted 12/11/2015 12:09:01 PM
                                                                                ABEL ACOSTA
                              No. 01-14-00628-CR                                        CLERK

                    TO THE COURT OF CRIMINAL APPEALS

                          OF THE STATE OF TEXAS


 MANUEL NAVA, JR.,                                                  Appellant

 v.

 THE STATE OF TEXAS,                                                 Appellee


                           Appeal from Harris County


                                   * * * * *

           STATE’S PETITION FOR DISCRETIONARY REVIEW

                                   * * * * *


                               LISA C. McMINN
                           State Prosecuting Attorney
                             Bar I.D. No. 13803300

                             JOHN R. MESSINGER
                       Assistant State Prosecuting Attorney
                              Bar I.D. No. 24053705

                                 P.O. Box 13046
                              Austin, Texas 78711
                           information@spa.texas.gov
                           512/463-1660 (Telephone)
                               512/463-5724 (Fax)


December 11, 2015
   NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT

*The parties to the trial court’s judgment are the State of Texas and Appellant,
Manuel Nava, Jr..

*The case was tried before the Honorable Michael Fields, County Court at Law No.
14, Harris County, Texas.

*Counsel for Appellant at trial and on appeal was Maverick J. Ray, 1419 Franklin St.,
2nd Floor, Houston, Texas 77002.

*Counsel for the State at trial was Abad Samir Salman, Assistant District Attorney,
1201 Franklin Street, Suite 600, Houston, Texas 77002.

*Counsel for the State on appeal was Patricia McLean, Assistant District Attorney,
1201 Franklin, Suite 600, Houston, Texas 77002.

*Counsel for the State before this Court is John R. Messinger, Assistant State
Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.




                                          i
                                     TABLE OF CONTENTS

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

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

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

   Must an officer be primarily motivated by a personal desire to help in order
   to justify a temporary seizure pursuant to the community caretaking
   doctrine?

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

APPENDIX (Opinion of the Court of Appeals)




                                                      ii
                                     INDEX OF AUTHORITIES

Cases
Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6-7

Brigham City v. Stuart, 547 U.S. 398 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Cady v. Dombrowski, 413 U.S. 433 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

Corbin v. State, 85 S.W.3d 272 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . 3, 6

State v. Cruz, 461 S.W.3d 531 (Tex. Crim. App. 2015). . . . . . . . . . . . . . . . . . . . . . 5

Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011). . . . . . . . . . . . . . 8

City of Indianapolis v. Edmond, 531 U.S. 32 (2000). . . . . . . . . . . . . . . . . . . . . . . . 5

Fernandez v. California, 134 S. Ct. 1126 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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

Kentucky v. King, 563 U.S. 452 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Maryland v. King, 133 S. Ct. 1958 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6

Laney v. State, 117 S.W.3d 854 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . 3, 7

Nava v. State, 01-14-00628-CR, __S.W.3d__, 2015 Tex. App. LEXIS 11622
     (Tex. App.–Houston [1st Dist.] Nov. 10, 2015). . . . . . . . . . . . . . . . . . . . . . 2, 4

Whren v. United States, 517 U.S. 806 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

Statutes and Rules
TEX. CODE CRIM. PROC. art. 28.01 §1(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. R. APP. P. 66.3(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4




                                                          iii
                               No. 01-14-00628-CR

                   TO THE COURT OF CRIMINAL APPEALS

                           OF THE STATE OF TEXAS

MANUEL NAVA, JR.,                                                          Appellant

v.

THE STATE OF TEXAS,                                                         Appellee


                                    * * * * *

          STATE’S PETITION FOR DISCRETIONARY REVIEW

                                    * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Comes now the State of Texas, by and through its State Prosecuting Attorney,

and respectfully urges this Court to grant discretionary review of the above named

cause, pursuant to the rules of appellate procedure.

              STATEMENT REGARDING ORAL ARGUMENT

      The State requests oral argument. The State is asking this Court to overrule

precedent based on a divergence from controlling Supreme Court cases. This

decision will require consideration of numerous distinct but interrelated doctrines.

Conversation will help to clarify these distinctions and resolve the issue presented.




