Tania Velazquez v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00041-CR
___________________________
TANIA VELAZQUEZ, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 6
Tarrant County, Texas
Trial Court No. 1680049
Before Kerr, Birdwell, and Walker, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Appellant Tania Velazquez was arrested and charged with driving while
intoxicated. After the trial court denied Velazquez’s pretrial motion to suppress
evidence from her detention and arrest, she pleaded guilty pursuant to a plea
agreement. The trial court adjudged Velazquez guilty and assessed her punishment at
90 days in jail, probated for 15 months, and a $500 fine. Velazquez appeals from her
conviction, arguing in two issues that the trial court erred by denying her motion to
suppress. We will affirm.
I. Background
At 3:23 a.m. on January 25, 2021, an employee at a Whataburger in Grand
Prairie called 911 to report that a vehicle had been sitting in the restaurant’s drive-
through for about 20 minutes. The caller thought that the driver was asleep. Officer
James Kaman—a certified Texas peace officer and a patrol officer with the Grand
Prairie Police Department—was dispatched to the restaurant for a “check welfare”
call.
When Officer Kaman arrived at the restaurant at about 3:34 a.m., he saw a
vehicle parked at the drive-through’s entrance. The vehicle was not “necessarily
blocking the entire entrance,” but Officer Kaman saw cars having to drive around the
vehicle to access the drive-through.
The keys were in the vehicle’s ignition, the engine was running, and the
windshield wipers were on. The vehicle appeared to be in park. The driver’s seat was
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reclined, and the driver—Velazquez—was passed out or asleep with her head back
and mouth open. Before attempting to wake Velazquez, Officer Kaman opened the
driver’s side door, turned off the car, and removed the keys from the vehicle’s
ignition.
Officer Kaman then started tapping Velazquez’s elbow and shining his
flashlight in her eyes. It took Officer Kaman about 20 seconds to wake her up. Once
she was awake, Officer Kaman identified himself as law enforcement and asked her if
she was “okay” to find out why she was passed out or asleep. Officer Kaman thought
that Velazquez was a “little bit” disoriented and confused about the situation. He
could see that Velazquez’s eyes were bloodshot and watery, and he smelled alcohol
coming from Velazquez.
At that point, Officer Kaman suspected that Velazquez was intoxicated and
that her intoxication was the reason that she was passed out in her vehicle. Officer
Kaman asked Velazquez for identification, and while she was looking for it in her
purse, he asked her if she knew where she was. Velazquez thought she was in
Richardson, a city about 30 minutes northeast of Grand Prairie. Velazquez struggled
to find her identification card, but Officer Kaman could see it in her purse. After she
gave him permission to help her look for it, he was able to quickly locate it and pull it
out of her purse.
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Velazquez admitted that she had been at a bar in Arlington. When Officer
Kaman asked how much she’d had to drink at the bar, she admitted she had
consumed three beers and two shots.
Officer Kaman then asked Velazquez if she would cooperate in performing
standardized field sobriety tests (SFSTs), and Velazquez agreed. Officer Kaman—who
is NHTSA1 certified in SFSTs—conducted three SFSTs: the horizontal-gaze-
nystagmus (HGN) test, the walk-and-turn test, and the one-leg-stand test. Velazquez
failed all three of them.
Based on the totality of the circumstances—Velazquez’s admissions that she
had been at a bar and had been drinking; her watery, bloodshot eyes; the smell of
alcohol on her breath; her parked car partially blocking drive-through traffic in the
Whataburger parking lot; and her failing the SFSTs—Officer Kaman believed that he
had probable cause to arrest Velazquez for driving while intoxicated and for a warrant
to draw her blood. Officer Kaman then placed Velazquez under arrest, and she
consented to a blood draw.
The State charged Velazquez with driving while intoxicated. See Tex. Penal
Code Ann. § 49.04(a), (b). She moved under Article 38.23 of the Texas Code of
Criminal Procedure to suppress any evidence from her detention and arrest, arguing
that Officer Kaman’s stop was not justified under the community-caretaking
NHTSA is an acronym for the National Highway Traffic Safety
1
Administration.
