TIMOTHY HAROLD BENDER v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice Morris

After the trial court denied his motion to suppress, Timothy Harold Bender pleaded guilty to misdemeanor driving while intoxicated.   He now appeals the trial court's denial of his suppression motion, complaining the evidence did not support applying the community caretaking exception to the officer's initial warrantless stop.   Because we conclude the trial court did not abuse its discretion in denying the motion to suppress, we affirm the trial court's judgment.

Factual Background

At around 10:30 p.m., Frisco police officer Justin Lee Hawthorn was patrolling Coit Road when he observed a red sports utility vehicle with its emergency flashers activated and stopped in the right northbound lane blocking traffic.¹  The officer activated his emergency lights and parked his police car behind the vehicle.   He observed a flat tire on the rear passenger side of the vehicle.   There was a moderate amount of traffic on the road and it was raining slightly.   Two men were standing outside the vehicle.   The officer learned that appellant was talking on the cell phone he borrowed from the other man, who had stopped to help him.   Appellant was trying to get a ride and a wrecker, but did not know his location.   While speaking with appellant, the officer noticed both passenger tires were flat and their rims were damaged.   Appellant admitted he hit something, but did not know what he had hit.   The officer noted appellant smelled of alcohol, was unsteady on his feet, slurred his speech, and had red watery eyes.   Appellant had trouble focusing on the officer's questions.   The officer then began an investigation and ultimately arrested appellant for DWI.

Appellant moved to suppress the arrest based on the assertion that the officer's initial stop was illegal.   The trial court ordered the matter to be heard by affidavits.   After the trial court denied his motion, the appellant filed this appeal.

Discussion

In his sole issue, appellant contends the trial court erred in denying his motion to suppress because the community caretaking exception did not justify the officer's initial warrantless stop.   We review a ruling on a motion to suppress evidence under a bifurcated standard of review.   See St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App.2007).   We give almost complete deference to the trial court's determination of historical facts and review de novo the trial court's application of the law to those facts.  Id. at 725.

In addition to gathering evidence, enforcing the law, and investigating crime, a police officer's duties also encompass a community caretaking function.   See Corbin v. State, 85 S.W.3d 272, 276 (Tex.Crim.App.2002).   The community caretaking function is separate from those duties relating to crimes and allows an officer to stop and assist someone whom a reasonable person, given the totality of the circumstances, would believe is in need of help.  Id. at 276–77.   In evaluating whether the officer's belief that a person needs help is reasonable, we may look to four non-exclusive factors:  (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 had access 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. The first factor is entitled to the greatest weight, but its weight alone is not always dispositive.  Id.

Here, the record reflects the primary motivation for the stop was to assist a stranded motorist.   Appellant was standing outside his vehicle, which was stopped in the road with its hazard lights flashing.   It was night, raining lightly, and the road on which the vehicle was stopped had moderate traffic.   Upon parking his patrol car behind appellant's vehicle, the officer noticed that the vehicle had a flat tire.   Appellant argues he had ample assistance available because another motorist had stopped to assist him and appellant was on a phone when the officer pulled behind his vehicle.   These facts, however, do not greatly diminish the nature and level of distress exhibited by a person standing outside a disabled vehicle stopped in a lane of traffic with its hazard lights activated.   Moreover, the officer could not know that the person standing with appellant was a motorist who had stopped to help him until the officer stopped to offer appellant assistance.   Appellant, his vehicle, or the assisting motorist could have been struck by another vehicle traveling in the lane blocked by appellant's vehicle.   There was no tow truck present to remove the damaged vehicle.   Under these circumstances, a reasonable person would have believed that appellant needed help and that the location of his vehicle presented a danger to him and other motorists.   We resolve appellant's sole issue against him.

In the argument portion of his brief, appellant also alludes to “deficiencies” caused by the trial court's hearing of the suppression motion by affidavits.   Because appellant did not raise an objection to this procedure in the trial court, he has failed to preserve these complaints for appellate review.   See Tex.R.App. P. 33.1.

We affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

TIMOTHY HAROLD BENDER, Appellant

No. 05–10–01501–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the County Court At Law No. 2 of Collin County, Texas.  (Tr.Ct.No.002–90001–09).

Opinion delivered by Justice Morris, Justices Fillmore and Myers participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 4, 2012.

/Joseph B. Morris/

JOSEPH B. MORRIS

JUSTICE

FOOTNOTES

FN1. The officer stated he had passed the spot where appellant and his vehicle were located about ten to fifteen minutes earlier and they were not there.   Appellant claimed he had been at the location at least fifteen minutes earlier as evidenced by his cell phone invoice showing he first called for emergency roadside assistance at 9:59 pm..  FN1. The officer stated he had passed the spot where appellant and his vehicle were located about ten to fifteen minutes earlier and they were not there.   Appellant claimed he had been at the location at least fifteen minutes earlier as evidenced by his cell phone invoice showing he first called for emergency roadside assistance at 9:59 pm.

JOSEPH B. MORRIS JUSTICE