COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-09-391-CR

ALICIA MARGUERITE MUNOZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

Appellant Alicia Marguerite Munoz was arrested and charged with driving 

while intoxicated (DWI). She entered a plea of nolo contendere, and the trial 

court sentenced her to 120 days‘ confinement and a $600 fine. The court 

suspended the jail portion of the sentence and placed her on twelve months‘

 

1See Tex. R. App. P. 47.4.
2

community supervision. Munoz now appeals. In a single point, Munoz claims 

the trial court erred by denying her motion to suppress. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

At 2:46 a.m. on March 28, 2008, Carrolton Police Officer Geoff Smyder 

observed Munoz traveling on Hebron Parkway at twenty-five miles per hour in a 

posted forty-five miles-per-hour zone. Officer Smyder then observed Munoz pull 

into the small, dimly lit parking lot of Discount Moving Boxes and stop for twenty 

to thirty seconds with her car running. The parking lot has only one ingress and 

egress onto Hebron. Believing Munoz was lost and concerned for her welfare, 

Officer Smyder pulled his patrol vehicle into the parking lot, activated his 

overhead lights, and approached Munoz‘s vehicle to offer assistance. Munoz 

was alone in her vehicle. She rolled down her window as Officer Smyder was 

approaching her vehicle. The officer asked her if she was lost, and she replied 

that she was trying to get home. Immediately upon speaking with Munoz, Officer 

Smyder noticed that her speech was very slurred and that a strong odor of 

alcohol emanated from her breath. Officer Smyder then detained Munoz to 

investigate her for DWI. He requested a back-up officer, and one arrived shortly. 

Officer Smyder administered the horizontal gaze nystagmus test, the walk and 

turn test, and the one leg stand test on Munoz. Munoz failed all three field 

sobriety tests, and Officer Smyder arrested her for DWI. She later agreed to give 

a specimen of her breath. Two separate tests indicated that she had a BAC of 

.123 and .124.
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Munoz filed a motion to suppress, complaining that Officer Smyder had 

detained her without reasonable suspicion or probable cause and had arrested 

her without a warrant. Officer Smyder was the sole witness to testify at the

suppression hearing. There was not an in-car video for the court to review; 

Officer Smyder testified that his video recorder was probably not working at the 

time and that he was unaware whether the back-up officer who responded to the 

scene had activated his video recorder. At the conclusion of the hearing, the trial 

court took the motion to suppress under advisement and requested that the 

parties file bench briefs on the validity of the detention. Both parties did so, and

Munoz requested findings of fact and conclusions of law, which the trial court 

filed. 

The trial court denied Munoz‘s motion to suppress and found that, given 

the totality of the circumstances, a reasonable person could have believed that 

Munoz was in need of help and found that Officer Smyder acted reasonably

when he stopped Munoz‘s vehicle out of concern for her welfare. In addition, the 

trial court found that Officer Smyder‘s detention of Munoz fell within the 

community caretaking exception to the warrant requirement of the Fourth 

Amendment. 

III. MOTION TO SUPPRESS

In her sole point, Munoz complains that the trial court erred by denying her 

motion to suppress because Officer Smyder had no legitimate reason for 

stopping her vehicle. She contends that there was no evidence of an emergency 
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or medical need that would have prompted a reasonable officer to initiate the 

detention. 

A. Standard of Review

We review a trial court‘s ruling on a motion to suppress evidence under a 

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. 

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 

In reviewing the trial court‘s decision, we do not engage in our own factual 

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. 

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). 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. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. 

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), 

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 

2006). Therefore, we give almost total deference to the trial court‘s rulings on (1) 

questions of historical fact, even if the trial court‘s determination of those facts 

was not based on an evaluation of credibility and demeanor, and (2) applicationof-law-to-fact questions that turn on an evaluation of credibility and demeanor. 

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. 

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 

2002). But when application-of-law-to-fact questions do not turn on the credibility 

and demeanor of the witnesses, we review the trial court‘s rulings on those 
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questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

When the trial court makes explicit fact findings, we determine whether the 

evidence, when viewed in the light most favorable to the trial court‘s ruling, 

supports those fact findings. State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. 

App. 2006). When the trial court grants a motion to suppress and files 

accompanying findings of fact and conclusions of law, and the sole witness at the 

motion to suppress hearing is the arresting officer, the only question before us is 

whether the trial court properly applied the law to the facts it found. See State v. 

Gray, 158 S.W.3d 465, 467, 469 (Tex. Crim. App. 2005); Guzman, 955 S.W.2d at 

86–87, 89. 

B. Community Caretaking Function

The Fourth Amendment to the United States Constitution protects against 

unreasonable searches and seizures. U.S. Const. amend. IV. An officer‘s 

community caretaking function is a reasonable exception to the warrant 

requirement of the Fourth Amendment, and the exception is narrowly applied. 