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exception to the Fourth Amendment and that Officer Kaman lacked reasonable
suspicion to detain her. She further argued that Officer Kaman had arrested her
without probable cause, which violated her Fourth Amendment right to be free from
unlawful searches and seizures. Finally, Velazquez argued that her consent to the
blood draw was involuntary because her detention and arrest were unlawful.
At the hearing on Velazquez’s suppression motion, Officer Kaman testified.
His report, footage from his body camera, and the 911-call recording2 were admitted
into evidence. At the hearing’s conclusion, the trial court denied the suppression
motion.
Velazquez reserved her right to appeal the trial court’s ruling on her
suppression motion and pleaded guilty pursuant to a plea agreement. After her
conviction, Velazquez timely appealed. In two issues, she challenges the trial court’s
denial of her suppression motion: (1) the trial court erred in determining that Officer
Kaman had exercised the community-caretaking function and (2) the trial court erred
in concluding that Officer Kaman had probable cause to arrest Velazquez and to draw
her blood without a warrant.
II. Standard of Review
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019).
2
According to Officer Kaman, the 911 recording was consistent with the facts
he received from dispatch that night.
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Because the trial judge is the sole trier of fact and judge of the witnesses’ credibility
and the weight to be given their testimony, Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007), we defer almost totally to a trial court’s rulings on questions of
historical fact and application-of-law-to-fact questions that turn on evaluating
credibility and demeanor, but we review de novo application-of-law-to-fact questions
that do not turn on credibility and demeanor, Martinez, 570 S.W.3d at 281. Whether
the totality of circumstances supports reasonable suspicion or probable cause is a legal
determination we review de novo. State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim.
App. 2008).
When, as here, the record is silent on the reasons for the trial court’s ruling and
there are no explicit fact findings and neither party timely requested findings and
conclusions from the trial court, we infer the necessary fact findings that would
support the trial court’s ruling if the evidence, viewed in the light most favorable to
the trial court’s ruling, supports those findings. Johnson v. State, 414 S.W.3d 184,
192 (Tex. Crim. App. 2013); State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App.
2006). We then review the trial court’s legal ruling de novo unless the implied fact
findings supported by the record are also dispositive of the legal ruling. Kelly,
204 S.W.3d at 819.
III. Applicable Law
The Fourth Amendment protects against unreasonable searches and seizures
by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. A defendant
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seeking to suppress evidence on Fourth Amendment grounds bears the initial burden
to produce some evidence that the government conducted a warrantless search or
seizure that he has standing to contest. Rawlings v. Kentucky, 448 U.S. 98, 104–05,
100 S. Ct. 2556, 2561 (1980); State v. Martinez, 569 S.W.3d 621, 623 (Tex. Crim. App.
2019). Once the defendant does so, the burden shifts to the State to prove either that
the search or seizure was conducted pursuant to a warrant or, if warrantless, was
otherwise reasonable. Martinez, 569 S.W.3d at 623. Here, Velazquez was not seized
pursuant to a warrant, so the State had the burden to show that her detention and
arrest were reasonable under the applicable standards.
IV. Velazquez’s Detention
Velazquez argues in her first issue that the trial court erred by denying her
suppression motion because her detention did not fall within the community-
caretaking exception to the Fourth Amendment, contending that the exception does
not apply because Officer Kaman’s exercise of the community-caretaking function
was pretextual. She further contends that absent the exception, Officer Kaman lacked
specific, articulable facts providing reasonable suspicion to detain her.
A detention may be justified on less than probable cause if a person is
reasonably suspected of criminal activity based on specific, articulable facts. Terry v.
Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Johnson v. State, 622 S.W.3d 378,
384 (Tex. Crim. App. 2021). An officer conducts a lawful temporary detention when
he reasonably suspects that an individual is violating the law. See Johnson, 622 S.W.3d at
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384. Reasonable suspicion exists when, based on the totality of the circumstances, the
officer has specific, articulable facts that, when combined with rational inferences
from those facts, would lead him to reasonably conclude that a particular person is,
has been, or soon will be engaged in criminal activity. Id. This is an objective standard
that disregards the detaining officer’s subjective intent and looks solely to whether the
officer has an objective basis for the stop. Ramirez-Tamayo v. State, 537 S.W.3d 29,
36 (Tex. Crim. App. 2017).