                                          1
                          STATEMENT OF THE CASE

      Appellant pleaded guilty to Class A driving while intoxicated and was

sentenced to one year in jail, probated for 18 months.1 The court of appeals held that

the trial court abused its discretion by denying appellant’s motion to suppress, in part,

because there was no evidence that the officer who initiated the traffic stop was

primarily motivated by the community caretaking doctrine.

                 STATEMENT OF PROCEDURAL HISTORY

      On November 10, 2015, the court of appeals reversed appellant’s conviction in

a published opinion and remanded for further proceedings.2 No motion for rehearing

was filed. The State’s petition is due on December 10, 2015.

                             GROUND FOR REVIEW

  Must an officer be primarily motivated by a personal desire to help in order
  to justify a temporary seizure pursuant to the community caretaking
  doctrine?

                       ARGUMENT AND AUTHORITIES

      In Cady v. Dombrowski, the Supreme Court recognized that law enforcement

officers frequently engage in “community caretaking functions, totally divorced from

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



  1
      1 CR 69.
  2
      Nava v. State, 01-14-00628-CR, __S.W.3d__, 2015 Tex. App. LEXIS 11622 (Tex.
App.–Houston [1st Dist.] Nov. 10, 2015).

                                           2
criminal statute.”3 Three exceptions to the warrant requirement flow from this: the

automobile impoundment/inventory doctrine, the emergency doctrine (not to be

confused with the exigent circumstances doctrine), and what is commonly called the

community caretaking doctrine.4 “The common thread in each of these three

exceptions,” according to this Court, “is the officer’s purpose.”5 Specifically, this

Court held in Corbin v. State that “a police officer may not properly invoke his

community caretaking function if he is primarily motivated by a non-community

caretaking purpose.”6

       Appellant was arrested for driving while intoxicated. He moved to suppress

any evidence stemming from his allegedly illegal seizure.7 Relying on its discretion

to rule based on the motions themselves, the trial court denied the motion.8 It

   3
       413 U.S. 433, 441 (1973).
   4
       Laney v. State, 117 S.W.3d 854, 861 (Tex. Crim. App. 2003).
   5
       Id. at 860.
   6
        85 S.W.3d 272, 276-77 (Tex. Crim. App. 2002). This was more recently reaffirmed in
Gonzales v. State, 369 S.W.3d 851, 854-55 (Tex. Crim. App. 2012) (“Whether an officer properly
invoked his community-caretaking function requires a two-step inquiry: (1) whether the officer was
primarily motivated by a community-caretaking purpose; and (2) whether the officer’s belief that
the individual needs help was reasonable.”).
   7
       Supp. CR (10/14/14) 8-13.
   8
        1 RR 4. See TEX. CODE CRIM. PROC. art. 28.01 §1(6) (“the court may determine the merits
of said motion on the motions themselves, or upon opposing affidavits, or upon oral testimony,
subject to the discretion of the court.”). While the motion itself is boilerplate, the memorandum filed
in support of it contains specific legal argument based on these factual assertions:
   On September 16, 2013, Officer Ferguson was on patrolling [sic] the 2900 block of Shaver.
   Officer Ferguson saw a Ford F-150 truck exit a parking lot and merge onto Shaver. Officer
   Ferguson saw an unidentified male appear to run after the truck and [sic] as it drove north on

                                                  3
concluded that the seizure was justified, in part, because of the community caretaking

warrant exception.9

        The court of appeals reversed. Citing Corbin, it held that “the officer must

actually be motivated by a community caretaking purpose.”10 “While it may be that

it would have been reasonable for the officer to stop Nava in his community

caretaking function, without evidentiary support, there is no basis to conclude that the

officer intervened for this reason and not for ordinary investigative purposes.”11

        The lower court is wrong because Corbin was wrong. Requiring proof of the

officer’s subjective motivation is inconsistent with both Supreme Court precedent and

this Court’s treatment of the similar emergency doctrine.12 It is also bad policy.

The Supreme Court’s consideration of motive is extremely limited.

