Wright v. State

the United States and scheme violates testified defense Lavergne a witness. by failing require appellant was not Texas constitutions to told him that counsel person incident. informed that a kidnapping jury actor in the that a be primary that he was testified not Lavergne capital also to life case would sentenced meeting with into a face-to-face brought parole thirty-five years. for for eligible be During attorneys. three, and his the defendant appellant In of error contends point whether Lavergne was asked meeting, in denying appel trial court erred that the curl gerry man with the appellant was the jury that the be request instructed lant’s man was the one or whether that in capital to life person that a sentenced (Andrew Lewis). The evi- photograph eligible parole case would not be in- attorneys’ and his appellant dence of have held We consis thirty-five years. why Lav- relevant to show volvement was and Texas tently that the United States the man in the initially testified that ergne jury require constitutions do actor and photograph primary was the such information. given capital case testimony changed his why Lavergne later State, Jones v. primary ac- say appellant to Smith v. (Tex.Crim.App.l998)(citing arguments were complained-of tor. The (Tex.Crim.App.)(plurality 898 S.W.2d 838 and reason- of the evidence summations denied, 843, 116 S.Ct. cert. op.), the evidence. Con- able deductions from progeny). point appellant’s contention trary over through three are of error one Points fourteen, were not arguments error ruled. id. at 60 the record. Contrast outside court is af- of the trial (attacks were based upon defense counsel firmed. record). matters outside the upon changed In the the witness present had that he testimony and indicated

his con- by defense counsels’

been influenced to discuss was entitled

duct. The State Lavergne explain why events to

those Moreover, the tes- testimony.

changed his participated

timony appellant showed that To the of the conduct involved. some WRIGHT, Appellant, Kyle Walker in the participated extent conduct, to defense counsels’ references Texas. an unfair did not constitute STATE participation the defendant. strike at No. 297-98. Further, prosecu even if the of Criminal trial improper,

tor’s comments were En Banc. cured disregard court’s instructions strike over arguments that error. Where 15, 1999. Dec. are not of defense counsel the shoulders an instruction egregious, particularly cure the error. generally will

disregard

Dinkins denied, 516

357(Tex.Crim.App.1995), cert. 133 L.Ed.2d

III. PUNISHMENT two, of error one points penalty death that the

appellant contends Austin, Reynolds, appellant.

David Glickler, David Atty., George- Asst. Dist. town, Paul, Austin, Atty., Matthew State’s for State.

OPINION MANSFIELD, J., delivered opinion joined of the Court which was McCORMICK, P.J., KELLER, HOLLAND, KEASLER, WOMACK and JJ.

Kyle Wright, appellant, Walker was a passenger the rear seat of a car travel- Highway east on 620 in Williamson County at April about 4:00 AM on Appellant was observed William- harmed, Deputy being Tomlinson or is County son Sheriff Jack does open of an window and Amendment leaning out rear Fourth the offi- prohibit testified at vomiting.1 Deputy Tomlinson conducting investigatory cer from thought it was suppression hearing stop pursuant the officer’s “communi- hanging unusual for a to be out ty caretaking” function? a while vomit- moving of the window of car The United States Constitution

ing; he therefore the car “basical- stopped protects persons against “unreasonable make he assaulted ly being sure was not and searches seizures.” U.S. Constitution if he attention.” and to see needed medical general, amend. IV. In law enforcement he was Deputy Tomlinson also testified may not or seize an personnel search indi if car appellant concerned was at risk probable a on vidual absent warrant based or of had a blow-out somehow went out However, temporary investiga cause. a undisputed It is criminal activ- control. no down search pat tive detention and ity or traffic law violation was observed weapons possible the car. or contraband without a deputy prior stopping his permissible is provided warrant car, Deputy Tom- approached As he a reasonable the individual has belief has testified, sugges- linson odors smelled engaged activity or been of alcoholic marihuana. beverages tive Ohio, 1, Terry armed. v. 392 U.S. 88 S.Ct. partially He then a smoked mari- observed (1968); 20 L.Ed.2d 889 Ybarra v. cigarette plain huana on the con- view Illinois, 444 100 U.S. S.Ct. 62 the two No oth- sole between front seats. (1979); 238 v. L.Ed.2d United States Cor in the er controlled substances were found tez, 411,101 690, 66 449 U.S. S.Ct. L.Ed.2d Appellant subsequently vehicle. was (1981). Bostick, Florida v. 621 See also charged with the of of possession offense 115 501 U.S. L.Ed.2d S.Ct. than two ounces marihuana. Tex. less of Dickerson, (1991); v. Minnesota 431.121(b)(1). Safety § Health and Code 366, 113 S.Ct. motion plea bargain Pursuant to a after his (1993). denied, suppress was entered appellant a of no contest. The trial court de- plea furthermore, has, adjudication of a fine guilt, ferred assessed decades, recognized that auto for several $250, community placed appellant on mobiles, mobility, present due to a their months, for nine and ordered supervision prop different that of fixed situation than fifty perform him to hours Accordingly, as a erty, such residence. service. has an automobile the Court The Third Court of sustained un exception general requirement to the point and re- appellant’s sole of error that a warrant the Fourth Amendment der versed, ob- holding marihuana or first be obtained before a search seizure illegal stop the fruit of an served as certain may recog be conducted. Under v. suppressed Wright must be as such. circumstances, searches nized warrantless (Tex.App.-Austin 959 S.W.2d 355 per seizures automobiles and/or 1998). reasonable, found therein be sons for Dis- granted might required the State’s Petition a though

