In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00054-CR
AMBER RODGERS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the County Criminal Court No. 5
Denton County, Texas
Trial Court No. CR-2013-02785-B, Honorable Richard Podgorski, Presiding
July 22, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, Amber Rodgers, entered a plea of nolo contendere to the charge of
possession of a usable quantity of marijuana in an amount of two ounces or less. 1
Pursuant to a plea bargain, appellant was placed on deferred adjudication community
supervision for 12 months and ordered to pay a fine of $300. Prior to entry of the plea
bargain, appellant filed a motion to suppress any evidence obtained as the result of her
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b) (West 2010).
initial detention. The trial court overruled the motion and subsequently certified
appellant’s right to appeal.2 We will affirm.
Factual and Procedural Background
On March 9, 2013, at 2:00 a.m., Officer Ashley Simmons of the Carrollton Police
Department was on patrol when she observed a white Honda Civic with its lights on
parked in the parking lot that was shared by several businesses. The businesses
appeared to be closed. Simmons observed a female, who subsequently turned out to
be appellant, in the vehicle slumped over the steering wheel. Simmons turned her
police vehicle into the parking lot to conduct a welfare check on the woman in the
vehicle. Simmons approached appellant’s vehicle at a slight angle several feet behind
it. Before Simmons could exit her vehicle to check on appellant, appellant’s vehicle
began backing toward Simmons. Simmons turned her emergency lights on to get
appellant’s attention and to prevent her from backing into the police vehicle. Appellant
stopped her car and Simmons went to the driver’s side door to check on appellant.
Simmons testified that she pulled in behind appellant’s vehicle to check on appellant’s
condition and make sure there was no medical emergency. After making contact with
appellant, Simmons determined that there was no medical emergency but concluded
there was reason to detain appellant for driving while intoxicated.3
Appellant was subsequently charged by complaint and information with
possession of a usable quantity of marijuana in an amount of two ounces or less.
2
See TEX. R. APP. P. 25.2(a)(2)(A).
3
Ultimately, appellant was charged with misdemeanor possession of marijuana instead of driving
while intoxicated. The arrest affidavit, filed in the Clerk’s Record, indicates that the marijuana was found
in appellant’s purse after her detention for driving while intoxicated.
2
Appellant filed a motion to suppress the evidence seized, contending that there was no
reasonable suspicion to detain appellant. The trial court conducted a hearing on the
motion to suppress and denied it. Thereafter, the trial court filed findings of fact and
conclusions of law.
Following the trial court’s denial of the motion to suppress, appellant entered a
plea of nolo contendere to the misdemeanor marijuana charge, and this appeal
followed. Appellant contends in a single issue that Simmons lacked any reasonable
suspicion to detain her. Accordingly, she contends that the trial court erred in overruling
the motion to suppress and that we should reverse the trial court’s decision.
Disagreeing with appellant, we will affirm.
Standard of Review
We review a trial court’s denial of a motion to suppress under a bifurcated
standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).
We review the trial court’s factual findings for an abuse of discretion but review the trial
court’s application of the law to the facts de novo. Id. In reviewing the trial court’s
decision, we do not engage in our own factual review; rather, 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. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).
Therefore, we give almost total deference to the trial court’s rulings on (1) questions of
historical fact, especially when based on an evaluation of credibility and demeanor, and
(2) application-of-law-to-fact questions that turn on an evaluation of credibility and
demeanor. See Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Appellate
courts review de novo “mixed questions of law and fact” that do not depend upon
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credibility and demeanor. Id. If the trial court’s decision is correct under any theory of
law applicable to the case, it will be sustained. Armendariz v. State, 123 S.W.3d 401,
404 (Tex. Crim. App. 2003) (en banc). Additionally, the legal question whether the
totality of circumstances justified the officer’s actions is reviewed de novo. Hudson v.
State, 247 S.W.3d 780, 784 (Tex. App.—Amarillo 2008, no pet.).
Community Caretaking
Community caretaking is a recognized exception to the warrant requirement of
the Fourth Amendment to the United States Constitution. See Cady v. Dombrowski,
413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973). The Texas Court of
Criminal Appeals recognized the community caretaking exception in Wright v. State, 7
S.W.3d 148, 151 (Tex. Crim. App. 1999) (en banc). In Cady, the United States
Supreme Court held that police officers may engage in community caretaking function
“totally divorced from the detection, investigation, or acquisition of evidence relating to
the violation of a criminal statute.” Cady, 413 U.S. at 441. However, the court further
acknowledged that the Fourth Amendment requires only reasonableness. See id. at
439. Texas jurisprudence has held that “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.” Gonzales v. State, 369
S.W.3d 851, 854 (Tex. Crim. App. 2012) (quoting Wright, 7 S.W.3d at 151). Further, the
officer’s invocation of the community caretaking function must not be primarily motivated
by a non-community caretaking purpose. Id.
