## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 14 - 00343 - CR
CAMERON BYRAM APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM COUNTY CRIMINAL COURT NO. 1 OF TARRA NT COUNTY

TRIAL COURT NO. 1332 976

---------- 

### DISSENTING OPINI ON

---------- I. Introduction I respectfully dissent. The majority fails to view the evidence and all its reasonable inferences in the light most favorable to the trial court’s denial of Appellant Cameron Byram’s motion to suppress and fails in its analy sis of the community
- caretaking exception to conduct an objective review focusing on what Officer Figueroa observed.2 II. The Facts At the motion
- to - suppress hearing, Fort Worth Police Officer Figueroa was the only witness. He testified that on July 4, 2013, at approximately 5:30 p.m. , he was patrolling the bar district in downtown Fort Worth . B ecause it was a holiday, there was “a lot of partying” going on and a lot of ve hicle and pedestrian traffic. Officer Figueroa stopped his patrol car at a red li ght at the intersection of 4th Street and Houston Street

. He had his windows down, and a black Chevy SUV pulled up at the light “right next” to the driver’s side of O fficer Figueroa’s patrol
car. The SUV had its passenger
- side window “rolled all the way down” giving Officer Figueroa an unobscured view into the SUV. Officer Figueroa looked over at the SUV and noticed a female hunched over in the front seat. He smelled the odor of alcohol wafting from the vehicle. The female passenger was not moving and Officer Figueroa was concerned that she was unconscious, had alcohol poisoning, or possi bly needed medical attention. Officer Figueroa could see the driver of the SUV and “yelled over to him,” asking if the female passenger was okay. Officer Figueroa had no doubt that the SUV’s driver heard him yell, but the driver ignored Officer Figueroa and “just look[ed] forward.” The light turned green; the driver ignored Officer Figueroa and drove off. This raised a further concern to Officer Figueroa that the SUV driver was trying to avoid contact with police; typically , people respond to questions from police officers. Because he was concern ed about the female passenger, O fficer Figueroa initiated a t raffic stop at the 400 block of West 4th Street . W hen he app roached3

the driver’s side of the SUV, he observed that the front
- seat female passenger had vomited all over herself and the passenger side of the SUV and that she was barely conscious. Officer Figueroa determined that the passenger “had some sort of medic al problem” and “immedia tely” called Medstar. An ambulanc e arrived within two minutes. Officer Figueroa determined that the SUV’s driver, Byram, was intoxicated and arrested him. III. Standard of Review We review a trial court ’ s ruling on a motion to su ppress evidence under a bifurcated standard of review. Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000)

. 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 at e v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)

. Therefore, we give almost tot al deference to the trial court’ s rulings on (1) questions of historical fact and (2) application
- of
- law
- to - fact questions that turn on an evaluation of credibility and dem eanor. Johnson v. State , 68 S.W.3d 644, 652

– 53 (Tex. Crim. App. 2002)

. However, when the trial court’ s rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court’ s rulings on mixed questions of law and fact. Id

. When the trial court does not make explicit findings of historical facts, as in the instant case, we review the evidence in the light mo st favorable to the trial court’ s ruling and assume the trial court made implicit findings of fact supporting its rul ing, so long as those findings are supported in the record. Carmouche, 10 S.W.3d at 327

– 28.4

I V . The Community - Caretaking Exception to the Warrant Requirement The law is well settled that, even without reasonable suspicion or probable cause that an offens e has been committed, a police officer may reasonably seize an individual th r ough the exercise of his community
- caretaking function. See, e.g. , Gonzales v. State , 369 S.W.3d 851, 854

– 55 (Tex. Crim. App. 2012) (holding community
- caretaking exception applie d when police officer observed vehicle pull onto shoulder of road in isolated area and pulled in behind vehicle to “see if everything was okay”); Wright v. State , 7 S.W.3d 148, 151

– 52 (Tex. Crim. App. 1999) (holding community
- caretaking exception applied w hen police officer observed front
- seat passenger leaning out window of moving car and vomiting)

. 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 circumstance s — would believe is in need of help. Wright , 7 S.W.3d at 151

. Determining whether an officer has properly invoked the community
- caretaking function is a two
- step process. Corbin v. State , 85 S.W.3d 272, 2 77 (Tex. Crim. App. 2002)