        The general rule concerning an officer’s justification for a seizure is well

known:

   Fourth Amendment reasonableness “is predominantly an objective inquiry.” We

   Shaver. The male stopped running, turned around, and began walking back to the parking lot
   entrance. Right as the passenger door opened, Officer Ferguson initiated a traffic stop on the
   Ford F-150, which was being driven by the Defendant. Officer Ferguson states in his Offense
   Report he stopped the vehicle because he believed a disturbance was occurring and
   subsequently arrested the defendant for DWI.
1 CR 57-66.
   9
        Supp. CR (10/14/14) 6-7.
   10
        Slip op. at 9 (citations omitted).
   11
        Slip op. at 10.
   12
        TEX. R. APP. P. 66.3(c).

                                                 4
   ask whether “the circumstances, viewed objectively, justify [the challenged]
   action.” If so, that action was reasonable “whatever the subjective intent”
   motivating the relevant officials. This approach recognizes that the Fourth
   Amendment regulates conduct rather than thoughts, and it promotes
   evenhanded, uniform enforcement of the law.13

As a unanimous Supreme Court held in Whren v. United States, “Subjective

intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”14

“[T]he Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to

be taken in certain circumstances, whatever the subjective intent.”15

        The two limited exceptions to this rule are special-needs16 and

administrative-search17 cases, “where ‘actual motivations’ do matter.”18 The Supreme

Court has “never held, outside the context of inventory search or administrative

inspection . . ., that an officer’s motive invalidates objectively justifiable behavior



  13
        Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (citations omitted) (alteration in original).
   14
        517 U.S. 806, 813 (1996).
   15
        Id. at 814 (emphasis in original).
   16
        “Special needs” go beyond the normal need for law enforcement, such as the need to deter
drug use in public schools, or the need to assure that railroad employees engaged in train operations
are not under the influence of drugs or alcohol. al-Kidd, 131 S. Ct. at 2081. These are
“programmatic searches of either the public at large or a particular class of regulated but otherwise
law-abiding citizens.” Maryland v. King, 133 S. Ct. 1958, 1978 (2013). Inventory searches have
been discussed interchangeably with special needs, al-Kidd, 131 S. Ct. at 2083, although the latter
term is more expansive.
  17
       Administrative warrants authorize, for example, an inspection of fire-damaged premises to
determine the cause, or an inspection of residential premises to assure compliance with a housing
code. al-Kidd, 131 S. Ct. at 2081.
   18
        Id. at 2080.

                                                  4
under the Fourth Amendment[,]” and has “repeatedly held and asserted the

contrary.”19 Whren “reinforces the principle that . . . programmatic purposes may be

relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a

general scheme without individualized suspicion.”20 However, even when an inquiry

into programmatic purpose is appropriate, “this inquiry is directed at ensuring that the

purpose behind the program is not ‘ultimately indistinguishable from the general

interest in crime control.’”21 “It has nothing to do with discerning what is in the mind

of the individual officer conducting the search.”22

        None of these cases mention Cady v. Dombrowski or “community caretaking”

as an exception to a purely objective inquiry. This is presumably because offering

assistance is neither administrative nor a special-needs, “programmatic search[] of

either the public at large or a particular class of regulated but otherwise law-abiding




   19
         Whren, 517 U.S. at 812. See, e.g., Fernandez v. California, 134 S. Ct. 1126, 1134 (2014)
(rejecting inquiry into police motive when they are responsible for the absence of the resident who
objects to the search of a house); Kentucky v. King, 563 U.S. 452, 464 (2011) (rejecting any bad faith
analysis for exigencies created by police). See also State v. Cruz, 461 S.W.3d 531, 537 (Tex. Crim.
App. 2015) (to determine whether a particular question falls within the booking exception to
Miranda, this Court asks “whether the question reasonably relates to a legitimate administrative
concern, applying an objective standard.”); id. (“If a question is a legitimate administrative question,
then it does not matter whether the officer should know that the question is reasonably likely to elicit
an incriminating response.”).
   20
        City of Indianapolis v. Edmond, 531 U.S. 32, 45-46 (2000).
   21
        Brigham City v. Stuart, 547 U.S. 398, 405 (2006) (citation omitted) (emphasis added).
   22
        Id.

