Gibson v. State , 253 S.W.3d 709 ( 2008 )

253 S.W.3d 709 (2007)

Charles Ray GIBSON, Jr., Appellant,
v.
The STATE of Texas, Appellee.

No. 07-06-0099-CR.

Court of Appeals of Texas, Amarillo.

October 9, 2007. Rehearing Overruled November 19, 2007. Discretionary Review Refused April 9, 2008.

Melissa Jo McNamara, Lubbock, TX, for Appellant.

Ramon Gallegos, Jason Bujnosek, Brownfield, TX, for Appellee.

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION

MACKEY K. HANCOCK, Justice.

Appellant, Charles Ray Gibson, Jr., appeals his conviction for possession of a controlled substance (cocaine) and sentence of 99 years incarceration in the Institutional Division of the Texas Department of Criminal Justice. We reverse.

Background

On October 1, 2004 at around 11:15 p.m., Rose Waitman called the Brownfield Police Department out of concern that her daughter (C.W.), who was 15 years old at the time, had not returned home from a high school football game. Officer Carrillo was dispatched to the Waitman residence. Rose told Carrillo that C.W. may be in a blue 1989 "Pontiac Oldsmobile (sic)" and she gave him the license plate number of the vehicle. Rose requested that Carrillo find her daughter and bring her home.

At approximately 11:45 p.m., Carrillo spotted a vehicle that matched the description of the vehicle given by Waitman. Carrillo could not identify its occupants or even how many occupants were in the vehicle. Carrillo pulled behind the vehicle, activated his emergency lights, and followed the vehicle to effectuate the stop. At no time after Carrillo spotted the vehicle did he observe the driver violate any traffic laws. After the vehicle stopped, Carrillo spoke with the driver, who he identified as appellant, told him that he had been stopped "for the juvenile," and asked appellant to exit the vehicle. After appellant exited the vehicle, Carrillo asked him for his driver's license and proof of insurance. Another officer, who was assisting Carrillo, removed C.W. from the vehicle. Appellant told Carrillo that he did not have a license or proof of insurance. Carrillo ran a license inquiry through dispatch and was able to verify that appellant did not have a valid driver's license. As a result, Carrillo placed appellant under arrest. Following appellant's arrest, the vehicle was searched incident to the arrest. Cocaine and marijuana were discovered in or next to the vehicle.

Appellant filed a pre-trial Motion to Suppress the drugs contending that they were discovered as a result of an illegal search and seizure. A hearing was held on the motion with Carrillo being the only testifying witness. Carrillo testified that he was aware that appellant did not have a driver's license based on a past encounter with him, however, he expressly stated that he did not pull the vehicle over for this reason. Rather, Carrillo testified that he stopped the vehicle because it matched the description given by C.W.'s mother, who was concerned about her daughter's welfare. The trial court denied the Motion to Suppress the evidence.

At trial, C.W. testified regarding the events of October 1, 2004. She testified that she and appellant left the football game before it ended. Appellant stopped by a house for a brief period while C.W. waited in the car. Appellant took C.W. back to the football game, but the game had ended and C.W. could not find the person that was to give her a ride home. As a result, appellant agreed to take C.W. home. As appellant was attempting to give C.W. a ride home, Carrillo pulled appellant over. As Carrillo approached the vehicle, appellant pulled drugs out of his pocket, handed them to C.W., and told her to "chunk them out the window." However, because another officer approached the passenger's side window at the same time that Carrillo approached the driver's side, C.W. testified that she laid the drugs beside the seat.

Also, at trial, C.W.'s mother, Rose, testified that she called the police to look for her daughter because she was "concerned" when she did not come home with the people that she went to the game with. Rose had been informed that C.W. was with appellant, but she "didn't want her in the car with him."