We warrant even cretionary Review to consider the follow- property piece for a search of fixed review: ing ground California, v. Cooper such as residence. 58, 59, 788, 790, 17 386 U.S. 87 S.Ct. officer has Where (1967); Pennsylvania L.Ed.2d grounds to believe that a assistance, Mimms, 106, 98 434 U.S. S.Ct. vehicle is in need of moving per- passenger. appellant, were two other 1. Besides there vehicle, and a second sons in the the driver (1977); Wilson,

L.Ed.2d Maryland fact that the time the search was 408, 117 882, 137 L.Ed.2d 41 ignorant conducted Officer Weiss (1997). murder, any the fact that crime, ... had been committed the fact In the present the vehicle in that the protection might, a passenger was not abstract, accomplished in the have been stopped due to violation of traffic laws not, “less intrusive” means does it suspected or because was having itself, render the search unreasonable. in any involved criminal activity. There fore, the automobile exception to the war Dombrowski, Cady v. requirement rant set forth the above cases The search at applicable here. issue Dombrowski was not conducted to uncover However, Supreme the Court has also activity; evidence of criminal it was con recognized community func caretaking ducted solely to locate and secure Dombro- tion of law enforcement as a reasonable ski’s service revolver out of that it concern exception to the Fourth Amendment’s war might fall into the hands of the wrong rant requirement. In Cady v. Dombrow people. Similarly, in the present the 37 L.Ed.2d ski car in appellant was a passenger (1973), the accused was involved as the stopped, because of evidence driver in an accident.2 His disabled vehi activity, of criminal cle but out of concern for was towed to a private lot. Because Thus, the appellant’s accused was a health. officer in we must deter another city (Chicago), the mine if arresting Deputy officer Tomlinson acted reason searched the vehicle after it ably was towed for when he stopped the vehicle out of the accused’s service revolver. Evidence concern for the appellant welfare of when tying the accused to a murder committed leaning he observed him out the open rear shortly before his accident was found in window vomiting and at 4:00 AM.

the trunk of the accused’s car. No service

revolver was found. The accused was sub expressly sequently convicted of the murder. officers do much law, more than enforce the conduct investi

In upholding the warrantless search of gations, gather and evidence to be used in vehicle, Dombrowski’s the Court held: job criminal proceedings. Part of their Harris,3 In justification ini- for the to investigate accidents—where there is tial intrusion into the vehicle was to often no claim of liability di safeguard the property, owner’s and —to perform rect traffic and to other duties Cooper,4 it to guarantee the safety “community that can be best described as Here, of the justifica- custodians. caretaking functions.” v. Dombrow- tion, different, while was as immediate ski, S.Ct., part duty at 2528. As of his and as constitutionally reasonable as protect,” to “serve and a police those Harris Cooper: concern for stop and assist individual whom a rea safety general public who person given sonable totality of the might endangered if an intruder re- — moved a circumstances —would believe is in need revolver from the trunk help. determining vehicle ... although there is no record whether a basis for discrediting testimony, reasonably stopping such it officer acted an in was corroborated the circumstantial dividual to if determine he needs assis- States, 2.The accused was intoxicated and was subse- 3. Harris v. United 390 U.S. (1968). quently driving arrested for while intoxicated brought hospital to a for treatment of his injuries. California, Cooper supra. tance, court of for further following proceedings factors5 relevant opinion. consistent with this to said determination: (1) of the the nature and level distress MEYERS, individual; dissenting J. delivered a

