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Court of Appeals of Texas, Dallas.


No. 05–11–00475–CR

Decided: June 15, 2012

Before Justices Bridges, FitzGerald, and Lang


Opinion By Justice Lang

Appellant Julie Woods Clancy was charged by information with the offense of driving while intoxicated.   After her pretrial motion to suppress evidence was heard and overruled by the trial court, appellant waived her right to a jury trial and pleaded “guilty/nolo contendere.”   The trial court adjudged appellant guilty and, in accordance with a negotiated plea agreement, assessed punishment at 180 days' confinement, community supervision for a period of eighteen months, and a fine of $600.   In three issues on appeal, appellant asserts the trial court erred by denying her motion to suppress.   We affirm the trial court's judgment.


At the hearing on appellant's motion to suppress, Officer Wayne Kilmer was the sole witness.   Employed by the Highland Park Department of Public Safety, Officer Kilmer testified that just before midnight on the date of the alleged offense, he responded to a 911 call “of a witness who had stated that somebody was driving erratically, described the vehicle and actually gave the license plate.”   He proceeded to the location given, the Armstrong/Preston area in Highland Park. He immediately found the vehicle and followed it.   Officer Kilmer described appellant's driving as extremely slow, estimating her speed at two to three miles per hour in a neighborhood where the speed limit was thirty miles per hour.   He observed the vehicle continue down the road approximately half a block and come to a stop on the right side of the road, where it “nudged the curb a little bit.”   The officer stopped his patrol car about fifty yards behind appellant's vehicle and observed the vehicle for approximately three minutes.   He did not “have a visual” on appellant and “couldn't tell one way or the other whether or not she was behind the wheel at that moment until I got a little bit closer.”   The officer moved closer and “flicked on the lights.”

The police video showed appellant's vehicle traveling at a very slow rate of speed until it came to a stop at the curb.   The video showed the patrol car's headlights illuminating the trunk area of appellant's vehicle while the officer waited.   When the officer moved the patrol car up immediately behind appellant's vehicle, the video showed the officer turned on his spotlight and moved its beam in order to illuminate the inside of the vehicle.   No one is visible inside the vehicle at this point.

The officer further testified he decided to initiate contact with the driver to see if there was an emergency or if she was intoxicated.   The officer based his actions on the content of the 911 call concerning erratic driving and what he had observed.   The vehicle had been traveling “extremely slow” and after the vehicle came to a stop at the curb, no one emerged from the vehicle and he could not see any activity in the vehicle for the next few minutes.   During the entire time, the officer had “no visual” on the driver or any idea what was going on in the car.

The video next showed the officer activated his overhead emergency lights, approached the vehicle's driver's side, and repeatedly rapped on the window.   Appellant is seen raising her head up from the console area.   The parties agreed that the video would be considered by the trial court only up to the time the overhead lights were turned on, and, therefore, we will limit our analysis to the same period of time.


A. Standard of Review

We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion,

using a bifurcated standard.   See Martinez v. State, 348 S.W.3d 919, 922–23 (Tex.Crim.App.2011);

Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App.2010).   The trial court is the sole trier of fact and the judge of witness credibility and weight to be given to witness testimony.  Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010).   We give almost total deference to the trial court's findings of historical fact that are supported by the record and to mixed questions of law and fact that turn on an evaluation of credibility and demeanor.  Martinez, 348 S.W.3d at 923;  Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000).   If the trial judge makes express findings of fact, we view the evidence in the light most favorable to his ruling and determine whether the evidence supports those factual findings.  Valtierra, 310 S.W.3d at 447.   We review de novo the trial court's determination of the law and its application of law to facts that do not turn upon an evaluation of credibility and demeanor.   Martinez, 348 S.W.3d at 923;  Carmouche, 10 S.W.3d at 327.   We will uphold the trial court's ruling on the motion if that ruling was supported by the record and was correct under any theory of law applicable to the case.   See Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App.2003 ).

B. Applicable Law

Under the Fourth Amendment to the United States Constitution, a seizure of a person must be objectively reasonable in light of the particular circumstances of the case.   See, e.g., Corbin v. State, 85 S.W.3d 272, 276 (Tex.Crim.App.2002) (citing Maryland v. Wilson, 519 U.S. 408, 411 (1997);  Terry v. Ohio, 392 U.S. 1, 21–22 (1968)).   Whether a seizure is reasonable depends on “a balance between the public interest and the individual's right to personal security free from arbitrary interference by law enforcement.”  Id.