Carrillo testified that he went and spoke with Rose and that she was very concerned about her daughter. He testified that Rose told him that C.W. had left the football game around 10:20 with appellant. Carrillo spotted appellant's vehicle driving in the direction of C.W.'s home at 11:48. After Carrillo stopped the vehicle, he testified that he approached the driver, identified himself, and advised the driver that he was being stopped "for the juvenile." At the same time, another officer made contact with C.W. on the passenger's side of the vehicle. Carrillo asked appellant to step out of the vehicle and for his driver's license and proof of insurance. When appellant failed to produce these documents, Carrillo called in a driver's license check that indicated that appellant's driver's license had expired in 1993. As a result, Carrillo arrested appellant. After appellant was placed under arrest, his vehicle was searched and cocaine and marijuana were found on the floorboard of the front passenger's area.

At the close of evidence, the court took up the issue of the jury charge. The court's proposed charge included an instruction that an accomplice witness's testimony must be corroborated. The State objected to the inclusion of this instruction on the basis that the evidence was insufficient to establish that C.W. was an accomplice, but the court overruled the objection. Appellant then objected to the charge not including an instruction under Texas Code of Criminal Procedure article 38.23, which was overruled by the court. See TEX.CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2005).^[1]

The jury returned a verdict finding appellant guilty of possession of a controlled substance, cocaine, in an amount more than four grams but less than 200 grams. The indictment included enhancement allegations of two prior felony convictions to which appellant pled true. The jury heard the punishment evidence and assessed a sentence of incarceration in the Institutional Division of the Texas Department of Criminal Justice for a period of 99 years. Appellant filed a Motion for New Trial, which was overruled by operation of law.

Appellant presents four issues on appeal. Appellant's first issue contends that the trial court erred in denying appellant's Motion to Suppress. By his second issue, appellant contends that the evidence was insufficient to corroborate the testimony of C.W., who appellant contends was an accomplice. Appellant's third issue contends that the trial court erred in failing to include an instruction under article 38.23 in the jury charge. Finally, by his fourth issue, appellant contends that the evidence was legally insufficient to support his conviction. We will address only appellant's first and fourth issues. See TEX.R.APP. P. 47.1.

Legality of the Stop

By his first issue, appellant contends that the trial court erred in denying his Motion to Suppress the cocaine found by the police when they searched his vehicle incident to arrest because the initial stop of his vehicle was illegal in that it was not supported by reasonable suspicion. The State contends that the initial stop of appellant was justified by the community caretaking function of the officers.

When reviewing a motion to suppress, we are to give great deference to a trial court's determination of historical facts and on mixed questions of law and fact that require an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). However, mixed questions of law and fact not turning on an evaluation of credibility and demeanor are reviewed de novo. Id. See also Villarreal v. State, 935 S.W.2d 134, 139 (Tex.Crim.App.1996) (McCormick, P.J., concurring) (if trial court "is not in appreciably better position" than the appellate court in deciding an issue, the appellate court may independently determine the issue while affording deference to the trial court's finding on subsidiary factual questions). Where the facts relating to a motion to suppress are undisputed and the trial court's ruling does not turn on the credibility of the witnesses, an appellate court reviews an order overruling the motion de novo. Johnson v. State, 146 S.W.3d 719, 721 (Tex.App.-Texarkana 2004, no pet.).

While not all encounters with the police implicate the Fourth Amendment's protection against unreasonable seizures, stopping an automobile and detaining its occupants constitutes a seizure, even though the purpose of the seizure is limited and the resulting detention brief. Del. v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); Corbin v. State, 85 S.W.3d 272, 276 (Tex.Crim.App.2002). Under the Fourth Amendment, a seizure must be objectively reasonable in light of the particular circumstances of the case. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Corbin, 85 S.W.3d at 276. Assessing the reasonableness of a search or seizure requires a balancing of the public interest and the individual's right to be free from arbitrary interference by law enforcement. Prouse, 440 U.S. at 654, 99 S. Ct. 1391; Corbin, 85 S.W.3d at 276. A seizure based on reasonable suspicion or probable cause will generally be reasonable. Whren v. United States, 517 U.S. 806, 818, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996); Corbin, 85 S.W.3d at 276. However, 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 his community caretaking function. Corbin, 85 S.W.3d at 276; Wright v. State, 7 S.W.3d 148, 151-52 (Tex.Crim. App.1999). For a seizure to be justified by the community caretaking function, it must have been primarily motivated by the need to assist and the officer's belief that the need exists must have been reasonable. See Corbin, 85 S.W.3d at 277.