exhibited opinion. individual; the location of the (3) whether or not the individual was JOHNSON, J., dissenting delivered a alone had access to assistance and/or PRICE, joined by J. opinion which independent that offered MEYERS,

officer; dissenting delivered a J. opinion. (4) to what the individual—if not extent presented assisted — Court vacates

himself or others. appellate court and remands this case additional consistent with its proceedings Appellant avers that different standards Ante, the ma opinion. Specifically, i.e., standards, apply, should stricter to de jority directs the Court of under Tom- Deputy whether termine on remand of a to check on the wel- doctrine vehicle reasonably stopped linson acted when opposed that of passenger fare of the car in which was a It that a in the driver. is true driver on appellant’s in order to check welfare. potentially greater threat distress Depu But the issue of whether 151. well-being public than general of the reasonably already acted has ty Tomlinson passenger. presented by a distressed The the lower court.1 decided however, in Supreme Cady, The that, appellate expressly court concluded in applicability drew no distinction of “community caretaking”-type even under a community caretaking function to in these cir analysis, the officer’s actions stops passen- to determine the welfare of were treasonable. See cumstances opposed drivers and we refuse gers (Tex. 355, State, Wright S.W.2d 358 959 here.6 to do so 1998) (“We note ... App.—Austin recognize today While we the exis appellant’s not have been detention would community func caretaking tence of the ‘community lawful under the even in its emphasize tion we narrow stopping The caretaking’ doctrine.... most applicability. Only in the unusual simply an and detention of of circumstances will warrantless searches authority by unreasonable exercise of stops persons fixed of private, property, appel Tomlinson] violation of [Deputy thereon, justified under located rights”). lant’s That issue constitutional function, community given the caretaking squarely therefore before this Court expectation privacy greater inherent See, Lee v. e.g., addressed. deserves to be respect pri with to residences other State, (Tex.Crim.App. 142 property.7 vate real 1990) curiam) that, court as a (noting (per review, authorized discretionary the court of is of we ap courts of to review “decisions” vacated and cause is remanded to this instances, emergency Bri See may factors doctrine. 5. In certain other also residences: mage (Tex. State, determining whether be relevant S.W.2d 500-502 reasonably. acted (plurality op.). Crim.App.1996) passengers were no 6. We note there its acknowledges point in this State stopped by the Dombrowski’s vehicle when to review properly asks this Court brief and police. See the merits. issue on reasonableness already a doctrine simi 7. We have Support for Discre- of Petition State’s Brief in ap lar to the function tionary at 8. Review private plicable to warrantless searches also, Guzman, see peals); Court de novo. Tex.Crim. Ann. S.W.2d PROc.Code 44.45(b) (Vernon art. Supp.1999); 1979 &