A police officer may stop and briefly detain a person for investigative purposes if the officer, in light of his experience, has a reasonable suspicion supported by articulable facts that criminal activity may be afoot.   See, e.g., Dowler v. State, 44 S.W.3d 666, 669 (Tex.App.—Austin 2001, pet. ref'd) (citing Terry, 392 U.S. at 30).   The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances.   Id. (citing Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.19997)).   The detaining officer must be able to articulate something more than an “inchoate and unparticularized suspicion or ‘hunch.’ ”   Foster v. State, 326 S.W.3d 609, 613 (Tex.Crim.App.2010) (citing Terry, 392 U.S. at 21).  “Specifically, the police officer must have some minimal level of objective justification for making the stop, i.e., when the officer can ‘point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’ ”   Id. (quoting Terry, 392 U.S. at 21).

A stop may be justified based upon reasonable suspicion of driving while intoxicated even where no traffic regulation has been or is about to be violated.   See, e.g., id. at 611 n.2, 614;  State v. Alderete, 314 S.W.3d 469, 473 (Tex.App.—El Paso 2010, pet. ref'd);  James v. State, 102 S.W.3d 162, 172 (Tex.App.—Fort Worth 2003, pet. ref'd);  Cook v. State, 63 S.W.3d 924, 929 (Tex.App.—Houston [14th Dist.] 2002, pet. ref'd).   Further, time of day is a relevant factor in determining reasonable suspicion.  Foster, 326 S.W.3d at 613.  “[T]here may be instances when a person's conduct viewed in a vacuum, appears purely innocent, yet when viewed in light of the totality of the circumstances, those actions give rise to reasonable suspicion.”  Woods, 956 S.W.2d at 38.

Even without reasonable suspicion or probable cause that an offense has been committed, a police officer may reasonably seize an individual through the exercise of the community caretaking function.  Corbin, 85 S.W.3d at 276 (citing Wright v. State, 7 S.W.3d 148, 151–52 (Tex.Crim.App.1999)).   Pursuant to the community caretaking function, an officer may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help.  Id.

Where, as here, the parties stipulate that the underlying case involved a warrantless search or seizure, the State has the burden to establish such search or seizure was reasonable.   See Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005).

C. Application of the Law to the Facts

1. Reasonable Suspicion

In her first issue on appeal, appellant asserts that Kilmer lacked reasonable suspicion to detain her because there was no testimony supporting a traffic violation.   In her third issue on appeal, she contends that the trial court erred by finding or concluding there was reasonable suspicion for her detention.   We note that appellant's first issue is framed too narrowly, because the question is not whether Kilmer witnessed a traffic violation.   Rather, the question is whether he had reasonable suspicion, based on specific articulable facts, that appellant was, had been, or soon would be engaged in criminal activity.   See State v. Woodard, 341 S.W.3d 404, 411 (Tex.Crim.App.2011).   In denying appellant's motion to suppress, the trial court found, in part, that there was reasonable suspicion that appellant was intoxicated.   Although the State does not attempt to defend this finding on appeal, we will uphold the trial court's ruling if it was supported by the record and was correct on any theory of law applicable to the case.   We conclude that the trial court's finding of reasonable suspicion is supported by the record.

Kilmer testified that at approximately 11:45 p.m., he responded to a 911 call from a witness who “stated that somebody was driving erratically” and provided a vehicle description and license plate number.   Further, Kilmer testified he observed appellant's vehicle traveling at a speed of “maybe two, three miles an hour” in an area in which the speed limit was thirty miles per hour and, based on his training and experience, “oftentimes somebody who's going significantly lower than the speed limit, it could be intoxicated.”   Finally, he testified that after about half a block, appellant “pulled over to the side and just nudged the curb a little bit,” then “sat there in park” for approximately three minutes.   Even when Kilmer pulled his patrol car immediately behind appellant's vehicle and shone his spotlight into appellant's vehicle, no one was visible inside the car.   Only then did Kilmer activate his overhead emergency lights.