In order to properly evaluate the invocation of the community caretaking function,
we are directed to first engage in a two-step inquiry: “(1) whether the officer was
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primarily motivated by a community-caretaking purpose; and (2) whether the officer’s
belief that the individual needs help was reasonable.” Id. at 854-55 (citing Corbin v.
State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002)).
If we find that an officer was primarily motivated by the community caretaking
purpose, we are further required to review the reasonableness of the officer’s belief that
the citizen needs assistance by reviewing a four part non-exclusive list of factors. Id.
The factors we may consider are: “(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. (citing Wright, 7 S.W.3d at 151-52).
Trial Court Findings of Fact and Conclusions of Law
We begin our analysis by reviewing the findings of fact and conclusions of law
entered by the trial court following the pre-trial hearing on the motion to suppress. The
trial court made the following findings of facts:
(1) Officer Ashley Simmons, a certified peace officer for the State of
Texas, was driving north bound near the intersection of Frankford
and Josey in the city of Carrollton, Denton County, Texas at
approximately 0200 hours on March 9, 2013.
(2) Officer Simmons observed a white Honda Civic in an empty parking
lot with its lights on.
(3) The car was parked near the entrance of the parking lot. There is a
total of two entrances and exits to the parking lot. The businesses
of that parking lot were closed.
(4) In the same area, at the intersection of Josey and Frankford, there
are other businesses that were also closed. On the southwest
corner of the intersection[,] there is a CVS pharmacy, a pizza place,
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and other small businesses. On the [southeast] corner, there is
another large shopping center with a Texaco, Dollar Store, and
other small businesses. On the northeast corner, there is a
Walgreens pharmacy. All businesses were fairly close to where the
[appellant]’s vehicle was parked. All businesses were closed.
(5) As Officer Simmons drove closer to the vehicle, she noticed a
female slumped over the steering wheel. Officer Simmons did not
know how long the [appellant] was slumped over the wheel of the
vehicle and she did not know why the [appellant] was slumped over
the wheel of the vehicle. There was no one else in the vehicle and
no other cars in the parking lot.
(6) Officer Simmons pulled in to the lot to check on the [appellant]’s
welfare. She did not know if the [appellant] was passed out,
unconscious, or needed medical assistance. Her primary concern
was to make sure the [appellant] was ok.
(7) When Officer Simmons stopped behind the [appellant]’s vehicle,
the [appellant] placed her car in reverse and began to pull out.
Officer Simmons activated her emergency lights in an attempt to
gain the [appellant]’s attention. At the time that the [appellant]
began reversing, Officer Simmons was still not aware if the
[appellant] needed assistance, if she was unconscious while
reversing, or if her foot had slipped off the brake.
(8) Officer Simmons testified that the manner in which the [appellant]
reversed was unsafe because the [appellant]’s vehicle would have
collided with Officer Simmons’[s] patrol car had she continued
backing out. The [appellant] violated [T]ransportation [C]ode
545.415 and 547.004. Even though the violations occurred after
Officer Simmons pulled in behind the [appellant], Officer’s (sic)
Simmons was primarily concerned with the [appellant]’s welfare.
(9) The [appellant] responded to Officer Simmons’[s] lights by bringing
her vehicle to a stop.
(10) Officer Simmons testified that when she activated her emergency
lights, the Defendant was being detained for a welfare check.
(11) Officer Simmons made contact with the [appellant] and asked if she
was ok and why the [appellant] was slumped over the wheel. A
DWI investigation ensued, and the [appellant] was later arrested for
Driving While Intoxicated.
(12) The Court finds Officer Ashley Simmons’[s] testimony credible.
6
The trial court then entered conclusions of law that found that Simmons properly
exercised her community caretaking function and that appellant’s detention was lawful.
Being mindful of the standard of review that we, the reviewing court, do not make an
independent review of the facts, but, instead, defer to the trial court’s findings as the
sole trier of fact and judge of the credibility of the witnesses and the weight to be given
their testimony, we begin our analysis. See St. George, 237 S.W.3d at 725.
Analysis
In reviewing the record, it is clear that Simmons’s initial reaction was to turn into
the parking lot to see if appellant was okay. This supports the trial court’s finding of fact
that Simmons’s primary motivation in detaining appellant was to perform a community
caretaking function. See Gonzales, 369 S.W.3d at 854. Appellant contends that
Simmons’s primary motivation was not community caretaking because she pulled in
behind appellant’s vehicle and “sat for an unknown period of time.” While it is true that
Simmons could not say precisely how long it took her to get to appellant after she
entered the parking lot and stopped her patrol car, the record does not indicate that it
was more than a momentary pause caused by the necessity of Simmons having to
activate her emergency lights to keep appellant from backing into her patrol car.