Tex.R.App. Furthermore, P. 66.1. I while Neither this Court nor the United agree that there are circumstances where had States Court has occasion to law enforcement constitutionally stop whether decide Fourth Amendment any a vehicle absent suspicion of criminal authorizes officers to make “welfare” However, law-abiding many citizens.2 I wrongdoing, disagree with the manner in jurisdictions courts other have ad which the “totality formulates its issue, and, my dressed the as far as re circumstances” test without ref revealed, search has all of those have at erence to established Fourth Amendment suggested least that a stop may be autho case law. dissent. rized in the suspi absence of reasonable Proper appellate probable cion or analysis begins cause circumstances with reasonably where an officer is carrying out the standard of review. In Guzman v. See “community his role as caretaker.” (Tex.Crim. 88-89 Rideau, generally United States v. App.1997), this Court indicated that it th (5 Cir.1992), vacated on F.2d would give “almost total deference to the (5th grounds, 969 F.2d 1572 Cir. trial court’s determination of historical 1992) (en banc) (agreeing with panel on it would review de novo facts” and that King, United States v. point); questions “mixed of law and fact” that did (10th Cir.1993); United F.2d 1559-60 not turn on an evaluation credibility Dunbar, States v. 470 F.Supp. 706-07 demeanor. In the instant the “his (D.Conn.1979), (2d aff'd, 610 F.2d 807 Cir. torical facts” are uncontroverted. 1979); Crauthers 727 P.2d 10- ante, at 149-150. Under the pre rubric (Alaska Ct.App.1986); State v. Harri Guzman, sented in question” the “mixed son, 508, 1143, 111 Ariz. 533 P.2d 1144 involving whether Deputy Tomlinson’s ac In re Clayton, 113 Idaho (1975); 817, 748 tions were reasonable under the Fourth Mitchell, 401, (1988); State v. P.2d 402-03 Amendment (Iowa must be by 691, reviewed 1993); this 498 N.W.2d State 693-94 majority (1994) (Elder, J., The Cady seems to conclude that v. dissenting) (noting 247 dis- Dombrowski, 433, 2523, 413 U.S. 93 S.Ct. Cady 37 tinction between facts of and those of an is, (1973), itself, L.Ed.2d 706 dispositive stop). of assistance The instant on hand, Specifically, issue. majority presents makes stop other us with a aof Cady, broad assertion that in "the moving Su- purpose ensuring vehicle for the of preme Court ... passengers. the welfare of one of the vehicle’s caretaking function of law validly impounded enforcement as a A "search” of vehicle exception to the Fourth Amend- moving and “seizure” of a vehicle which is Ante, requirement.” ment’s warrant activity not associated with are however, Cady, only dealt with clearly the search of things. two different The- Court of impounded weapon an vehicle po- Appeals for a after appeared recognize this distinction lice validly had otherwise seized the vehicle holding Cady and declined to extend the Bertine, 367, itself. See Colorado v. guidance 479 U.S. without from this Court. 738, (1987) (citing Wright, (citing 959 S.W.2d at 358 Rheinlander Cady community 917, caretaking doctrine as refer- v. (Tex.App.— 918-19 ring 1994), dism’d, abated, caretaking procedures "to pet. de- permanently Austin 527, signed protect to secure and vehicles and (Tex.Crim.App.1996)). 528 police custody”); their contents majority, within South Like ultimately conclude that 364, Opperman, Dakota v. 428 U.S. 96 may lawfully stop S.Ct. an officer a vehicle in her 3092, L.Ed.2d (describing capacity 49 1000 "community as a caretaker” under Cady community caretaking proper infra, function as tak- set of circumstances. See however, custody might "jeopard- vehicles majority, into 152. Unlike the I conclude public safety ize Cady only part and the efficient complete legal movement aof traffic”); of vehicular monwealth, analysis, see also Barrett v. Com- and is not itself the answer to 773, 243, Va.App. question presented. 18 447 S.E.2d