But even without reasonable suspicion or probable cause that an offense had
been committed, a police officer may reasonably seize an individual in accordance
with his community-caretaking function. Corbin v. State, 85 S.W.3d 272, 276 (Tex.
Crim. App. 2002). The community-caretaking function is “totally divorced from the
detection, investigation, or acquisition of evidence relating to the violation of a
criminal statute.” Id. at 277 (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct.
2523, 2528 (1973)). Rather, the exception concerns such police functions as assisting
individuals who cannot care for themselves or who are in danger of physical harm,
resolving conflicts, and reducing the opportunities for commission of crime. Laney v.
State, 117 S.W.3d 854, 860 (Tex. Crim. App. 2003); see Wright v. State, 7 S.W.3d 148,
151 (Tex. Crim. App. 1999) (“As part of his duty to ‘serve and protect,’ a police
officer may stop and assist an individual whom a reasonable person—given the
totality of the circumstances—would believe is in need of help.”). This function may
be invoked to justify a detention if (1) the officer was primarily and subjectively
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motivated by a community-caretaking purpose and (2) the officer’s belief that the
individual needed help was objectively reasonable. Gonzales v. State, 369 S.W.3d 851,
854–55 (Tex. Crim. App. 2012).
Here, Velazquez concedes that “[a]s the exclusive judge of credibility and finder
of fact, the trial court could have concluded Officer Kaman was primarily motivated
by community[-]caretaking concerns.” We thus must determine only whether the
evidence supports a conclusion that Officer Kaman’s belief that Velazquez needed
help was objectively reasonable. See id. To make this determination, we consider the
following nonexclusive factors: (1) the nature and level of the distress exhibited by
Velazquez, (2) Velazquez’s location, (3) whether or not Velazquez was alone or had
access to assistance other than that offered by the officer, and (4) to what extent
Velazquez, if not assisted, presented a danger to herself or others. See id. at 855;
Wright, 7 S.W.3d at 151–52.
Velazquez argues that considering these factors, Officer Kaman’s belief that
she needed help was not objectively reasonable. Regarding the first factor, Velazquez
points out that Officer Kaman testified at the suppression hearing that he did not see
any signs of a medical emergency, injury, or distress when he arrived on scene.
Although he asked Velazquez if she was okay, he admittedly did not ask her any
questions about whether she had suffered a medical emergency, whether she had been
injured, or whether she was in pain. Instead, he asked her whether she had been
drinking. Velazquez “submit[s] that merely sleeping in a parked vehicle reflects that
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the first factor—the nature and level of distress exhibited, which carries the most
weight—was practically nonexistent.”
We disagree. “[C]ourts have never required an officer to know, with any degree
of certainty, the specific distress an individual may be suffering,” and an officer is
entitled to make inferences from the information he has in determining whether a
person needs assistance. Gonzales, 369 S.W.3d at 856. An officer who either observes a
person asleep or unconscious in a parked vehicle or receives a report of such a
situation has an objectively reasonable basis for believing that the person is in distress
and needs help. See, e.g., Ramirez v. State, No. 08-19-00097-CR, 2021 WL 3260630, at
*5 (Tex. App.—El Paso July 30, 2021, pet. ref’d) (not designated for publication)
(concluding that officer who had been “informed by dispatch that a 911 caller had
seen an individual in a vehicle matching the description of Appellant’s truck ‘slumped
down’ in the vehicle at a stop sign, raising the possibility that the individual may have
fallen asleep, fainted, or had suffered an ‘attack’ of some kind” supported first factor
weighing in favor of detention); Windham v. State, No. 04-13-00284-CR,
2014 WL 769333, at *3 (Tex. App.—San Antonio Feb. 26, 2014, no pet.) (mem. op.,
not designated for publication) (“There is no question that responding to a report of
an unresponsive person in a parked car, regardless of its location, falls within a police
officer’s community[-]caretaking function.”); see also 3 Wayne R. LaFave, Search and
Seizure § 7.4(f) (6th ed. 2022) (“If the police find a person unconscious or disoriented
and incoherent in a vehicle . . . , it is reasonable for them to enter the vehicle for the
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purpose of giving aid to the person in distress and of finding information bearing
upon the cause of his condition.”).
