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).
2
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.
3