As part of a police officer's duty to "serve and protect," 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." Wright, 7 S.W.3d at 151. However, the community caretaking function is "totally divorced" from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Corbin, 85 S.W.3d at 276-77. Thus, for the exercise of the community caretaking function to justify a seizure, its primary purpose must be for the welfare of the individual in need of assistance. Id. at 277.

If it is determined that a seizure was primarily motivated to fulfill the community caretaking function, it must then be determined whether the officer's belief that the person needed help was reasonable. Corbin, 85 S.W.3d at 277; Wright, 7 S.W.3d at 151-52. In evaluating the reasonableness of the officer's belief that help was needed, courts may look to four non-exclusive factors (hereafter, "the Wright factors"): (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether the individual was alone and/or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others. Id. In reviewing these factors, the nature and level of distress exhibited is entitled to the greatest weight. Corbin, 85 S.W.3d at 277.

In the present case, it is undisputed that Carrillo lacked reasonable suspicion or probable cause to stop appellant's vehicle. Carrillo provided no testimony that he was aware of or suspected that appellant was involved in the commission of a crime at the time Carrillo stopped his vehicle. Further, Carrillo specifically testified that he did not observe appellant violate any traffic laws prior to the stop. Therefore, appellant contends that the initial stop was illegal and that any evidence discovered as a result of the stop was tainted by the illegality of the stop and the trial court erred in allowing this evidence over appellant's objection.

The State, however, contends that the stop of appellant's vehicle was legal because the stop was effectuated in furtherance of the officer's community caretaking function.^[2] The record reflects that C.W.'s mother contacted the police when C.W. failed to return home from the football game at the expected time. Carrillo testified that his "biggest concern" in stopping appellant's vehicle was "[t]he child's safety being that she was a juvenile and he was in his 30's (sic)." However, Carrillo further testified that he was aware that appellant did not have a valid driver's license, based on prior encounters with appellant. Therefore, we conclude that this testimony raised a fact question as to the primary motivation for the stop. This fact issue was impliedly resolved by the trial court in favor of the valid exercise of the community caretaking function. In reviewing a trial court's ruling on a motion to suppress, we may not sit as a second trier of fact determining the credibility and demeanor of witnesses. See State v. Ross, 32 S.W.3d 853, 858 (Tex.Crim.App.2000). Thus, we must accept the trial court's implied determination that Carrillo effectuated the stop of appellant based on a primary motivation to fulfill his community caretaking function.^[3]

For a seizure to be justified as an exercise of the community caretaking function, an officer's subjective belief that the seizure is necessary to render assistance to a person in need must be shown to have been objectively reasonable. Id. In assessing the reasonableness of the officer's belief, we look to the four Wright factors.

The first, and most important, Wright factor is the nature and level of the distress exhibited by the individual. Id. In the present case, Rose testified that she was "concerned" about her daughter not returning home from the football game at the designated time and in the designated manner. Rose also testified that she told the police that she did not want her daughter in a car with appellant, but she provided no further elaboration as to why she did not want her daughter with appellant. The only evidence of the nature and level of C.W.'s distress at the time that appellant was stopped was that C.W. was no more than one and a half hours late and that, for some unstated reason, Rose did not want C.W. in a vehicle with appellant. We conclude that this evidence is insufficient to establish that C.W. exhibited a nature and level of distress sufficient to independently justify the stop of appellant as an objectively reasonable exercise of the community caretaking function.