154 Vistuba, 821, 511, a jack-of-all-emergen- 251 P.2d policeman, v. Kan. 840 514 cies, (1992), grounds, “complex multiple overmlled on other State and tasks to has Field, 657, 1280, v. 252 Kan. 847 P.2d 1286 in addition and perform identifying (1993); Smigliano, 427 Commonwealth apprehending persons committing seri- 490, 341, (1998); 694 348 Mass. N.E.2d offenses”; or ous criminal default 318, Pinkham, State v. 565 A.2d 319-20 design expected he is also to “aid indi- Parker, (Me.1989); 525, 127 State v. N.H. physical viduals who 809, (1985); 503 A.2d 811-13 State v. harm,” “assist those cannot care who 325, 93, 727 Organ, NJ.Super. 320 A.2d themselves,” services “provide Martinez, (App.Div.1999); 95-7 State on an emergency basis.” 279, 75, N.J.Super. (App. 260 615 A.2d 281 Wayne A LaFave, R. 3 Seabch Seizure: Div.1992); Apodaca v. & State Taxation AMENDMENT THE ON FOURTH TREATISE 624, Dept., Revenue 118 N.M. 884 P.2d 5.4(c) (3d ed.1996) § ABA (quoting Stan- 515, (App.1994); Reynolds, 516-17 State v. 1-1.1(b), 1- §§ dards for Criminal Justice 23, 668, (App. 117 N.M. 868 P.2d 670-71 (2d ed.1980)). 2.2 Warden, 1993); Provo 844 City v. P.2d (Utah 360, Ct.App.1992), aff'd, 362-65 875 out that point is correct to (Utah 1994); Marcello, P.2d 557 State v. Dombrow Court 657, (1991); 358 157 Vt. 599 A.2d ski, 37 L.Ed.2d Commonwealth, Barrett v. 18 Va.App. (1973), acknowledged and welcomed (1994) (upon reh’g, S.E.2d 245-46 officers. this additional role local banc); Chisholm, Wash.App. en State v. There, the wrote: (1985). P.2d deci 42-3 These regulation Because of the extensive are based the idea that sions on traffic, and also be- motor vehicles that are many officers serve roles not di frequency with which a cause of rectly related to criminal law enforcement. or involved vehicle can become disabled (“It See, Dunbar, e.g., F.Supp. at public highways, on an accident extravagant would be too to contend that a involving police-citizen extent of contact benign purpose rendering assistance greater substantially will be automobiles motorist”). justify could never than in a home police-citizen contact suggested The Court will occur such contacts office. Some legal authority under from this op- the officer believe because officer cannot an individual unless detain statute, has violated criminal erator type him of criminal suspects of some na- will of that many but more not be activity. agree that we with officers, feder- ture. Local unlike narrowly. read so precedent should not our officers, frequently investigate al vehicle responsibilities in his An officer’s role as claim of is no accidents which there community caretaker are not limited to what, for liability engage investigation involving duties those term, described want a better vein, Legislature In this has crimes. functions, to- community caretaking as language used broad to define “duties” detection, inves- tally from the divorced peace of Texas officers. Tex.Crim. relat- tigation, acquisition of evidence or (Vernon 1977) (“It art. 2.13 Ann. PROc.Code statute. a criminal to the violation duty every pre- officer to peace is the 2528; Terry also Id. at see 93 S.Ct. jurisdiction. To peace serve the within his 1868, 1875, Ohio, 88 S.Ct. 392 U.S. use all purpose, he shall lawful effect (1968) (“Encounters are means”). L.Ed.2d language, Based it seems on this variety of for a wide initiated peace conclude Texas unre wholly purposes, some of which are charged public safety with officers prosecute lated the desire to crime beyond duties that extend detection crime”). rationale, supported This investigation: the search of an impounded vehicle in terference law officers.” United States Cady for a missing pistol, supports also Brignoni-Ponce, 873, 878, 422 U.S. legitimate officer’s role a public servant 2574, 2578-79, (1975) 45 L.Ed.2d 607 duty with a to assist those in (citations distress and omitted); Prouse, see also maintain and foster public safety on Texas’ (“[T]he U.S. at per- S.Ct. at 1396 highways. roads and Neither Terry nor missibility particular of a law enforcement any of this Court’s opinions interpreting practice judged by is balancing its intru- the Fourth Amendment possi exclude the sion on the individual’s Fourth Amend- bility that an may stop an individual against ment interests promotion its traveling public on a highway for reasons interests”) (foot- legitimate governmental which do not suspicion involve of criminal omitted).4 note In measuring the weight activity.3 interest, of the step the first in- volves an inquiry into whether the officer Nevertheless, just because an officer has performing bona fide community no suspicion of criminal activity when he public safety or function. See stop effectuates such a does not mean that Warden, words, 844 P.2d at the Fourth Amendment is not implicated. a court should examine whether the pur- surely “It is anomalous say pose expressed by the stop officer for the individual ... fully is protected by the is consistent with his legitimate role as Fourth Amendment only when the individ Furthermore, community caretaker. ual suspected of criminal behavior.” Ca proffered justification officer’s must be mara v. Municipal 387 U.S. supported by “specific and articulable 1727, 1731, 87 S.Ct. 18 L.Ed.2d 930 facts.” Terry, 392 U.S. at 88 S.Ct. at (1967) (footnote omitted); see also Dela Prouse, ware 648, 653, 1391, 1396, (“[Shop Once a legitimate public interest has ping an automobile and detaining its occu justify identified to the stop, and that pants constitute a ‘seizure’ within the supported interest is by objective facts and meaning of the Fourth and Fourteenth circumstances, it must against be balanced Amendments, even though purpose resulting interference with an individu- the stop is limited and the resulting deten liberty. al’s liberty implicat- interest brief’) (citations omitted). tion quite ed in a so-called “welfare stop” is similar Thus, a “welfare” “safety” stop, which to that implicated by the random stops qualifies aas “seizure” within the meaning condemned the Supreme Court of the Amendment, Fourth must not of Prouse. “Both of these generally fend the constitutional proscription against entail law enforcement signaling officers

unreasonable searches and seizures. moving pull automobile to over to the side given roadway, by

Whether or not a of a possibly is reason- means able “depends unsettling on a authority. balance between show of Both inter- public interest and the right movement, individual’s to fere with freedom of are incon- personal security arbitrary venient, free from in- and consume time. Both may cre- by I am troubled the majority’s dicta in the majority recognize 4. The fails to the opinion suggesting that a caretak- Fourth Amendment mandates this form of ing exception might applicable also be in cir ante, Instead,, balancing test. See at 152. the involving "private, cumstances or property, fixed states, majority simply any without citation to persons of located thereon.” See authority, police may stop that “a ante, at 151-152. We upon are not called in per- assist an individual whom a reasonable this case to decide whether officers are given totality the of the circumstances— son— property authorized to enter real on than less would believe is help.” in need of Id. emergency Brimage circumstances. See (Tex.Crim.App. 500-02 1996) (plurality op.). Prouse, anxiety.” policy by allowing