Here, Officer Kaman was dispatched on a check-welfare call in response to a
911 call regarding a vehicle that had been sitting in the Whataburger drive-through for
about 20 minutes because the driver may have been asleep. When Officer Kaman
arrived, he saw Velazquez reclined in her parked and running vehicle’s driver’s seat.
She was passed out or asleep with her head back and mouth open. And although
Officer Kaman ultimately determined that Velazquez was not in any distress but was
instead under the influence of alcohol, that does not mean that his initial belief that
she was in distress was not objectively reasonable. See Ramirez, 2021 WL 3260630, at
*6. Accordingly, we conclude that the first factor supports a finding that Officer
Kaman’s belief that Velazquez needed help was objectively reasonable.
Regarding the second and third factors—Velazquez’s location and whether or
not Velazquez was alone or had access to assistance other than that offered by the
officer—Velazquez argues that she was in a parking lot of an open Whataburger that
was fully staffed with employees.3 Although the State does not dispute that the
3
Velazquez asks us to take judicial notice that “all real Texans know
Whataburger is open 24 hours a day.” While tempting, it is impossible for us to
judicially notice what all real Texans know, and we are uncertain whether all
Whataburger restaurants are, in fact, open 24 hours. See Tex. R. Evid. 201. In any
event, it is unnecessary for us to do so because after reviewing the evidence, it is
apparent that the Whataburger where this incident occurred was open at the time that
Velazquez was detained and arrested.
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Whataburger was open, it points out that Velazquez’s vehicle was not parked in a
designated parking spot but was idling in the parking lot in a location that required
other vehicles to drive around it to access the drive-through. The State further points
out that Velazquez was unresponsive and alone in her vehicle and that aside from a
customer’s notifying a Whataburger employee about Velazquez and a Whataburger
employee calling 911 for police assistance, no one else had attempted to assist
Velazquez. Although alone in her vehicle, Velazquez was not in an isolated area and
had access to an open restaurant if she needed assistance. We conclude that these two
factors weigh against detention. See King v. State, No. 05-13-00178-CR,
2014 WL 2807993, at *4 (Tex. App.—Dallas June 18, 2014, no pet.) (mem. op., not
designated for publication).
As to the fourth factor—the extent to which Velazquez was a danger to herself
or others—Velazquez asserts that she “was just minding her own business, asleep in
her car, and . . . no evidence was adduced at the pretrial hearing reflecting that [she]
presented a danger to herself or anyone else while merely sleeping.” We disagree.
Velazquez’s vehicle was not parked in a parking space but was parked at the drive-
through’s entrance and was partially blocking drive-through traffic so that cars had to
drive around it to access the drive-through. Before attempting to wake Velazquez,
Officer Kaman turned off the car and removed the keys from the vehicle’s ignition
because, in his experience, when you wake a driver up, “their natural startled response
is to put the car in drive or put their foot on the accelerator and take off.” If
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Velazquez had been startled awake and suddenly driven off, she could have injured
herself or others. See id. at *5. We thus conclude that the fourth factor weighs in favor
of detention.
Accordingly, viewing the evidence in the light most favorable to the trial court’s
ruling and considering the totality of the circumstances, we conclude that the evidence
supports the trial court’s conclusions that Officer Kaman’s subjective belief that
Velazquez needed help was objectively reasonable and that Velazquez’s detention was
thus justified under the community-caretaking exception. See, e.g., Windham,
2014 WL 769333, at *1, *3 (holding that officer responding to report of an
unresponsive person in the driver’s seat of a car parked with its engine off in a parking
lot next door to county emergency-medical-services building fell within police
officer’s community-caretaking function); King, 2014 WL 2807993, at *4–
5 (concluding that officer had an objectively reasonable belief that individual needed
assistance when he saw the individual asleep or passed out in the driver’s seat of a
running car with four flat tires parked in an open gas station’s parking lot); Rochester v.
