Cunningham v. State

• Decision Date: 08 April 1998
• Docket Number: No. 09-96-310,09-96-310
• Citation: 966 S.W.2d 811
• Parties: Connie Sue CUNNINGHAM, Appellant, v. The STATE of Texas, Appellee. CR.
• Court: Texas Court of Appeals

Page 811

966 S.W.2d 811

Connie Sue CUNNINGHAM, Appellant, v. The STATE of Texas, Appellee.

No. 09-96-310 CR.

Court of Appeals of Texas,

Beaumont.

Submitted March 5, 1998.

Decided April 8, 1998.

Peter Speers, III, The Woodlands, for appellant.

Michael A. McDougal, District Attorney, Gail Kikawa McConnell, Assistant District Attorney, Conroe, for state.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

BURGESS, Justice.

Connie Sue Cunningham pleaded guilty to DWI-subsequent offense and the trial court assessed punishment at three years' imprisonment in the Texas Department of Criminal Justice, Institutional Division and assessed a $500 fine. The court suspended her sentence and placed her on community supervision. She brings one point of error alleging the trial court erred in denying her motion to suppress.

At the hearing on the motion to suppress, Sergeant Phillip Dupuis of the Conroe Police Department testified that on February 17, 1996, he was patrolling while working on a gang activity project. Shortly after midnight, he noticed a woman driving a vehicle with a flat tire about 5 m.p.h. on the shoulder of the road. He followed her for a short distance and then turned on the overhead lights "[t]o assist her in changing her flat." Dupuis stated he activated the lights "so she would stop, so that she would know it was a police officer who was willing to assist her." Upon stopping Cunningham, Dupuis observed that she had a strong odor of alcohol on her breath and person. She was unable to perform agility tests. Dupuis then arrested her.

Prior to trial, Cunningham filed a motion to suppress, moving the suppression of all evidence obtained as a result of the initial detention of her by Dupuis, including his observations, field sobriety tests, and all other evidence obtained as a result of her detention. She argues such evidence was obtained in violation of rights secured to her by the Fourth and Fourteenth Amendments to the United States Constitution and article I, section 9 of the Texas Constitution. Cunningham argues the stop was without probable cause, or with any specific articulable facts to reasonably suspect the person stopped is associated with criminal activity and that TEX. CODE CRIM. PROC. ANN. art 38.23 (Vernon Pamph. 1998) mandates that her motion to suppress be granted and that her DWI conviction be reversed and remanded for a new trial.

Before a person driving an automobile may be stopped and lawfully detained by an officer, that officer must have specific articulable facts to reasonably suspect the person stopped is associated with criminal activity. For a stop to be lawful under the reasonable suspicion standard, there must exist articulable facts used by the officer to create some reasonable inference of criminal conduct. Viveros v. State, 828 S.W.2d 2, 4 (Tex.Crim.App.1992); Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App.1989). A stop is justified if the officer, based upon specific and articulable facts, reasonably surmises that the detained person may be associated with a crime. Davis v. State, 829 S.W.2d 218, 219 (Tex.Crim.App.1992) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). When the credibility of witnesses is not involved, nor historical facts in dispute, determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Ornelas v. United States, 517 U.S. 690, 698-99, 116 S.Ct. 1657, 1662-63, 134 L.Ed.2d 911, 920 (1996); Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997); Wright v. State, 959 S.W.2d 355, 357 (Tex.App.--Austin 1998, pet. filed).

In the present case, we are faced with the issue of whether a detention is justified when an officer, based on specific and articulable facts, reasonably believes a motorist is in need of assistance as a result of illness, a malfunctioning vehicle, or some other impairment. The Fort Worth Court of Appeals has recognized that exception in two opinions. In Hulit v. State, 947 S.W.2d 707, 711 (Tex.App.--Fort Worth 1997, pet. granted), the court stated:

[I]n the absence of any suspicion of criminal activity, it is constitutionally permissible for officers to conduct searches or seizures where the officers reasonably believe that their action is necessary to protect an individual or the public from harm. That rationale should apply whether the object of intrusion is a residence or a vehicle, and we so hold. In doing so we reaffirm our holding in McDonald, and we further adopt an objectively reasonable standard of review. The stop is permissible where the officer had an objectively reasonable basis for believing that the motorist posed a danger to himself or the public, or was otherwise in need of immediate assistance.

The Fort Worth court has also held: "[W]hen a police officer has a demonstrable reason to believe that a particular individual may be unfit to drive for medical or other reasons, a temporary stop is justified for the limited purpose of investigating that person's well-being." McDonald v. State, 759 S.W.2d 784, 785 (Tex.App.--Fort Worth 1988, no pet.). Contra Wright, 959 S.W.2d at 358 (refusing to adopt the community caretaking doctrine without direction from the Court of Criminal Appeals); Rheinlander v. State, 888 S.W.2d 917, 920 (Tex.App.--Austin 1994), pet. dism'd, 918 S.W.2d 527 (Tex.Crim.App.1996)(finding community caretaking doctrine to be at odds...