                           NUMBER 13-17-00269-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS,                                                       Appellant,

                                          v.

JOHN STEVEN GOMEZ,                                                         Appellee.


               On appeal from the County Court at Law No. 2
                        of Victoria County, Texas.


                       MEMORANDUM OPINION
            Before Justices Contreras, Longoria, and Hinojosa
               Memorandum Opinion by Justice Longoria

      The State, as appellant, appeals the granting of appellee John Steven Gomez’s

motion to suppress. By four issues, which we construe as two, the State argues that (1)

the standard of review is de novo and (2) the trial court committed reversible error by

granting Gomez’s motion to suppress. We affirm.
                                   I.     BACKGROUND

      On May 16, 2016, Gomez was charged by information with the offense of driving

while intoxicated, a Class B misdemeanor. See TEX. PENAL CODE ANN. § 49.04 (West,

Westlaw through 2017 1st C.S.). Gomez moved to suppress the evidence on the basis

that the officer lacked probable cause to arrest him.

      At a suppression hearing, Victoria police officer Justin Horne testified that, on the

morning of January 1, 2016, at around 7:00 a.m., he observed a vehicle pull into an empty

parking lot. He testified that he noticed the vehicle pulled in beyond the pavement, so

that part of the vehicle was in the grass and part remained in the parking lot. The parking

lot was not directly adjacent to any businesses, though there were businesses and

restaurants in the area. Horne testified that he considered the location of the vehicle and

the way it was parked to be “kind of an odd thing.”

      Upon noticing the vehicle, Horne also pulled into the parking lot to do a “welfare”

check. He did not activate his lights and testified that at the time, he did not intend to

make an arrest. He approached the driver’s side of the vehicle and upon contact with

Gomez, the driver, he noticed the odor of alcohol and the driver confirmed he had

consumed “a couple of beers.” At this point, Horne determined he needed to conduct

further investigation to determine if the driver had been driving while intoxicated, which

led to the arrest of Gomez.

      Horne acknowledged that he did not observe Gomez violate any traffic laws, nor

did he believe at the time he saw the vehicle that any criminal activity was afoot. He was

not able to identify the number of passengers until he approached the vehicle. The driver

never signaled to Horne that he needed assistance or was in distress.



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       The trial court granted Gomez’s motion to suppress and this appeal followed. See

TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West, Westlaw through 2017 1st C.S.)

(permitting State to appeal order in criminal case granting a motion to suppress evidence).

The trial court issued the following findings of fact:

       a.     On January 1, 2016 Victoria Police Department Patrol Officer Justin
              Horne was traveling to the North side of Victoria, Texas to begin his
              patrol shift.

       b.     Officer Horne was traveling north bound at or near the intersection
              of Crestwood Street and Main Street in Victoria, Victoria County,
              Texas when he observed a black Dodge Journey pull into a parking
              lot at approximately 7:00 a.m.

       c.     When parking in the parking lot, the vehicle parked on an unpaved
              portion directly adjacent to a parking lot space.

       d.     The parking lot contains several businesses, one of which is a
              restaurant that serves breakfast. There are also some businesses
              in which the shopping center space has not been completed.

       c.     Officer Horne did not see or observe the vehicle commit a traffic
              offense.

       f.     Officer Horne did not observe any evidence that criminal activity was
              afoot.

       g.     Officer Horne did not observe any level of distress by any individual
              operating or riding in the vehicle.

       h.     Officer Horne did not observe evidence of mechanical distress of the
              vehicle.

       i.     At first, Officer Horne could not determine whether the vehicle
              contained passengers, nor could Officer Horne determine if the
              driver of the vehicle was male or female.

       j.     Officer Horne did not see any evidence that any individual in or
              around the vehicle presented a danger to himself or others.

       k.     Part of Officer Horne’s duties as a peace officer is to assist
              individuals in need of help as well as investigate criminal activity.



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       I.     Officer Horne did not see any indication that any individual needed
              assistance or help, only that the manner in which the vehicle parked
              in the parking lot was odd.

       m.     After the vehicle parked in the parking lot, Officer Horne pulled in
              behind the vehicle.

       n.     Officer Horne observed that the vehicle had a driver and passenger.

       o.     Officer Horne approached the vehicle and requested the
              identification of the driver and a female passenger. Officer Horne
              offered no testimony as to whether he asked any questions related
              to the welfare of the occupants in the vehicle.

       p.     Officer Horne did not relate during the hearing whether he observed
              any distress to any particular individual, nor any need for his
              assistance.

       q.     Following the request for identification, Officer Horne smelled an
              odor of alcohol and began an investigation for the offense of driving
              while intoxicated.

       r.     Following the investigation, Officer Horne arrested the Defendant for
              the offense of [d]riving while intoxicated.