                                                   5
citizens.”23 Whether a citizen reasonably appears to need help is a fact-intensive,

case-by-case analysis. The purpose behind the doctrine—helping people—is “totally

divorced” from fighting crime. And it is a service to the public we legitimately

expect law enforcement to perform.24 This Court ignores Whren and its progeny

when it makes the officer’s motive the threshold issue.

        The clearest argument for why consideration of motive in this context is

consistent with Whren comes from Judge Cochran’s concurrence to Corbin:

   The decision to stop an automobile is generally deemed to be constitutionally
   reasonable when an officer has probable cause to believe that a traffic violation
   has occurred, regardless of his subjective “bad faith” and underlying purpose to
   search for evidence of another crime. The community caretaking doctrine acts
   in reverse: the officer does not have probable cause to believe that the person
   stopped has committed a crime, but the detention is reasonable under the Fourth
   Amendment if the officer has subjective good faith and an objectively
   reasonable belief that the person detained is in need of immediate assistance.25

The Supreme Court has since rejected the assertion that subjective intent is ignored

“only when there exists probable cause to believe that a violation of law has

occurred.”26 That Court held—perhaps unfairly, given the focus of Whren—that,



   23
        Maryland v. King, 133 S. Ct. at 1978.
   24
         See Gonzales, 369 S.W.3d at 856 (citing an A.B.A. report stating that, when determining
“appropriate objectives and priorities for police service, local communities should initially recognize
that most police agencies are currently given responsibility, by design or default, to[, inter alia,] . .
. (e) facilitate the movement of people and vehicles . . . (i) create and maintain a feeling of security
in the community . . . [and] (k) provide other services on an emergency basis.”).
   25
        Corbin, 85 S.W.3d at 281 n.8 (Cochran, J., concurring).
   26
        al-Kidd, 131 S. Ct. at 2082.

                                                   6
although searches and seizures for reasons other than suspected wrongdoing are rare,

only an “undiscerning reader” would conclude that ulterior motives invalidate

searches that are “legitimate for other reasons.”27

This Court’s requirement of evidence of primary purpose is also inconsistent with its
treatment of the emergency doctrine.

        This Court “use[s] an objective standard of reasonableness in determining

whether a warrantless search is justified under the Emergency Doctrine.”28 “The

distinction between the emergency doctrine and the community caretaking doctrine

. . . is a narrow, but critical one.”29 “[W]hile both doctrines are based on an officer’s

reasonable belief in the need to act pursuant to his or her ‘community caretaking

functions,’ the emergency doctrine is limited to the functions of protecting or

preserving life or avoiding serious injury.”30 The other difference is that while the

community caretaking doctrine “deals primarily with warrantless searches and

seizures of automobiles . . . the emergency doctrine deals with warrantless entries of,

but is not limited to, private residences.”31 It makes little sense to impose more



   27
        Id. at 2082 & n.2.
   28
        Laney, 117 S.W.3d at 862; see also id. at 863 (“courts should carefully apply the objective
standard of reasonableness when determining whether an officer’s warrantless entry and search is
justified under the emergency doctrine.”).
   29
        Id. at 861.
   30
        Id.
   31
        Id.

                                                7
judicial safeguards when a vehicle is temporarily detained than when a home is

entered.

Conclusion

       Community caretaking is a legitimate police function. Continuing to hold that

an objectively reasonable community caretaking seizure can be rendered illegitimate

because of the officer’s primary motivation is insupportable in light of al-Kidd and

this Court’s treatment of the emergency doctrine. There is no reason why officers

should be held to a solely objective standard when alleging a penal violation but have

their subjective motivations scrutinized when the facts show someone might have

needed help. If an objective standard is sufficient to protect a person’s rights when

circumstances “suggest that something of an apparently criminal nature is

brewing[,]”32 it is sufficient to protect the rights of those who reasonably appear to

be in need.




  32
       Derichsweiler v. State, 348 S.W.3d 906, 917 (Tex. Crim. App. 2011) (emphasis in original).

                                               8
                           PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant this Petition for Discretionary Review and remand the case so that the

reasonableness of this community caretaking seizure can be decided.