Simmons testified that, as soon as appellant stopped backing up, she made contact
with her. There is nothing in the record to demonstrate that Simmons waited to make
contact with appellant. Further, the trial court found that Simmons’s testimony was
credible. We defer to this finding and conclude that Simmons made contact with
appellant as quickly as was possible under the situation. See Ford, 158 S.W.3d at 493.
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We now turn our attention to the issue of whether Simmons’s belief that appellant
needed help was reasonable. See Gonzales, 369 S.W.3d at 854-55. To assist a
reviewing court in ascertaining whether the officer’s belief was reasonable, we examine
the four non-exclusive factors first proposed by the Texas Court of Criminal Appeals in
Wright. See 7 S.W.3d at 151-52.
The first factor we examine is the nature and level of distress exhibited by
appellant. See Gonzales, 369 S.W.3d at 855. The record reflects that Simmons, a
certified peace officer, observed a vehicle in an empty parking lot with its lights on and
the driver slumped over the steering wheel at 2:00 in the morning. Simmons testified
that appellant appeared to be alone in the vehicle. These observations are the earmark
of a need for assistance. The community caretaking exception is designed to be utilized
by an officer so that the officer may give assistance to a member of the public in times
of distress. See Yocom v. State, No. 02-03-00181-CR, 2004 Tex. App. LEXIS 3195, at
*20 (Tex. App.—Fort Worth Apr. 8, 2004, pet. ref’d) (not designated for publication).
This factor weighs in favor of the reasonableness of Simmons’s decision to come to
appellant’s assistance. Appellant argues that Simmons’s testimony only demonstrates
that she observed “some unknown part of [appellant]’s body over the steering wheel for
an unknown amount of time, for an unknown reason.” This, according to appellant,
means there was not enough distress demonstrated to necessitate a detention. Initially,
we observe that Simmons did not testify that an unknown part of appellant’s body was
slumped over the steering wheel. Rather, she testified that appellant’s upper body was
slumped over the steering wheel. Appellant’s contention would lead to the conclusion
that an officer has no reasonable belief to instigate a community caretaking detention
unless the officer already knows all operative facts. This is nonsensical given the
8
purpose of the community caretaking exception. The entire reason for the detention is
to ascertain whether this member of the public needs assistance. See Corbin, 85
S.W.3d at 276.
The second factor, the location of the individual, likewise supports the
reasonableness of Simmons’s belief that appellant was in need of assistance. The
record reflects that appellant’s vehicle was in a deserted parking lot, surrounded by
closed businesses, at 2:00 in the morning. These facts weigh in favor of the
reasonableness of Simmons’s belief that appellant was in need of assistance.
The third factor also weighs in favor of appellant’s need for assistance. Appellant
was alone in the vehicle. From Simmons’s perspective, if appellant was having any
type of vehicle or medical emergency, she had no assistance, other than what the
officer could provide. Appellant contends that, in this day and time, Simmons should
have realized that appellant had a cell phone and could call for assistance, if assistance
was needed. This analysis fails because it assumes two facts. First, it assumes that
appellant had a cell phone, a fact totally unknown to Simmons. Second, it assumes
appellant was not in distress and able to properly seek assistance. Such an assumption
would negate any use of the community caretaking function to assist a distressed
citizen. If we accept appellant’s propositions, there can never be a case of the proper
exercise of the community caretaking function.
Finally, the extent to which appellant might pose a danger to herself or others
weighs in favor of the reasonableness of Simmons’s decision to invoke the community
caretaking exception. All Simmons knew as she approached appellant’s vehicle was
that a female appeared to be slumped over the steering wheel of her car. Simmons
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testified she could not tell if appellant was passed out or otherwise unconscious. While
the facts later demonstrated that appellant became at least somewhat conscious,
Simmons’s initial observations lend credence to her belief that appellant might pose a
danger to herself.
Based upon a review of the four factors enunciated in Wright, we find that
Simmons’s belief that appellant was in need of assistance was reasonable. 7 S.W.3d at
151-52. The trial court’s decision to deny the motion to suppress was not an abuse of
discretion. See Turrubiate, 399 S.W.3d at 150. Accordingly, appellant’s contentions
that the community caretaking exception was not properly invoked are overruled.
Having decided that Simmons’s detention of appellant pursuant to the community
caretaking function was proper we do not need to review appellant’s two additional
complaints. See TEX. R. APP. P. 47.1.
Conclusion
Having overruled appellant’s issue regarding the community caretaking
detention, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Do not publish.
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