ate substantial That is hindered vehicles, at 1398. to stop any officers absent suspicion activity, of criminal simply be- then, question, The difficult is one the throwing cause a observed is, to declines answer—that Second, of up. subterfuge the risk on in stop whether the the instant case was these facts is real. Id. However well- in light of all the facts and reasonable Deputy was in intentioned Tomlinson this in the light circumstances and of interests exception the should be reserved appellant. of the State and the Aid- both circumstances where is intervention citizen is in need of medical who clearly necessary. is a How- attention valid interest.5 ever, which, this case facts taken presents Deputy Tomlinson’s actions were unrea- whole, as a support do not sonable under the standards mandated belief that in need such appellant was of would the Fourth Amendment. I affirm only sign immediate aid. The of distress Appeals. the of of I the Court by appellant shown that he vomited. dissent. That minimal further level distress is presented offset other facts in the rec- J., dissenting JOHNSON delivered instance, ord. passen- For was a PRICE, joined. opinion which J. ger being safely in a vehicle driven to respectfully majority’s I dissent the lawfully and which carried two other occu- to this cause to the court decision remand to pants apparently able render assistance. Additionally, separate- I appeals. write Furthermore, is in the there no indication ly express my reservations over the occupants the any record vehicle’s majority’s interpretation and extension of seeking they were neither assistance — community-caretaking function. Cady1 the any gesture interpret- made that could be initially that this has not note Court help ed requesting Officer Tomlinson as community-caretaking function adopted a they driving nor in a were manner I, 9 of the Texas under Article Section might suggest emergency. petition the Constitution.2 Because state’s appellant’s priva- these circumstances only under constitu- seeks review federal cy interests under Fourth Amendment unnecessary it grounds, tional is consid- rendering outweigh interest State’s it community-caretaking function as er Although “judicial aid. are not scales may apply to the Texas Constitution. compare gov- slight well calibrated to either “shall be privacy ernmental and interests on federal Constitution case,” Land; supreme Judges bal- Law of the side of the balance this every thereby, any ance shall be bound privacy should be struck favor State Dunbar, any Thing in the or Laws for at least two reasons. Constitution First, notwithstanding.” Contrary F.Supp. policy at 708. State to “[t]he Const, Thus, VI, cl. 2. art. govern- Fourth Amendment to minimize court, bound, to adhere mental confrontations with the individual.” as is state presented explana- recently in Hulit v. Deputy offered 2. This issue Tomlinson another car (Tex.Crim.App.1998). have tion for "could S.W.2d 431 —that out, [Appellant] had a blow lost control. totality We from of the circum- 1, found pole or some- could have smashed into Section 9 of stances in Hulit that Article thing gone car off like that. The could have violated, Constitution had not been the Texas ditch, him, top of broke into a rolled over on issue whether there but did not rule on the light case his of the facts this back.” exception community-caretaking to the is a speculative out- justification is far too Hulit, requirement. warrant weigh appellant’s privacy interests. 438. Dombrowski, 433, Cady S.Ct. 1. 413 93 2523, (1973). 706 37 L.Ed.2d