State, No. 2-03-519-CR, 2004 WL 1798090, at *1 (Tex. App.—Fort Worth Aug. 12,
2004, no pet.) (per curiam) (mem. op., not designated for publication) (concluding
that officer reasonably exercised his community-caretaking functions when he woke a
driver who was alone and unconscious in a vehicle near a busy thoroughfare). We
therefore need not address Velazquez’s reasonable-suspicion argument. See Tex. R.
App. P. 47.1.
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We overrule Velazquez’s first issue.
V. Velazquez’s Arrest
Velazquez’s second issue challenges her arrest. She argues that the trial court
erred by concluding that Officer Kaman had probable cause to arrest her and to draw
her blood without a warrant.
Under the Fourth Amendment, a warrantless arrest is unreasonable per se
unless it fits into one of a “few specifically established and well delineated
exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135 (1993);
Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005). A police officer may arrest
an individual without a warrant only if probable cause exists with respect to that
individual and the arrest falls within one of the exceptions set out in the code of
criminal procedure. Torres, 182 S.W.3d at 901; see Tex. Code Crim. Proc. Ann. arts.
14.01–.03, 14.04.
To have probable cause for a warrantless arrest, an officer must reasonably
believe, based on facts and circumstances within the officer’s personal knowledge––
whether through direct observation, from reasonably trustworthy information, or
both—that a person has committed or is committing an offense. State v. Woodard,
341 S.W.3d 404, 412 (Tex. Crim. App. 2011); Torres, 182 S.W.3d at 901–02. The
officer must base probable cause on specific, articulable facts rather than the officer’s
mere opinion. Torres, 182 S.W.3d at 902. We use the “totality of the circumstances”
test to determine whether probable cause existed for a warrantless arrest. Id.14
Velazquez’s argument attacks Officer Kaman’s administration of the SFSTs.
She argues that at the time Officer Kaman administered those tests, he “failed to ask
Velazquez whether she had taken any medication, whether she had suffered any sort
of head injury, whether she suffered from epilepsy, and whether she had any other
sort of medical conditions.” According to Velazquez, if she had answered
affirmatively to these inquires, the value of the SFSTs would have been negated, and
because Officer Kaman “did not adequately eliminate possible conditions that would
have yielded a false positive on Velazquez’s SFSTs, he failed to develop probable
cause during his detention of Velazquez.”
Officer Kaman testified that he was trained to look for “signs” that might
result in “a false positive on [the] HGN,” such as medications and medical issues.
Before conducting the SFSTs, Officer Kaman confirmed that Velazquez did not have
epilepsy, an inner-ear infection, diabetes, any type of head trauma, or anything
“physical,” though he did not specifically ask Velazquez whether she had taken any
medication. Officer Kaman testified that he observed all six clues on the HGN test,
four clues on the walk-and-turn test, and two clues on the one-leg-stand test. In
addition to Officer Kaman’s testimony about administering the SFSTs, his body-
camera recording, which included footage of him administering those tests, was
played for the trial court.
Velazquez’s challenge here to Officer Kaman’s administration of the SFSTs
goes to the weight of the tests, not their admissibility or reliability. See McRae v. State,
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152 S.W.3d 739, 743 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (op. on reh’g);
see also Bryant v. State, No. 2-08-294-CR, 2010 WL 2813494, at *5 (Tex. App.—Fort
Worth July 15, 2010, no pet.) (not designated for publication); Sykora v. State, No. 09-
05-171-CR, 2006 WL 439005, at *4 (Tex. App.—Beaumont Feb. 22, 2006, no pet.)
(mem. op., not designated for publication). Viewing the evidence in the light most
favorable to the trial court’s ruling and considering the totality of the circumstances—
including Velazquez’s being asleep in her parked car, which was partially blocking a
drive-through; her admissions that she had been at a bar and had been drinking; her
watery, bloodshot eyes; the smell of alcohol on her breath; and the SFSTs—we
conclude that the evidence supports the trial court’s conclusion that Officer Kaman
had probable cause to arrest Velazquez for driving while intoxicated.
We overrule Velazquez’s second issue.
VI. Conclusion
Having overruled Velazquez’s two issues, we conclude that the trial court did
not err by denying Velazquez’s suppression motion, and we therefore affirm the trial
court’s judgment.
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/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: February 9, 2023
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