However, while the first Wright factor is entitled to the greatest weight, it is not always dispositive. Id. The three remaining factors help to give more definition to the first factor and may reveal that a particular level of distress is more or less serious depending on the presence or absence of these factors. Id. In looking at the second factor, the location of the individual, the record reflects that appellant was stopped a couple of houses before he reached C.W.'s home and that Carrillo was aware of the proximity of the stop to C.W.'s home as a result of his having recently spoken with Rose at the house. The proximity of the stop to C.W.'s home and the reasonable inference that appellant was in the process of taking C.W. home mitigates against C.W. being in sufficient distress to justify the stop. The third factor asks whether the individual in distress was alone and/or had access to assistance other than that offered by the officer. As to the initial stop, Carrillo testified that he could not identify any individuals in appellant's vehicle nor could he identify the number of individuals in the vehicle. Therefore, this factor could not support the initial stop. Finally, the fourth factor, the extent to which the individual, if not assisted, posed a danger to himself or others, weighs against the stop. The record provides no evidence of how C.W. was placed in danger by getting a ride home from appellant. To the extent that the fourth factor is to be applied to appellant, there is no evidence that appellant was driving erratically or in a manner that would pose a danger to himself or to others on the roadways. Also, there was no evidence that appellant posed a threat to C.W., rather, the only evidence was that Rose did not want C.W. with appellant.

Considering the Wright factors in light of the totality of the circumstances, we conclude that the evidence failed to establish that the stop of appellant's vehicle was an objectively reasonable exercise of the community caretaking function. As the State does not dispute that the stop was not supported by probable cause or reasonable suspicion and because we conclude that the stop was not shown to have been a valid exercise of the community caretaking function, we conclude that the stop was illegal and, therefore, the cocaine which was subsequently found was the fruit of the illegal stop. See Crosby v. State, 750 S.W.2d 768, 780 (Tex.Crim.App.1987). Therefore, we conclude that the trial court erred in denying appellant's Motion to Suppress this evidence.

Harm

Having found error in the denial of appellant's Motion to Suppress, we must also conduct a harm analysis to determine whether the error calls for reversal of the judgment. TEX.R.APP. P. 44.2. The harm analysis for the erroneous admission of evidence obtained in violation of the Fourth Amendment is Rule 44.2(a)'s constitutional standard. Hernandez v. State, 60 S.W.3d 106, 108 (Tex.Crim.App. 2001). Accordingly, we must reverse the trial court's judgment, unless we determine beyond a reasonable doubt that the error did not contribute to appellant's conviction or punishment. TEX.R.APP. P. 44.2(a). The question is whether the trial court's denial of Appellant's Motion to Suppress and its admission of the evidence were harmless beyond a reasonable doubt. See Williams v. State, 958 S.W.2d 186, 194 (Tex.Crim.App.1997). In applying the "harmless error" test, we ask whether there is a "reasonable possibility" that the error might have contributed to the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S. Ct. 1466, 143 L. Ed. 2d 550 (1999).

In the present case, the evidence obtained as a result of the illegal stop formed the basis of appellant's conviction. After carefully reviewing the record and performing the required harm analysis under Texas Rule of Appellate Procedure 44.2(a), we are unable to determine beyond a reasonable doubt that the erroneous admission of the cocaine did not contribute to appellant's conviction. Therefore, because the trial court's error in denying appellant's Motion to Suppress was harmful to appellant, we will reverse the judgment.

Legal Sufficiency

By his fourth issue, appellant contends that the evidence was legally insufficient to support his conviction. Appellant's argument concerning the sufficiency of the evidence is that there were insufficient links to establish that appellant possessed the narcotics if C.W.'s testimony had been properly excluded as insufficiently corroborated accomplice testimony.

However, even were we to determine that C.W. was an accomplice and her testimony was not sufficiently corroborated, an issue we need not address in this opinion due to our resolution of appellant's challenge of the trial court's denial of his Motion to Suppress, see TEX.R.APP. P. 47.1, we would have to consider her testimony in determining whether the evidence was legally sufficient. See Green v. State, 893 S.W.2d 536, 540 (Tex.Crim.App.1995) (when sufficiency of evidence is challenged following a jury trial, appellate courts consider all of the evidence, whether properly or improperly admitted). While not expressly challenged by his legal sufficiency issue, we must also consider the cocaine that we have previously concluded was improperly admitted in assessing the legal sufficiency of the evidence. See id.

Considering all of the evidence, whether properly or improperly admitted, in the light most favorable to the verdict, we conclude that the evidence was sufficient to establish that appellant intentionally and knowingly possessed a controlled substance, cocaine, in an amount of four grams or more, but less than 200 grams. We overrule appellant's legal sufficiency challenge.

