Ortega v. State

• Decision Date: 10 June 1998
• Docket Number: No. 04-97-00205-CR,04-97-00205-CR
• Parties: Salvador ORTEGA, III, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 361

974 S.W.2d 361

Salvador ORTEGA, III, Appellant, v. The STATE of Texas, Appellee.

No. 04-97-00205-CR.

Court of Appeals of Texas San Antonio.

June 10, 1998.

Rehearing Overruled July 7, 1998.

Wade Arledge, Frank B. Suhr, New Braunfels, for Appellant.

Robert Covington, County Atty., Elizabeth D. Branch, Asst. County Atty., Seguin, for Appellee.

Before STONE, GREEN and DUNCAN, JJ.

OPINION

STONE, Justice.

Salvador Ortega, III, appeals his conviction for the offense of driving while intoxicated. Ortega entered a plea of no contest to the charge of driving while intoxicated following the trial court's denial of his motion to suppress evidence. In his sole point of error, Ortega assails the trial court's denial of his motion to suppress evidence, arguing he was subjected to an illegal seizure in violation of the Texas Constitution. Finding that Ortega was lawfully stopped, we affirm the trial court's order.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of the case are not in contention. No live witnesses testified at the suppression hearing. The only evidence presented to the trial court came in the form of arresting Officer Balderas' police report which contains the following information: In the early morning hours of October 30, 1996, Officer Balderas of the Cibolo Police Department observed Ortega driving westbound in a 1979 Ford Bronco on FM 78 at a slow rate of speed. Balderas, traveling eastbound, activated his radar unit and monitored Ortega's vehicle for approximately three blocks. Ortega was traveling between 18 to 20 m.p.h. in a 50 m.p.h. zone. Balderas made a u-turn and followed Ortega for a short distance. Ortega's speed did not increase which prompted Balderas to stop Ortega "to ascertain if [he] was experiencing vehicle problems." Balderas approached Ortega's vehicle and observed typical indications of intoxication. Ortega's speech was slurred, his eyes were glassy and bloodshot, and he smelled of intoxicants. Ortega admitted he had recently consumed eight or nine beers. He then consented to and failed various field sobriety tests.

Ortega was charged by information for the offense of driving while intoxicated. He filed a motion to suppress admission of evidence, arguing the evidence obtained was the product of an illegal stop. The trial court denied Ortega's motion and granted permission to appeal the pre-trial ruling.

STANDARD OF REVIEW

Our review of the case is guided by Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997). In Guzman, the Court of Criminal Appeals clarified the appropriate deference that appellate courts should afford to trial court rulings. Guzman, 955 S.W.2d at 89. Specifically, the court instructed that an appellate court should defer to a trial court's determination of historical facts supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Id. Appellate courts should afford the same deference to a trial court's rulings on the application of law to fact questions, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. However, appellate courts may review de novo "mixed questions of law and fact" not falling within this category. Id. Because the facts set out in Balderas' report are undisputed, and because the trial court was not in a better position to determine the reasonableness of Balderas' stop from these facts, we review the trial court's ruling de novo. See id. at 87. We still review the evidence presented at the suppression hearing in the light most favorable to the trial court's ruling. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996).

WARRANTLESS SEIZURE

Article I, section 9 of the Texas Constitution does not provide guarantees against all searches and seizures, but only against unreasonable searches and seizures. See Giacona v. State, 372 S.W.2d 328, 333 (Tex.Crim.App.1962), cert. denied, 375 U.S. 843, 84 S.Ct. 92, 11 L.Ed.2d 70 (1963). A search or seizure conducted without a warrant is per se unreasonable, subject only to a few specifically established and well delineated exceptions. See Reyes v. State, 741 S.W.2d 414, 430 (Tex.Crim.App.1987). The burden of proving any exception to the warrant requirement rests with the State. See Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App.1986).

ARGUMENTS ON APPEAL

It is undisputed that Balderas' stated reason for stopping Ortega was to determine The State counters that Ortega is laboring under the faulty premise that a police stop or detention conducted for a reason other than for the investigation of or suspicion of criminal activity is constitutionally infirm. The State maintains that the reasonableness of a detention for constitutional purposes may depend upon a variety of factors, and that an officer's well-founded suspicion of a citizen's need for help does justify a brief, relatively unintrusive stop to determine whether aid is appropriate. The State contends that Balderas' stop, conducted for the specific purpose of determining whether Ortega was in need of assistance, falls within the "community caretaking function" exception to the requirement that a temporary detention be justified by reasonable suspicion. The State thus concludes that the trial court properly denied Ortega's motion to suppress. See McDonald v. State, 759 S.W.2d 784 (Tex.App.--Fort Worth 1988, no pet.).

whether Ortega was in need of assistance due to the slow rate of speed at which he was traveling. Ortega avers that such a belief, even if reasonable, does not justify the stop. To support this position, Ortega relies upon Viveros v. State, 828 S.W.2d 2 (Tex.Crim.App.1992) and Garza v. State, 771 S.W.2d 549 (Tex.Crim.App.1989), for the proposition that only a reasonable suspicion of criminal activity will authorize police officers to stop and detain individuals. Ortega contends that the record in the instant case is devoid of evidence that would create some reasonable inference of criminal conduct, thereby rendering the stop illegal and the resulting evidence inadmissible. See Viveros, 828 S.W.2d at 4.

In reply, Ortega urges this court not to adopt the "community caretaking function" as an exception to the warrant requirement, noting that the Court of Criminal Appeals has had several opportunities to adopt it, but has declined to do so. See Viveros, 828 S.W.2d at 4; Shaffer v. State, 562 S.W.2d 853, 854 (Tex.Crim.App.1978). Ortega further argues that even if we recognize and apply this exception to the warrant requirement in the instant case, the record does not support the conclusion that Balderas' stop was an objectively reasonable exercise of his "community caretaking function," and therefore, the trial court erred in denying his motion to suppress.

COMMUNITY CARETAKING FUNCTION

The "community caretaking function" exception was first articulated in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), when the United States Supreme Court observed:

Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally...