NO. 07-04-0004-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D SEPTEMBER 24, 2004

______________________________

JOSE L. LOSOY

A, Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 137 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2002-400,564; HON. CECIL PURYEAR, PRESIDING

_______________________________ Before QUINN, REAVIS and CAMPBE LL, JJ. Appellant, Jose L. Losoya, appeals his conviction for f elony driving whil e intoxic ated. His sole issueinvol ves the trial court’s decision to deny his motion to suppress. He contends that the court erre d since the detai ning officer had neither reas onable suspici on to stop appellant nor a reasonable belief tha t he (the officer) was executing a co mmunity care-taking stop. We affirm the judgment of the tri al court. Standard of Revi

ew The standard of rev iew is one of abused discr etion. Guzm an v. State, 955 S.W.2d 85 (Tex. Cr im. App. 1997). Thus, we defer tothe trial court’s findings of his torical fact bu t2

revie w, de novo , the manner in which it applied the law to those facts. Id. at 89. Moreover,
we need not rely solely upon the reasons given by the trial court to uphold its decision for the decis ion mu st be upheld if supported by any leg al theory. Armendari z v . State, 123 S.W.3d 401, 40 4 (Tex . Cri m. App. 2003), cert. denied, ___U.S. ___, 124 S.C t. 1883, 158 L.Ed.2d 469 (2004). Facts According to the record, Officer Phillip Johnson, the only w itness at the s uppression hearing, was headed eas tbound toward s th e intersectio n of Indiana Avenue and Brownfield Highway in Lubbock, Texas . The time was 1 :30 a.m. Upon appr oaching the i ntersection, the officer slowed and stopped since h e had a red lig ht. Facing hi m across the i ntersection
was a vehicle positioned to turn south on to Indiana . The vehicle was stopped, however,
even though it had a green arr ow permitt ing the tur n. When Johnson’s light turned green, he passed the stopped vehicle an d saw its driver, i.e. appellant, w ith his eyes closed, head tilted to the side, and mouth open. In response to what he s aw, Johnson turned his sq uad
car around and eng age d his emergenc y lig hts to keep other

s on the road from colliding
w ith appellant’ s vehicl e. As he did s o, he noticed that appellant had made t he turn and
was proceeding down Indiana, “swerving back and forth.” The of ficer fo llowed, intermittently eng agi ng h is s ire n in an ef f or t to stop appell ant. The latter d id not stop for the officer, however. Instead, and while hee ding the occasional traffic s top sign and signal, appellant

drove on until he reached his home and parked the vehicle on both his dr iveway and law n. O ffice r Jo hnso n ar rived mo ment ari ly ther eaft er and me t with appel lant after appellant

exited his car. After noticing that appellant w as stumbling , unable to stand, was3

slurring his speech, and smelling of alcohol, the policeman adv ised him that he was being arrested for evading arre st or detention and for driv ing whi le intoxi cated. Application of

Law A police officer may reasonabl y seiz e an ind ividual in exerci se of his community caretaking function irre spective o f whet her he had reasonable s uspicion to bel ieve that criminal activity was afoot or probable ca use t o arrest. Corbin v. St ate , 85 S.W.3d 272, 276 (Tex. Cr im. App. 2002). Furt hermore, in ass essing w hether the stop w as justified on this basis, the court must engage in several exercises. First, itmust determine i f the officer
was actually

motivated by

a desire to pr

ovide for thewelfare of the detainee. Id. at 276-77. If it should be found that the o fficer was so motivated, t hen the court nex t must gauge the reasonableness of the officer’s beli ef thatthere exi sted a need for car etaking. Id. at277. Thi s is don e by considering various factors such as 1) the nature an d level of distress previously

exhibited by the potenti al detainee, 2) the locati on of the indiv idual, 3) w hether
or not the indiv idual was