                                      Respectfully submitted,

                                      LISA C. McMINN
                                      State Prosecuting Attorney
                                      Bar I.D. No. 13803300

                                        /s/ John R. Messinger
                                      JOHN R. MESSINGER
                                      Assistant State Prosecuting Attorney

                                      P.O. Box 13046
                                      Austin, Texas 78711
                                      John.Messinger@SPA.Texas.gov
                                      512/463-1660 (Telephone)
                                      512/463-5724 (Fax)




                                       9
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool

the applicable portion of this document contains 2,777 words.

                                         /s/ John R. Messinger
                                       JOHN R. MESSINGER
                                       Assistant State Prosecuting Attorney

                         CERTIFICATE OF SERVICE

      The undersigned certifies that on this 9th day of December, 2015, the State’s

Petition for Discretionary Review was served electronically through the electronic

filing manager or e-mail on the parties below.

Dan McCrory
Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
mccrory_daniel@dao.hctx.net

Maverick J. Ray
1419 Franklin St., 2nd Floor
Houston, Texas 77002
maverickraylaw@gmail.com

                                        /s/ John R. Messinger
                                       JOHN R. MESSINGER
                                       Assistant State Prosecuting Attorney




                                        10
APPENDIX
Opinion issued November 10, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-14-00628-CR
                           ———————————
                       MANUEL NAVA, JR., Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 14
                           Harris County, Texas
                       Trial Court Case No. 1919049


                                   OPINION

      The State charged Manuel Nava by information with Class A misdemeanor

driving while intoxicated. TEX. PENAL CODE ANN. § 49.04 (West Supp. 2014).

Before trial, Nava moved to suppress the evidence that the State acquired during

his traffic stop and subsequent arrest, contending that the police officers lacked
reasonable suspicion to detain him. The trial court denied Nava’s motion without a

response from the State or hearing evidence. Nava then pleaded guilty in accord

with a plea agreement with the State, and he received a suspended sentence of one

year’s confinement, conditioned on completion of 18 months of community

supervision. In one issue, Nava challenges the trial court’s denial of his motion to

suppress, arguing that the State adduced no evidence that the stop was justified by

the community caretaking exception or a reasonable suspicion that he engaged in

reckless driving. We reverse and remand.

                                    Background

      Nava’s unsworn memorandum filed in support of his motion to suppress

contains the only account of the circumstances surrounding his arrest. According

to the memorandum, a patrolling police officer, Officer Ferguson, saw a Ford

F-150 truck exit a parking lot. Ferguson saw an unidentified man run after the

truck as it pulled away. The man on foot then turned around and began walking

back to the parking lot entrance. As the truck’s passenger door opened, Officer

Ferguson pulled the truck over. Officer Ferguson subsequently arrested Nava, who

was driving the truck, for driving while intoxicated.

      Nava moved to suppress evidence resulting from the stop on the basis that

Officer Ferguson did not have reasonable suspicion to stop Mr. Nava’s truck.

Nava presented his motion to the trial court, and the trial court ruled:



                                           2
THE COURT: This is your motion, [counsel]?

COUNSEL: Yes, sir.

THE COURT: I am going to rule based on the face of
the motion. Your motion is denied.

[COUNSEL]: Can we get a hearing on that, Judge?

THE COURT: We just did.

[COUNSEL]: We didn’t get – I want to put some stuff
on – I want to get the officer on the record.

[THE COURT]: Well, I can rule either on the basis of
your motion, on witness’ affidavits, on testimony, or
some combination. But your motion on its face
establishes the basis for me denying your motion to
suppress.

[COUNSEL]:        Can I get finding[s] of fact and
conclusion[s] as well?

THE COURT: They are contained in your motion.

[COUNSEL]: Is that all on the record, Judge?

THE COURT: Your motion is the record.

[COUNSEL]: But is this all on the record?

THE COURT REPORTER: Yeah.

THE COURT: Uh-huh.

[COUNSEL]: Well, can I call a witness?

THE COURT: No. No need. I’ve already ruled.

[COUNSEL]: Okay. Thank you, Judge.

                          3
             THE COURT: Thanks.

      Nava filed a notice of appeal.          Nava then moved to abate his appeal

requesting that we order the trial court to submit findings of fact and conclusions

of law. We granted Nava’s motion. Upon abatement, the trial court conducted a

hearing at which the State read facts from the police officer’s offense report into

the record. The court then entered findings that the stop was justified either under

the community caretaking exception or based upon a suspicion of reckless driving.