Conclusion

Having determined that the trial court committed reversible error in denying appellant's Motion to Suppress, we reverse the trial court's judgment and remand for further proceedings consistent with this opinion.

PIRTLE, J., concurring.

PATRICK A. PIRTLE, Justice, concurring.

I agree with the majority's conclusion (footnote 3) that the trial court erred in failing to submit an instruction to the jury in accordance with article 38.23 of the Texas Code of Criminal Procedure; and, therefore, to the extent that the majority concludes that the judgment should be reversed, I concur. I respectfully disagree, however, with the conclusion that the trial court erred in denying Appellant's Motion to Suppress. Considering the totality of the evidence, I would conclude that Officer Carrillo was justified in stopping Appellant based upon a reasonable exercise of the community caretaking function.

The temporary detention of an individual during the stop of a motor vehicle by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of that person within the meaning of the Fourth Amendment, Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), and both the Fourth Amendment to the United States Constitution and article 1, section 9 of the Texas Constitution require that the seizure be reasonable. The reasonableness of a given seizure depends upon a balance between the public interests and the individual's right to personal security free from arbitrary interference. Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 2640, 61 L.Ed.2d 357(1979). The constitutionality of a seizure involves balancing three factors: (1) the gravity of the public interest, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty. Id. 443 U.S. at 51-52, 99 S. Ct. 2637. As a general principle, the decision to temporarily stop a motor vehicle is constitutionally reasonable where the police have probable cause to believe that the stop is necessary to locate and secure a missing child under the "community caretaking" exception to the Fourth Amendment.

Community Caretaking Function

The term "community caretaking function" was first used by the Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973). In that case, a law enforcement officer made a warrantless search of a vehicle that had been involved in an accident to determine if his service revolver had been accidentally dropped in the vehicle during the course of an accident investigation. In finding that the search was constitutionally reasonable, the Court recognized that police officers frequently investigate accidents in which there is no claim of criminal activity and concluded that a search which was totally divorced from the detection, investigation, or acquisition of evidence relating to criminal activity could be a permissible community caretaking function. Relying on Cady the Texas Court of Criminal Appeals recognized the community caretaking function as an exception to the Fourth Amendment's warrant requirement. Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim.App.1999). The application of that exception is, however, to be narrowly applied, given the totality of the circumstances. Laney v. State, 117 S.W.3d 854, 858-59 (Tex.Crim.App.2003). In Wright the Court set forth four factors to consider in determining whether or not the police activity was constitutionally permissible.^[1]

In applying the first Wright factor, the majority focuses upon the nature and level of distress exhibited by C.W. in determining whether the stop of Appellant was justified as an objective exercise of the community caretaking function.^[2] C.W.'s mother and legal guardian, Rose Waitman, had reported C.W., a minor child, as missing and as a possible run-away. At the time and under the circumstances surrounding the stop, the officer knew that the missing person was a 15 year old female, that she was suspected to be in the company of a 30 year old man,^[3] and that she was suspected to be in a specifically identified motor vehicle. Under those circumstances, Officer Carrillo's failure to stop that specific vehicle and investigate the whereabouts and condition of the juvenile in question would have been a dereliction of his duty to "serve and protect" the public.

In its analysis of the second factor, the majority concludes that the proximity of the juvenile's residence to the location of the stop militates against the stop being reasonable. In doing so, the majority fails to also consider the fact that Officer Carrillo had attempted to initiate the stop several blocks from the residence and that another patrol vehicle had even "pulled to the side to see if we could slow the vehicle" before they were able to effectuate the stop. Furthermore, the vehicle's proximity to C.W.'s residence is only as relevant as Officer Carrillo's knowledge that Appellant was intent on delivering the child to her residence. Officer Carrillo specifically testified that he was not sure of Appellant's intentions and the trial court was in the position to judge the weight and credibility of that testimony. Just as reasonably, it could be argued that the second Wright factor, the location of the person in perceived danger, was the very purpose of the stop, i.e. determination of the location of the minor child. The majority considers the third factor a non-factor because Officer Carrillo could not identify the individuals in the vehicle. Again, the purpose of the stop was to determine the safety of a minor child and the circumstances of the stop in question support the trial court's implicit determination that the stop was reasonable and necessary to determine the location, safety and welfare of the child. In its analysis of the fourth factor, the majority concludes that the record provides no evidence that C.W. was in danger. When the welfare of a child is at stake, the perception of danger is just as real and just as important as the actual danger to which the child is exposed. Rose Waitman perceived C.W. to be in danger and she sought the assistance of law enforcement to protect her child.