. First, the reviewing court must determine whether the officer was primarily motivated by a community
- caretaking purpose. Id. Second, the court mus t determine whether the officer’ s belief that assistance was required was reasonable. Id. Courts consider four nonexclusive fac tors in determining whether the officer’ s belief that the defendant needed help was reasonable: (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 or had5

acc ess to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others. Id. V. Analysis Under the first prong of the community
- caretaking analysis, t he trial court here im plicitly found that when Officer Figueroa stopped the SUV, he was primarily motivated by a community
- caretaking purpose

. 1 The evidence supports this implicit finding; Officer Figueroa testified that he stopped the SUV because of his concern for the female passenger. 2 See id

. (“The trial court, as the exclusive judge of credibility and finder of fact, could have concluded that [the officer] was primarily motivated by community caretaking concerns.”). Under the second pong of the community
- caretaking analys is, the trial court impli citly found that, given the totality of the circumstances, Officer Figueroa’s belief that assistance was required was reasonable. Viewed in the light most favorable to the trial court’s ruling, the evidence presented at the suppre ssion hearing established that a t approximately 5:30 p.m. on the Fourth of July holiday, t he female front
- seat passenger was hunched over and not moving in a vehicle that smelled of alcohol and was being driven in the “bar district” of downtown Fort Worth by a man who was unconcerned about her condition and refused to respond to Officer Figueroa’s inquiry about the woman’s status.

1 The trial court issued no express findings of fact or conclusions of law.
2 Byram does not challenge this component of the community
- caretaking exception.6

Looking to the four nonexclusive factors to assess the reasonableness of Officer Figueroa’s belief that the female passenger ne eded assistance, t he nature and level of the female’s distress was significant

–– she was not moving and appeared unconscious. The female’s location

–– in a vehicle driven by a man who appeared unconcerned about her well
- being

–– was precarious. Her access to assistance was doubtful for this same reason

–– the man driving the SUV exhibited no concern about his passenger in response to Officer Figueroa’s query about her condition. 3 And the female was a danger to herself; she appeared comatose and incapable of ask ing for help

. Thus, all four factors

–– the female’s level of distress, her location, her lack of access to assistance, and the danger to herself

–– support the reasonableness of Officer Figueroa’s belief that she needed assistance. Based on this objective a nalysis focusing on what Officer Figueroa observed , I would hold that the trial court properly determined that Officer Figueroa’s belief that the female passenger needed assistance under his

3 T he majority points out that hospitals were nearby and that the female was not alone

. But these two facts do not make Officer Figueroa’s decisio n to stop the SUV less reasonable because Byram ignored Officer Figueroa’s question concerning the female’s condition and exhibited no concern about her , which gave rise to a reasonable inference that he had no intention of providing assistance

. See Flore s v. State , No. 04
- 13
- 00548
- CR, 2014 WL 7340279, at *3 (Tex. App.

— San Antonio Dec. 23, 2014, no pet.) (mem. op., not designated for publication) (holding community
- caretaking exception applied when police officer observed car parked in McDonald’s parking l ot at 3:00 a.m. even though drive
through lane was open and employees were inside the restaurant because “there were no signs that anyone from the restaurant was assisting [the driver] ”)

.7

community
- caretaking responsibilities was reasonable under the to tality of the circumstances. See Gonzales, 369 S.W.3d at 856. Accordingly, after viewing the evidence and the reasonable inferences from the evidence in the light most favorable to the trial court’s ruling , I would hold that the trial court did not abuse its discretion in determining that Officer Figueroa was primarily motivated by community
- caretaking concerns and reasonably believed that assistance was required. See, e.g., Lollie v. State , 465 S.W.3d 312, 315

– 17 (Tex. App.

— Houston [14th Dist.] 2015, no pet.) (holding community
- caretaking exception appl i ed to officer’s decision to pull over car driving slowly on isolated, dark road) . Thus, the community
- caretaking exception to the warrant requirement applied. VI. Conclusion For the reasons set forth a bove, I would overrule Byram’s sole issue and affirm the trial court’s denial of his motion to suppress

. 4 Because the majority does not, I dissent. /s/ Sue Walker SUE WALKER JUSTICE PUBLISH DELIVERED: October 15, 2015

4 Because I would affirm the trial court’s denial of Byram’s motion t o suppress based on the community
- caretaking exception, I would not reach the State’s alternative argument that the stop was supported by reasonable suspicion.