                                     Discussion

A.    Standard of Review

      We review a trial court’s ruling on a motion to suppress under a bifurcated

standard. See Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). The

trial court is the sole trier of fact and judge of the weight and credibility of the

evidence and testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.

2007). Accordingly, we defer to the trial court’s determination of historical facts if

the record supports them. Ford, 158 S.W.3d at 493. We review de novo the trial

court’s application of the law to those facts. Id. “[T]he prevailing party is entitled

to ‘the strongest legitimate view of the evidence and all reasonable inferences that

may be drawn from that evidence.’” State v. Castleberry, 332 S.W.3d 460, 465

(Tex. Crim. App. 2011) (quoting State v. Garcia-Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008)). A trial court’s ruling will be sustained if it is “reasonably


                                          4
supported by the record and correct on any theory of law applicable to the case.”

Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) (citing Willover v.

State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)).

B.    Post-Abatement Hearing

      As a preliminary matter, Nava contends that the trial court erred by hearing

evidence at the post-abatement hearing while the case was on appeal.          Nava

contends that by allowing post-abatement evidence into the record, the trial court

impermissibly altered the appellate record. The State agrees with Nava’s position.

Nava moves to strike from the record the trial court’s findings based on the post-

abatement evidence and the police report itself, which was never offered into

evidence or made a part of the record.         He further submits that without the

evidence added to the record after abatement, there is no evidence in the record to

support the trial court’s conclusion that the traffic stop was reasonable.

      We concur with the State and with Nava that the trial court erred in adducing

further evidence after we abated the case.         A pending appeal suspends all

proceedings in the trial court except those ordered by the Court of Appeals. See

TEX. R. APP. P. 25.2(g) (“Once the record has been filed in the appellate court, all

further proceedings in the trial court—except as provided otherwise by law or by

these rules—will be suspended until the trial court receives the appellate-court

mandate.”). When an appeal is abated, the trial court regains limited jurisdiction.



                                           5
Lewis v. State, 711 S.W.2d 41, 43–44 (Tex. Crim. App. 1986). However, “[a] trial

court is not authorized to conduct an evidentiary hearing [upon abatement] to

develop a record of new testimony and other evidence that was not presented at

trial, or developed on motion for new trial.” Id. at 43–44 (Tex. Crim. App. 1986)

(emphasis in original) (holding that trial court “exceeded [its] authority under the

mandate of abatement”). If such evidence is introduced, the appellate court may

not consider it. See id. at 44.

      We abated this case for the limited purpose of allowing the trial court to

enter findings of fact and conclusions of law. State v. Cullen, 195 S.W.3d 696, 699

(Tex. Crim. App. 2006). Because our abatement order did not provide for an

evidentiary hearing, the trial court erred when it heard evidence not before the

court when it decided Nava’s motion to suppress. Thus, we do not consider the

evidence adduced at the hearing after abatement, or the findings based on that

evidence.

C.    Reasonable Suspicion to Detain and Burden of Proof

      The Fourth Amendment guarantees a defendant’s right to be free from

unreasonable searches and seizures. U.S. CONST. amend. IV. Generally, this

requires a police officer to obtain a warrant based on probable cause before

detaining or searching a person. See Maryland v. Dyson, 527 U.S. 465, 466, 119 S.

Ct. 2013, 2014 (1999); Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007).



                                         6
However, neither a warrant nor probable cause is necessary if a search or seizure

falls within one of the “specifically established and well delineated exceptions” to

the warrant requirement. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct.

2130, 2135 (1993); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).

One such exception justifies searches and seizures by police officers in their

community caretaking roles. Cady v. Dombrowski, 413 U.S. 433, 446–47, 93 S.

Ct. 2523, 2530–31 (1973); Wright v. State, 7 S.W.3d 148, 152 (Tex. Crim. App.

1999).

      Our determination of this appeal turns in part on who bore the burden of

proof at the hearing. On a motion to suppress, the defendant bears the initial

burden of producing some evidence that rebuts the presumption of proper police

conduct. Abney v. State, 394 S.W.3d 542, 547 (Tex. Crim. App. 2013); Amador v.