and follow the Supreme decisions of the appeals correctly Because the court of de- Court to the extent they issue, court, set the mini cided that a remand to that mum constitutional standards concerning majority, necessary. ordered the is not Rights the Bill of of the federal Constitu majority correctly notes that the tion, which applicable to the states in Cady search at issue was not conducted through the Fourteenth Amendment. An activity. to uncover evidence criminal 370, drews v. 382-83 Ante, at 151. The warrantless search was (Tex.Crim.App.1983). Accordingly, we are protect general public. conducted to bound the decision in Cady v. Dom 443, Cady, 413 U.S. at at 2529. S.Ct. browski, 433, 2523, 413 U.S. 93 S.Ct. The Supreme Court concluded that be- (1973), L.Ed.2d 706 where the U.S. Su automobile, cause the trunk of the preme Court recognized community- reasonably the officer believed contained caretaking exception to the warrant re revolver, the driver’s service was vulnera- quirement of the Fourth Amendment: vandals, ble to intrusion the warrant- Because of the regulation extensive less search was not unreasonable within traffic, motor vehicles and and also be- the meaning of the Fourth Amendment. cause of the frequency with which a 448, Id. at 93 S.Ct. at 2531. vehicle can become disabled or involved in an accident on highways, the that, Cady, It is clear in the search for extent police-citizen involving contact the defendant’s service revolver was “to automobiles will substantially greater be protect the public possibility from the than police-citizen in contact a home or a revolver would fall into untrained or office. Some such contacts will occur perhaps even malicious hands.” Id. at because the officer believe the op- added.) 93 S.Ct. at 2529. (Emphasis As erator has statute, violated a criminal Supreme stated, justifi- Court later but many more will not be of that na- cation for the initial intrusion of the vehicle officers, ture. police Local unlike feder- was the “concern safety officers, al frequently investigate vehicle general public might who endangered if accidents which there is no claim of an intruder removed a revolver from the liability what, engage trunk of the vehicle.” Id. at term, want of a better may be described added.) Hence, (Emphasis as community functions, earetaking to- repeatedly emphasized tally detection, divorced from the inves- general the concern was for the pub- tigation, acquisition of evidence relat- lic, individual. ing to the violation of a criminal statute. believe, Id. at 93 S.Ct. at The “community-caretaking function” of therefore, that a community-caretaking officers, this, in cases such as has its doctrine exists in but it is the feder- ubiquity source of the automobile al doctrine as in Cady. defined dynamic, differing situations officers are they confronted with which The court of refused to adopt must interact with the car and driver to community-caretaking doctrine without di- promote public safety. rection from See U.S. v. Rodri this Court. Wright, 959 Cir.1991), (1st guez-Morales, S.W.2d 929 F.2d (Tex.App. Austin, — denied, pet.granted). rt. The court of appeals also ce that, (1992). (Em found even if it L.Ed.2d 774 doctrine, added.) phases acknowledges the instant case was The state Appellant not lawful. Id. passenger, previous implicating was a Texas cases vehicle, not the driver of the community-caretaking and therefore function involve sit his detention was not lawful under the in which a stopped uations vehicle is be Cady community-caretaking doctrine. cause of a officer’s concern for the br. The func- community-caretaking

welfare of the driver. St. at 6.3 stone the promulgated Cady. tion state that this distinction is mis argues placed. similarly, The holds find I no Supreme have found Court cases ing drew that the no distinc citing Cady community-caretaking the doc- community- tion in of the applicability the point on trine with the facts the instant function to to determine Therefore, guidance case. little can be to passengers opposed the welfare of however, found There guidance, there. is Ante, 152.However, that of the drivers. at recently from a the Idaho case decided Supreme reason no dis the Court drew where the defendant pre tinction is because that issue was not in an passenger a automobile that was Cady, any sented nor nor addressed though by police detained even the officer Supreme Court decision since. Wixom, v. observed no violation. State Cady, 413 U.S. 93 S.Ct. 2523. (1997). 130 Idaho 947 P.2d just single-car In a before mid- accident