Wright v. State, 7 S.W.3d 148, 151–52 (Tex. Crim. App. 1999). Under the 

community caretaking exception, an officer may stop and assist an individual 

whom a reasonable person would believe is in need of help, given the totality of 

the circumstances. Id. Reasonable suspicion or probable cause that an offense 

has been committed is not required. Corbin v. State, 85 S.W.3d 272, 277 (Tex. 

Crim. App. 2002). In fact, an officer‘s community caretaking function must be
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―totally divorced from the detection, investigation, or acquisition of evidence 

relating to the violation of a criminal statute.‖ Cady v. Dombrowski, 413 U.S. 433, 

441, 93 S. Ct. 2523, 2528 (1973). Thus, ―a police officer may not properly invoke 

his community caretaking function if he is primarily motivated by a noncommunity caretaking purpose.‖ Corbin, 85 S.W.3d at 277 (citing Wright, 7 

S.W.3d at 151).

Determining whether the officer properly invoked his community caretaking

function is a two-step process. State v. Woodard, No. 02-09-00052-CR, 2010 

WL 1268035, at *3 (Tex. App.—Fort Worth Apr. 1, 2010, pet. filed) (citing Corbin, 

85 S.W.3d at 277); Swaffar v. State, 258 S.W.3d 254, 260 (Tex. App.—Fort 

Worth 2008, pet. ref‘d) (citing Corbin, 85 S.W.3d at 277). First, the reviewing 

court must determine whether the officer was primarily motivated by a community 

caretaking purpose. Woodard, 2010 WL 1268035, at *3. Second, the court must 

determine whether the officer‘s belief that his assistance was required was 

reasonable. Id.

To determine whether an officer acted reasonably in exercising his 

community caretaking function, the following list of non-exclusive factors may be 

considered: (1) the nature and level of distress exhibited by the individual; (2) 

the individual‘s location; (3) whether the individual was alone or had other access 

to assistance besides that of the officer; and (4) to what extent the individual, if 

not assisted, presented a danger to himself or others. Wright, 7 S.W.3d at 151–

52. ―Because the purpose of the community caretaking exception is to allow an 
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officer to  ̳seize‘ and assist an individual whom he reasonably believes is in need 

of help, the first factor is entitled to the greatest weight.‖ Corbin, 85 S.W.3d at 

277. ―The greater the nature and level of distress exhibited, the more likely the 

police involvement will be a reasonable exercise of the community caretaking 

function.‖ Id. However, the weight of the first factor will not always be 

dispositive, and the other three remaining factors, and any other relevant factors,

help to define the first factor. Id.

C. Community Caretaking Function Was Properly Invoked

Here, regarding the first step––determining whether Officer Smyder was 

primarily motivated by his community caretaking function––no evidence in the 

record suggests that Officer Smyder was motivated by any other purpose than 

one of community caretaking. He testified that he was not concerned with 

whether Munoz was engaged in, or about to be engaged in, any type of criminal 

activity, that he thought Munoz was lost—although he stated in his report that he 

stopped her for a ―welfare check‖ because it ―sounded better‖—and that her 

safety or well-being was his primary concern. The trial court found that Officer 

Smyder‘s testimony was ―credible, persuasive, and straightforward.‖ The trial 

court reasonably could have found that Officer Smyder was primarily motivated 

by his community caretaking function. See Corbin, 85 S.W.3d at 277; Gibson v. 

State, 253 S.W.3d 709, 715 (Tex. App.—Amarillo 2007, pet. ref‘d); Franks v. 

State, 241 S.W.3d 135, 144 (Tex. App.—Austin 2007, pet. ref‘d); Bilyeu v. State, 

136 S.W.3d 691, 698 (Tex. App.—Texarkana 2004, no pet.).
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We next determine whether the trial court properly applied the law to its 

factual findings regarding whether Officer Smyder reasonably believed his 

assistance was required. Applying the first Wright factor (the nature and level of 

distress exhibited by Munoz), Munoz was traveling at almost half the posted 

speed limit, twenty-five miles per hour in a forty-five mile-per-hour zone. 

Although there is not a posted minimum speed limit on Hebron Parkway and 

driving below the speed limit is not a traffic violation, a reasonable person could 

view driving at almost half the posted speed limit as a sign of distress. See 

Bilyeu, 136 S.W.3d at 698 (holding officers justified in believing significant level 

of distress exhibited when defendant traveled at ten miles per hour, which was 

fifteen miles per hour less than the posted speed limit); Ortega v. State, 974 

S.W.2d 361, 364 (Tex. App.—San Antonio 1998, pet. ref‘d) (holding stop fell 

within community caretaking exception where defendant traveled between 

eighteen and twenty miles per hour, less than half of the posted fifty-miles-perhour speed limit); see also Tex. Dep’t of Pub. Safety v. Svoboda, No. 04-05-

00796-CV, 2006 WL 1684793, at *1, *3 (Tex. App.—San Antonio June 21, 2006, 

pet. denied) (mem. op., not designated for publication) (holding community 

caretaking function was justified when defendant was traveling twenty miles per

hour under the speed limit in the early hours of the morning).