State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).

      An allegation in the defendant’s motion that the defendant was arrested

without a warrant is sufficient to meet this burden. See Bishop v. State, 85 S.W.3d

819, 822 (Tex. Crim. App. 2002) (“By providing for a determination of the merits

of such a motion on the motion itself, Art. 28.01, § 1(6), established the motion to

suppress as the basis for an allegation of a Fourth Amendment violation.”). In this

case, Nava specifically challenged that the officer lacked any reasonable suspicion

to stop Nava. Once the defendant establishes the absence of a warrant, the burden



                                         7
shifts to the State to prove the warrantless search in question was reasonable under

the totality of the circumstances. Amador, 221 S.W.3d at 672–73. This burden

may be satisfied by proving the existence of an exception to the warrant

requirement. See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).

      In this case, the State contends, and the trial court found, that Officer

Ferguson had acted under the community caretaking exception or, alternatively,

that the Nava’s actions gave Officer Ferguson a reasonable suspicion to believe he

was engaging in reckless driving. We address these findings in turn.

      1.    Community Caretaking Exception

      Nava observes that, after disregarding the post-abatement police report

proffered into evidence, the record does not support the trial court’s finding that

the stop was reasonable based on the community caretaking exception. The only

description of the police encounter in the record is an unsworn summary from

Nava’s memorandum in support of his motion to suppress:

      “On September 16, 2013, Officer Ferguson was on patrolling [sic] the 2900
      block of Shaver. Officer Ferguson saw a Ford F-150 truck exit a parking lot
      and merge onto Shaver. Officer Ferguson saw an unidentified male appear
      to run after the truck and [sic] as it drove north on Shaver. The male stopped
      running, turned around, and began walking back to the parking lot entrance.
      Right as the passenger door opened, Officer Ferguson initiated a traffic stop
      on the Ford F-150, which was being driven by the Defendant. Officer
      Ferguson states in his Offense Report he stopped the vehicle because he
      believed a disturbance was occurring and subsequently arrested the
      defendant for DWI.”




                                         8
      Under the community caretaking exception, “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. In

Wright v. State, the Court of Criminal Appeals established four factors to

determine whether an officer acted reasonably within the community caretaking

function: (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 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.

at 152.

      For a search or seizure to be reasonable, the officer must actually be

motivated by a community caretaking purpose. Corbin v. State, 85 S.W.3d 272,

277 (Tex. Crim. App. 2002) (distinguishing Whren v. United States, 517 U.S. 806,

819, 116 S. Ct. 1769, 1777 (1996)). The trial court heard no evidence in this

regard.

      In response, the State discusses the four Wright factors, and relying upon

Nava’s memorandum, contends that the trial court reasonably could have

concluded from the unsworn legal brief alone that the officer acted reasonably in

stopping Nava. It cites Doiron v. State as an example of a case with similar facts

in which the court found that the police officer had acted reasonably. Doiron v.



                                          9
State, 283 S.W.3d 71, 75 (Tex. App.—Beaumont 2009, no pet.). In Doiron,

however, the officer testified that he pulled the defendant over out of concern for

the defendant’s welfare. Id. The record in the present case contains no affidavit or

other evidence of the basis for Officer Ferguson’s stop. While it may be that it

would have been reasonable for the officer to stop Nava in his community

caretaking function, without evidentiary support, there is no basis to conclude that

the officer intervened for this reason and not for ordinary investigative purposes.

      The State also cites Cantu v. State, in which we upheld a trial court’s

disposition of the defendant’s motion to suppress without conducting an

evidentiary hearing. No. 01-88-01029-CR, 1989 WL 40718 (Tex. App.—Houston

[1st Dist.] 1989, no pet.) (not designated for publication). Like Doiron, Cantu is

distinguishable from the present case because the trial court denied the defendant’s

motion based on both the motion to suppress and affidavits introduced before it.

Id. at *1. Here, because the trial court decided Nava’s motion without affidavits,

testimony, or other evidence, the memo in support of the motion to suppress,

without more, is insufficient to meet the State’s burden to show that the

community caretaking exception applies. See id.; see also Bishop, 85 S.W. 3d at

821; Rodriguez v. State, 844 S.W.2d 744, 745 (Tex. Crim. App. 1992) (considering

motion to suppress together with attached affidavit to determine motion’s merits).