Based upon my analysis of the four Wright factors, I would reach a conclusion contrary to the conclusion reached by the majority in that I would find that the evidence establishes that Officer Carrillo had probable cause to believe that a missing child would be located in the specific vehicle stopped and that the stop of Appellant's vehicle was an objectively reasonable exercise of the community caretaking function and, therefore, constitutionally permissible.

Finally, although I believe that the stop here was permissible under the community caretaking exception discussed in Cady and Wright, it could be argued that the information available to Officer Carrillo might well have justified a brief investigatory detention based upon reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Applying the factors from Brown, (1) the public concern served was the safety and welfare of a minor child, (2) the brief investigatory stop advanced that concern by establishing or eliminating whether the missing child was in a specific vehicle, and (3) the severity of the interference was minimal. Officer Carrillo was not stopping every citizen on the streets. Instead, he had probable cause to believe that this specific vehicle might reasonably contain the missing minor child. In a world of increasing awareness and sensitivity to crimes against children, and in a society where "Amber Alert" laws have been enacted to assist law enforcement in the recovery of missing children,^[4] the limited intrusion of a brief traffic stop under circumstances like those present in this case cannot easily be seen as unlawful. Accordingly, I would find that the trial court did not err in denying Appellant's Motion to Suppress.

NOTES

[1] Further reference to provisions of the Texas Code of Criminal Procedure will be by reference to "article ___."

[2] In analysis of the trial court's ruling on the Motion to Suppress, we will assume, without deciding, that the community caretaking function justifies a seizure of an individual other than the individual believed to be in need of assistance. But see Wright, 7 S.W.3d at 151-52 (may stop and assist the individual exhibiting distress and believed to be in need of assistance).

[3] While Carrillo specifically testified that he did not stop appellant's vehicle based on his knowledge that appellant did not have a driver's license, we agree with appellant that, at trial, this testimony was sufficient to raise a fact question as to the true motivation for the stop. Therefore, we agree with appellant's third issue that the trial court erred in failing to submit an instruction in the jury charge in accordance with article 38.23. See Murphy v. State, 640 S.W.2d 297, 299 (Tex.Crim.App. 1982) (jury instruction required when evidence raises a fact question regarding the legality of the search or seizure). However, because we conclude that the trial court erred in denying appellant's Motion to Suppress, the trial court's erroneous failure to instruct the jury in accordance with article 38.23 is rendered moot.

[1] The factors set forth in Wright are as follows: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance independent of the assistance offered by the officer; and (4) to what extent the individual, if not assisted, would present a danger to himself or others. Id. at 152.

[2] In its analysis of the trial court's ruling on the Motion to Suppress, the majority assumes, without deciding, that the community caretaking function justifies the seizure of an individual other than the individual believed to be in need of assistance. To the extent that the majority opinion casts doubt on this assumption, I would specifically hold that objective application of the community caretaking function makes no distinction between the individual detained and the individual in distress so long as the detention is incident to and a necessary part of the officer's reasonable exercise of that function. In this case, the detention of Appellant was incident to and a necessary part of Officer Carrillo's attempt to respond to C.W.'s mother's request for public assistance for the perceived safety of the minor child.

[3] Officer Carrillo testified that he had previous encounters with Appellant. Although there is no direct testimony that at the time of the original stop, Officer Carrillo had knowledge of Appellant's prior felony record, we do know that he was aware of the fact that Appellant did not have a driver's license and it is reasonable to assume that Appellant's felony record may have been made known to Officer Carrillo.

[4] Texas Gov't Code § 411.351 et seq. (Vernon 2003).