                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00195-CR


JASON DEARMOND                                                       APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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        FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY
                 TRIAL COURT NO. CR-2014-08239-D

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                           DISSENTING OPINION

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       The arresting officer testified that he stopped Appellant both (1) for

violating the transportation code by driving with one or two flat tires (the number

is unclear) and (2) in the officer’s role as a community caretaker because the

officer thought Appellant might need help. The majority also conflates these two

justifications.   As the Texas Court of Criminal Appeals has explained in
discussing the community-caretaking function as an exception to the warrant

requirement, the law is well established that

      as a 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.
      However, a police officer may not properly invoke his community
      caretaking function if he is primarily motivated by a non-community
      caretaking purpose. 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.1

Indeed, this court has recognized that “[t]he community caretaking function . . . is

totally divorced from the detection, investigation, or acquisition of evidence

relating to the violation of a criminal statute.”2

      The trial court and the majority agreed that the officer stopped Appellant, in

part, because he believed (1) that Appellant had violated the transportation code

prohibition against driving a dangerous car3 and (2) that because Appellant was

violating the law by driving with a flat tire, he might need help, triggering a

community-caretaking response.           Appellant argued that a specific statute

addresses driving with a flat tire; that violation of the statute requires the metal

      1
        Gonzales v. State, 369 S.W.3d 851, 854–55 (Tex. Crim. App. 2012)
(citations and internal quotation marks omitted).
      2
       Hernandez v. State, 376 S.W.3d 863, 874 (Tex. App.—Fort Worth 2012,
no pet.) (citations and internal quotation marks omitted) (relying on Cady v.
Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528 (1973), and Corbin v.
State, 85 S.W.3d 272, 276–77 (Tex. Crim. App. 2002)).
      3
       See Tex. Transp. Code Ann. § 547.004(a)(1) (West 2011).


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rim of the tire to touch the pavement;4 and that the record is clear that the tire, not

the rim, was contacting the pavement, requiring a finding that there was no

reasonable suspicion to support the officer’s decision to stop Appellant for a

traffic violation. At the same time, though, because the officer’s actions taken in

fulfilling his community-caretaking function were not totally divorced from crime

detection, nor even the primary justification for the detention, community

caretaking cannot justify the stop.

      Because the majority does not address the true issues in this case, I must

respectfully dissent.


                                                     /s/ Lee Ann Dauphinot

                                                     LEE ANN DAUPHINOT
                                                     JUSTICE

PUBLISH

DELIVERED: March 3, 2016




      4
       See id. § 547.612.


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