                                         10
      2.     Reckless Driving

      Nava next contends that the evidence does not support the trial court’s

finding that Officer Ferguson reasonably suspected that Nava committed the

offense of reckless driving. The court found Nava’s act of opening the door of his

truck while exiting a parking lot “reckless per se.” We note, however, that the

unsworn legal memorandum, which contained the only description of events before

the trial court at the motion to suppress, does not state that Nava opened the

passenger door, or whether he was alone in the truck. It also does not state that the

truck was moving when the passenger door opened.

      A person commits the offense of reckless driving if the person drives a

vehicle in willful or wanton disregard for the safety of persons or property. TEX.

TRANSP. CODE ANN. § 545.401 (West 2011). As applied to reckless driving,

willful and wanton disregard means deliberate and conscious indifference to the

safety of others. Dixon v. State, 358 S.W.3d 250, 257 (Tex. App.—Houston [1st

Dist.] 2011, pet. ref’d).

      A police officer may temporarily detain a person for investigative purposes

if the officer reasonably suspects that the detained person is connected with a

crime. Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 1880 (1968); Wade v.

State, 422 S.W.3d 661, 668–69 (Tex. Crim. App. 2013). “A police officer has

reasonable suspicion for a detention if he has specific, articulable facts that, when



                                         11
combined with rational inferences from those facts, would lead him to reasonably

conclude that the person detained is, has been, or soon will be engaged in criminal

activity.” Wade, 422 S.W.3d at 668; accord Terry, 392 U.S. at 21–22, 88 S. Ct. at

1880. The reasonableness of a traffic stop undertaken for investigative purposes is

not determined by the actual motivations of individual officers. Whren, 517 U.S.

at 813, 116 S. Ct. at 1774.

       The trial court heard no evidence and was presented with no sworn

affidavits.   Thus, the circumstances surrounding the open door (for example,

whether the truck was stopped or moving and the speed at which it was moving),

as well as the officer’s account of the events, are absent from the record. The

record is silent as to the circumstances that would allow the trial court to determine

whether the officer reasonably suspected that Nava’s actions manifested a

deliberate and conscious indifference to the safety of others. Because neither side

proffered affidavits, and the trial court denied Nava’s request for a hearing, the

record contains no evidentiary support for the State to meet its burden to overcome

the allegation that the officer lacked reasonable suspicion to stop Nava.

       Accordingly, we hold that the trial court erred by denying Nava’s motion to

suppress based on the record before it.




                                          12
        3.      Harm Analysis

        Having concluded that error exists in the record, we perform the harm

analysis required by Rule 44.2(a) of the Rules of Appellate Procedure. See TEX. R.

APP. P. 44.2.

        When the defendant is denied the right to present a defense, the State gains

leverage in plea bargaining that it would otherwise lack. See Holmes v. State, 323

S.W.3d 163, 173–74 (Tex. Crim. App. 2009); McKenna v. State, 780 S.W.2d 797,

799–800 (Tex. Crim. App. 1989); Kraft v. State, 762 S.W.2d 612, 614–15 (Tex.

Crim. App. 1988). Thus, if we cannot say that a trial court’s failure to allow a

defendant to present a defense did not contribute to the defendant’s guilty plea, we

must reverse. See Holmes, 323 S.W.3d at 173–74 (citing McKenna, 780 S.W.2d at

799).

        Nava pleaded guilty immediately after the trial court denied his motion. A

successful motion to suppress the fruits of the traffic stop could have excluded the

evidence admitted against Nava.          Because we cannot conclude beyond a

reasonable doubt that the denial of Nava’s motion to suppress did not cause him to

plead guilty, the trial court’s error was not harmless.




                                          13
                                    Conclusion

      We reverse the judgment of the trial court and remand the case to the trial

court for further proceedings consistent with this opinion.




                                              Jane Bland
                                              Justice

Panel consists of CHIEF Justice Radack and Justices Bland and Huddle.

Publish. See TEX. R. APP. P. 47.2(b).




                                         14