Because the State did not present any evidence as to the reliability of the witness who made the 911 call, we will treat that information as coming from an “anonymous source.”   See Dowler, 44 S.W.3d at 669.  “While an anonymous tip or telephone call may justify the initiation of an investigation, it alone will rarely establish the level of suspicion required to justify a detention.”  Id. Additionally, in Richardson v. State, 39 S.W.3d 634, 640 (Tex.App.—Amarillo 2000, no pet.), the Seventh Court of Appeals concluded that driving twenty miles per hour under the speed limit late at night, in and of itself, does not justify an investigatory stop for driving while intoxicated.   However, the reasonableness of a temporary detention must be examined in terms of the totality of the circumstances.   See Woods, 956 S.W.2d at 38;  Dowler, 44 S.W.3d at 669.   On this record, in light of the totality of the circumstances, including the lateness of the hour, the 911 call, appellant's conduct as observed by Kilmer, and Kilmer's training and experience, we conclude it was rational for Kilmer to have “inferred” that appellant may have been intoxicated, thus justifying a temporary detention for further investigation.   See Foster, 326 S.W.3d at 614 (totality of circumstances, including time of night, location, officer's training and experience, and defendant's aggressive driving, satisfied “minimal level of justification” required for stop based on suspected intoxicated);  Dowler, 44 S.W.3d at 670–71 (anonymous report of possibly intoxicated driver and officer's observation of defendant driving twenty miles per hour below speed limit, drifting within lane, and entering on-ramp for no apparent purpose gave rise to reasonable suspicion);  see also Terry, 392 U.S. at 21.   We decide against appellant on her first and third issues.

2. Community Caretaking Function

In her second issue, appellant contends her detention was not a lawful exercise of the community caretaking function.   In addition to the findings and conclusions challenged above, the trial court also concluded there was “a reasonable suspicion that the Defendant was in need of assistance, that under those—under that scenario of what I just saw, it would be irresponsible for the police officer to leave that individual sitting in that car not knowing what was wrong with the driver.”   In the alternative to our conclusions above, we conclude that the denial of appellant's motion to suppress should be affirmed based on the community caretaking function.

The first requirement of a proper exercise of the community caretaking function is that the officer was motivated primarily by a community caretaking purpose.  Corbin, 85 S.W.3d at 277.   If this requirement is met, we must inquire whether the officer's belief that the appellate needed help was reasonable.  Id. We consider four non-exclusive factors in making this determination:  (1) the nature and level of distress exhibited by the individual, (2) the individual's location, (3) whether the individual was alone and/or had access to assistance other than that offered by the officer, and (4) the extent to which the individual, if not assisted, presented a danger to himself or others.  Id.

We conclude that the evidence supports the conclusion that Kilmer was motivated primarily by a community caretaking purpose.   Kilmer testified that he turned on his lights and “ma[d]e contact” with appellant “to see if there was an emergency that was happening or if, in fact, she was intoxicated.”   This evidence is similar to the evidence that was presented in Corbin.   In that case, the evidence indicated that the officer “was concerned [both that] the appellant was tired and that the appellant may be drunk.”  Id. The court of criminal appeals held that the trial court could have concluded from this evidence that the officer was motivated primarily by community caretaking concerns.  Id. The trial court in the instant case could have reached the same conclusion about Kilmer's motivation.

As to the Corbin reasonableness factors, we conclude that the trial judge correctly concluded that they were satisfied.   As to the first factor, the facts known to Kilmer indicated that the driver of appellant's vehicle could be in distress of uncertain severity.   Kilmer observed the vehicle travel some distance at an unusually low speed before coming to a stop, and he was unable to see anyone inside even after pulling his patrol car immediately behind the vehicle and shining a spotlight into it.   These facts were consistent with driver incapacity, whether caused by sleepiness, seizure, or any other incapacitating medical condition.   As to the second factor, the location of the individual, we note that the circumstances show at least one person, the driver, was in the car, and while the car was stopped in a residential area, the incident occurred in the darkness of the night and no one was visible even to a police officer who trained a spotlight through the rear window of appellant's vehicle.   As to the third factor, the record does not indicate that there was anyone else in the vicinity who might have rendered aid to appellant, and the late hour weighs against anyone coming upon her by chance and stopping to aid her.   Finally, the degree of danger that appellant posed to herself or others was significant.   Although the car was stopped, the record does not suggest that its engine had been turned off, and if appellant had been incapacitated and accidentally set the car in motion again, either she or others could have been injured.   And, of course, if she were suffering from a physiological attack of some sort, appellant could have been facing an extreme degree of danger.

Accordingly, we conclude that the trial judge correctly denied appellant's motion to suppress based on the community caretaking function, and we reject appellant's second issue on appeal.


We decide against appellant as to all three of her issues.   The trial court's judgment is affirmed.


Court of AppealsFifth District of Texas at DallasJUDGMENT


No. 05–11–00475–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the County Criminal Court No. 3 of Dallas County, Texas.  (Tr.Ct.No.MB0932271C).

Opinion delivered by Justice Lang, Justices Bridges and Fitzgerald participating.

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

Judgment entered June 15, 2012.

/Douglas S. Lang/




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