I significant. find the distinction Unlike car a night, struck mailbox and Wixpm’s a passenger, endangers an unfit driver into a through went a fence field. Id. himself, only It large. but the accident, reported the a neighbor After this endangerment general public of the the car in the responding officer observed that Cady community-caretaking the doc- registered field and it was determined that sought trine to In the curb. instant Id. The officer also de- to Wixom’s wife. it is to how the imagine appellant, difficult al- unoccupied, that the car was termined passenger leaning right out of the rear beer, though empty did notice beer he throwing up, a dan- passenger window cans, and an odor of alcohol. Id. to ger general public. Although appel- the injury in or sign officer found no around may lant certainly have been a to waiting car. assis- the Id. As he was himself, did not threat to constitute a accident, offi- investigate tance to the the “safety public.” of the general approaching. a pickup cer truck observed stopping officer’s articulated reasons for Id. He that no traffic testified he observed detaining the car in which doing that vehicle was violations and “[t]hey that could were nothing have been suspicious, but blowout, have He could had lost control. traveling slowly usual. Id. The more than pole have smashed into a or some- pickup, which Wix- deputy stopped thing gone like that. The car could have passenger, om was a to ascertain whether him, ditch, into a on top rolled over occupants regard- had information back.” Wright, broke his S.W.2d questioning After ing the accident. Id. no Given there was evidence him, for driv- deputy arrested Wixom driving likely pro- reckless which was of alcohol. Id. ing under the influence consequences projected by duce officer, agree with the court of suppress Wixom filed motion unreasonably these reasons were following the stop evidence obtained speculative. arguen- assuming, Even his contending the violated pickup, do, deputy given that the reasons Id. The state rights. Fourth Amendment they refer to the rea- legitimate, argued deputy’s were actions were only community-caretak- safety appears to have appellant. part There sonable as of his wit- testimony expresses concern the need to locate been no function and accident. Id. The district general public for the the eorner- nesses 431; State, 1998); App. State, Citing Mc Antonio Rheinlander Hulit —San State, (Tex.App.— Donald v. (Tex.App. S.W.2d 917 —Austin pet.); Cunningham Fort abated, Worth no 1994), pet. permanently dism'd (Tex.App. 966 S.W.2d 811 —Beaumont (Tex.Crim.App.1996). S.W.2d 527 1998); (Tex. Ortega v. S.W.2d 361 granted court an suppress. protect,” may stop the motion to and assist individu- appeal, argued On that the state the com- al person whom a reasonable would be- munity-caretaking applied function be- Ante, help. lieve is in need at 152. cause of the need find the possibly First, this is an unwarranted extension of injured occupants of the car. Id. at 1002. above, Cady. Cady prog- As noted and its However, Idaho eny general focus on the concern agreed with the court in rejecting district Second, public, not the individual. al- argument, the state’s finding dep- that the lowing police to detain officers someone uty merely seeking was information about who, subjective in in opinion, their need the accident and that he did not have a assistance, majority effectively re- reasonable belief the pickup occupants that guarantees moves constitutional which could assist him. Id. protect irresponsible individuals from here are circumstances similar to overbearing police longer intrusion. No Wixom. Appellant was not driving the does an suspicion officer need reasonable car, the car being was not driven reckless that, only to detain a in person, the offi- ly, nor were traffic violations ob opinion, cer’s that needs person assistance. Wright, served. 959 S.W.2d at Wix Finally, arguendo, assuming, police that om, 947 P.2d at Like 1001. the officer in officers properly stop and assist an Wixom, officer the instant help, individual in need I disagree with according testimony, to his did not have a the majority person” that a “reasonable suspicion reasonable that persons standard be used to determine whether the car in which appellant riding were assistance is Consistent needed. with oth- involved criminal activity. Wright, 959 enforcement, er matters of appro- law 357, Wixom, S.W.2d at 947 P.2d at 1002. priate standard should one of a “rea- There is nothing in his testimony sug police sonable officer.” gest well-being of the general public was at risk. Based forego on the citation, majority, without again an- ing, agree with the court appeals nounces four relevant to factors the deter- detention appellant was not lawful un mination of an whether individual needs der Cady community-caretaking func Ante, assistance. 152. These factors tion. have not presented any previous been Beyond that the concluding community- case in applied.5 which has been Texas, function exists in Although, Cady, a community- under majority, although espousing ap- narrow caretaking function exists re- plicability, Cady in ways extends mand appear appropriate, to have is not as the court of precedent. no Without ci- tation, the majority expressly that a police “appellant’s states of- held ficer, as part duty of his to “serve and detention would not have lawful even See, e.g., request Crittenden v. 899 S.W.2d the statement to be a for an attor ("Under (Tex.Crim.App.1995) (internal omitted). modi ney.”) (Emphases citation standard, objective fied a reasonable added.) officer, a without traffic citation book .. (Tex. Brimage v. Assuming, arguendo, ap- that the factors are Crim.App.1994) ("Taking into account all of ropos complete, application of the factors information, the above reasonable of supports to the instant case further the deci- emergency could an conclude that exist ficer appeals. Appellant sion of the court of U.S., ..."); 452, 459, ed Davis v. distress; merely showing vomiting, ap- little 2350, 2355, vehicle; pellant safely in a ("Although suspect 'speak don,’ need not with the people two other with in the were discrimination of Oxford he must vehicle, him; apparently able to assist and it present articulate his desire have counsel traffic, presenting was 4:00 a.m. sufficiently with little clearly in the would minimal circumstances understand to others. earetakmg’ Cady ‘community

under at 358. I Wright,

doctrine.” court of affirm the

would

appeals. dissent. respectfully Jerry BIRDWELL, parte

Ex Frank

Applicant.

No. 73653.

Court of Criminal

En banc.

Dec. Scheve, Houston, appellant.

Gerald Chin, Atty., Dist. Baldwin Asst. Hous- Austin, Paul, ton, Atty., Matthew State’s for State.

WOMACK, J., opinion delivered P.J., McCORMICK, in which KELLER, PRICE, MANSFIELD, KEASLER, JJ., HOLLAND, joined. is whether de- issue this case One right not may fendant waive the same of- placed jeopardy twice defendant hold fense. We called right. upon are also waive the We

Case Details

Case Name: Wright v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 15, 1999

Citation: 7 S.W.3d 148

Docket Number: 297-98

Court Abbreviation: Tex. Crim. App.