Additionally, assisting a driver who appears to be lost—as Munoz 

appeared to Officer Smyder—can also fall within an officer‘s community 

caretaking function. See Chilman v. State, 22 S.W.3d 50, 53, 55 (Tex. App.—
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Houston [14th Dist.] 2000, pet. ref‘d) (holding exception applied when officer 

detained occupants to possibly provide directory assistance because they 

appeared lost); but see Salinas v. State, 224 S.W.3d 752, 755–57 (Tex. App.—

San Antonio 2007, pet. ref‘d) (holding exercise of function was not objectively 

reasonable when officer thought driver was lost because he pulled further out 

into a T-intersection than normal before turning). Here, the trial court found that 

―[t]he unusually low speed that [Munoz] was traveling and the fact that [she] 

pulled into a parking lot of a closed business indicated a level of distress that led 

Officer Smyder to reasonably believe that she was lost and in need of 

assistance.‖ Therefore, the first Wright factor supports the application of the 

community caretaking function. 

Regarding Munoz‘s location (the second Wright factor), Munoz stopped in 

a closed business‘s ―small and dimly lit‖ parking lot ―with only one ingress and 

egress onto Hebron Parkway.‖ Munoz‘s location also supports the application of 

the community caretaking function. See Morfin v. State, 34 S.W.3d 664, 667 

(Tex. App.—San Antonio 2000, no pet.) (holding exception applied when officer 

stopped car in a dark, high crime area, even when there were multiple 

passengers and no one exhibited any signs of distress).

Regarding whether Munoz was alone or had access to assistance (the 

third Wright factor), the record indicates, and the trial court found, that Munoz 

was alone in her car and that she ―had no access to assistance independent of 

Officer Smyder.‖ Officer Smyder testified that there was a house next to the 
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isolated parking lot but that no one was outside the house at that time of night.

There were also businesses and churches nearby, but all were closed.

Therefore, it was not unreasonable for Officer Smyder to conclude that Munoz 

did not have access to assistance. See, e.g., Doiron v. State, 283 S.W.3d 71, 

75 (Tex. App.—Beaumont 2009, no pet.) (holding community caretaking 

exception applied when one of the four factors supporting the stop was that

defendant was alone in his vehicle with no one but the officer to lend him aid); 

Bilyeu, 136 S.W.3d at 698 (holding stop was within community caretaking 

function when defendant was traveling alone in her vehicle fifteen miles per hour 

under the posted speed limit); see also Yocom v. State, No. 02-03-00181-CR, 

2004 WL 742888, at *7 (Tex. App.—Fort Worth Apr. 8, 2004) (mem. op., not 

designated for publication) (holding community caretaking exception applied 

when one of the four factors supporting the stop was that defendant was alone in 

his vehicle, asleep or unconscious, and stopped at a closed business late at 

night with no other cars around), pet. ref’d, 149 S.W.3d 159 (2004).

Finally, the fourth Wright factor––whether Munoz posed a danger to herself 

or others if not assisted––weighs against the application of the community 

caretaking function. Officer Smyder testified that he did not see anything to 

indicate that Munoz was a danger to herself or others, and the trial court did not 

make any historical finding of fact on whether Munoz appeared to be in danger. 

However, not all factors must support the application of the exception in 
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determining whether the officer acted reasonably in exercising his community 

caretaking function. See Corbin, 85 S.W.3d at 277; Wright, 7 S.W.3d at 152.

Applying the Wright factors to the facts found by the trial court, we hold 

that Officer Smyder‘s exercise of his community caretaking function was 

reasonable and that the trial court properly applied the law to the historical facts it 

found and did not err in denying Munoz‘s motion to suppress.2 See Gray, 158 

S.W.3d at 467, 469; Guzman, 955 S.W.2d at 86–87, 89. We therefore overrule 

Munoz‘s sole point. 

IV. CONCLUSION

Having overruled Munoz‘s sole point, we affirm the trial court‘s judgment.

SUE WALKER

JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 19, 2010

 

2Because we affirm the trial court‘s denial of the motion to suppress on the 

ground that the community caretaking exception applies, we do not reach the 

State‘s argument that this was a voluntary encounter and not subject to Fourth 

Amendment protection. See Tex. R. App. P. 47.1.