alone or had access to hel p independent of the officer, and 4) the extent to which the detainee, if not assisted , presented a danger to hi mself or others. Id. Re garding the matter of exercising his caretaking functio n, the officer at ba r sa w appellant stopped ata green li ght in the w ee hours of the morni ng wit h his head til ted to the side , eye s clos ed, and mouth open. These c ircumstances caused him to w onder whether appellant was unconscious , the vict im of some malady s uch as a heart at tack, or intoxicated. And, because of that, he decided to approach and stop appellant to deter mine why he appeared as he di d. Thus, the reco rd containsevidence upon which a t rial court could have reasona bly concl uded that Officer Johns on “wa s primaril y motiv ated by4

community

caretaking concerns.” Id. That is, while the p olice officer menti oned that he wondered if appellant was drunk, the trial court, like that in Corbin , cou ld ha ve discounted this reason for turni ng to inv estigate ( given i ts authority to weig h the evide nce a nd re solve conflicts therein) and instead conclu ded that the officer w as primaril y motiv ated by a desire to investi gate wheth er appellant needed help. Id. Indeed, the officer testified that upon turning aroun d, h e engaged hi s emergency lights to prevent vehicles from col liding w ith appell ant. Tha t is some ev idence from whi ch it reasonabl y could be i nferred that appellant’s safety, and that of others on the roa d, was foremost in the policeman’s mind. Addi tion ally, our Court of Criminal Appeals has stated that “it c ertainly would be reasonable for a police officer to stop an individ ual who appears to be falling asleep while driving .” Id. at 278. And, that appears to be the v ery scenario that un f olded before Johnson. Again, appel lant’s head w as cocked to thesi de, his mouth was open and his eyes were closed while stopped at a gr een light. Moreover , that he swerved to and fro and failed (for whate ve r reason) to r espond to the officer’ s emergency lights an d siren lends further support to the inference that appellant may have been suffering from some mental
or physical impa irme nt or may ha ve been lapsing into and out of consc iousness. Indee d, itis difficu lt to be un awa re of the glar e of flashing emerg ency lig hts atop a police car at night or the sound of a siren unles s some conditio n restrict s an indiv idual from percei ving them. Thus, there exists some evidence ofreco r d upo n which the t rial c ourt coul d have reasonably found that the nature and level of distress being ex hibited by appellant was relatively high. We couple this to t he facts that he was alone in the ca r whil e drivi ng on a public road within city boundaries and through a residential area. And, up on so combining5

the evidence, w

e encounter ba sis up on which t he officer could have deduced that appellant posed a danger to hims elf and no one else w as availab le to help him. In short, the record contains evidence perm itting the trial court to reasonably conclude that factors menti oned in Corbin authorized Johnson’s intervention as part of his caretaking function. More im port antl y, the very same evidenc e authorizi ng the inter vention also gives rise to another basis upon which the trial court could have denied the motion to suppress. It i nvo lv es a converg enceof t he caretaking function and probabl e cause to arrest. Again, w

e have no doubt that

the initial circumstances unfolding before the officer allowed him to stop appel lant to inv estigate w hether he needed help . So, J ohnso n was justified in acti vati ng hi s eme rgency lights and siren to effectuate thestop. In turn , that appellant

failed to comply

and stop evi nces crimina l activi ty. Simpl y put, one is oblig ated to stop once an off icer has signaled for him to do so. Winter v. State, 902 S.W.2d 571, 573-74 (Tex. App.–H ouston [1 st Dist.] 1995, no pet.). Failing to comply with th e dire ctive givesrise to pr

obable cause to ar rest the person. Martinez v. State , 644 S.W.2d 104, 108- 09 (Tex. App.–San Antonio 1982, no writ). So, the trial court could have also reasonably concluded that Officer Johnson had probable caus e to seize appellant once appellant did stop. In sum, the evi dence of record su pports sev eral theorie s upon which the trial court could have legitimatelydecided to deny appellant’s motion to supp ress. Because it does,
we over rule the soleissue before us and affirm the judgment of the trial cour t.

Brian Quinn Justice Do not publish

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