The trial court also issued the following conclusions of law:

       a.     An officer conducts a lawful temporary detention when he has
              reasonable suspicion to believe that an individual is violating the law.
              Ballentine v. State, 71 S. W.3d 763, 768 (Tex. Crim. App. 2002).

       b.     Reasonable suspicion exists if an officer has specific, articulable
              facts, that combined with rational inferences from those facts . . .
              would lead him to reasonably conclude that a particular person
              actually is, has been, or soon will be engaged in criminal activity.
              Garcia v. State, 43 S.W.3d 527,530 (Tex. Crim. App. 2001).

       c.     The Court concludes that Officer Horne’s testimony did not reveal
              that Officer Horne observed the vehicle driven by Defendant commit
              a traffic offense, nor that Defendant was, had been, or soon would
              be engaged in criminal activity.

       d.     The Court concludes that Officer Horne did not testify as to any
              specific, articulable facts, combined with rational inferences from
              those facts that would lead him to reasonably conclude that



                                             4
     Defendant was, had been, or soon would be engaged in criminal
     activity.

e.   Parking in a parking lot is lawful.

f.   To invoke the community caretaking exception, an officer’s primary
     motive must be concern for the individual’s well-being. Corbin v.
     State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002).

g.   When determining whether Officer Horne acted reasonably in
     stopping, seizing, contacting or detaining the Defendant to determine
     if he needed assistance, the Court considered the following non-
     exclusive factors: (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 that offered by the officer; and (4) to what extent the
     individual—if not assisted—presented a danger to himself or others.
     Corbin, 85 S. W.3d at 277.

h.   Here there was no evidence that any distress was exhibited as to
     any individual in the vehicle or to the vehicle itself.

i.   There was no evidence that Defendant required Officer Horne’s
     assistance.

j.   The vehicle pulled safely into a location, a parking lot in which
     legitimate businesses operate, and was off the roadway away from
     any danger.

k.   Officer Horne initially had no information as to whether the Defendant
     was alone or accompanied by passengers who could have assisted
     or aided in the event there was distress.

l.   Officer Horne discovered that there was in fact a driver and
     passenger in the vehicle from which Defendant could have obtained
     assistance if Defendant required any.

m.   The testimony at the hearing did not demonstrate that Officer Horne
     reasonably pursued any investigation to determine whether there
     was any distress being suffered by any particular individual.

n.   Under the circumstances of this case, this Court concludes that, as
     parking in a parking lot is lawful, and there was no other observed
     criminal activity including any traffic violations observed by Officer


                                     5
              Horne prior to his contact with Defendant, there was no reasonable
              suspicion to contact, seize or detain Defendant.

       o.     Further, the Court concludes that Officer Horne did not act
              reasonably in administering or invoking the community caretaking
              function and that his primary motivation was to indulge a curiosity he
              viewed as ‘‘odd” rather than to render assistance to any occupant in
              the vehicle. Officer Horne did not reveal any facts that he observed
              any indication of distress or the need for his assistance prior to his
              contact with Defendant. During his initial contact he observed that
              Defendant was not alone in the vehicle. Officer Horne did not
              establish that he inquired into the welfare of any of the occupants of
              the vehicle.

       p.     It was unreasonable to conclude Defendant was experiencing
              distress, mechanical, health related, or otherwise. Officer Horne did
              not reveal any observations that would lead him to make such a
              conclusion. Further, Officer Horne’s testimony and the facts
              establish that Defendant had access to assistance, in the event any
              was required as he was within in the city limits of Victoria, Victoria
              County, Texas, seizure of Defendant was at or near 7:00 a.m.,
              Defendant was parked in a parking lot near businesses, and was not
              alone.

Upon the State’s motion, we abated the appeal on July 14, 2017, and remanded to the

trial court for supplemental findings of fact and conclusions of law to address additional

potential case-dispositive factual matters. See State v. Cullen, 195 S.W.3d 696, 699

(Tex. Crim. App. 2006). The trial court later issued the following supplemental findings of

fact and conclusions of law:

       1.     The Trial Court believes and finds that Officer Horne did not turn on
              his overhead lights when he approached Appellee’s vehicle.

       2.     The Trial Court believes and finds that the parking lot where Officer
              Horne made contact with the Appellee was a public place and
              accessible to the public.

       3.     The Trial Court cannot find any relevant information in the record to
              support a finding that Officer Horne told the Appellee or the
              Appellee’s passenger that they were not free to leave prior to Officer
              Horne smelling alcohol on the Appellee.


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       4.     The Trial Court cannot find any relevant information in the record to
              support a finding that Officer Horne issued any orders to the Appellee
              or the Appellee’s passenger prior to smelling alcohol on the Appellee.

       5.     The Trial Court cannot find any relevant information in the record to
              support a finding that Officer Horne drew his weapon on the Appellee
              or the appellee’s passenger at any time during the encounter
              between the officer and the Appellee.

       6.     The Trial Court cannot find any relevant information in the record to
              support a finding that Officer Horne ordered the Appellee and/or the
              Appellee’s passenger to exit their vehicle at any time prior to Officer
              Horne smelling alcohol on the Appellee.

       7.     The Trial Court cannot find any relevant information in the record to
              support a finding that Officer Horne engaged in any conduct other
              than asking the Appellee and his passenger questions when the
              officer approached their vehicle.

We reinstated the appeal on August 16, 2017.

                                     II.    DISCUSSION

       The State claims the trial court erred in granting Gomez’s motion to suppress.

Specifically, the State argues Gomez’s detention was justified because Officer Horne’s

initial interaction with Gomez was a consensual interaction. Because it was not a seizure,

the State argues, Officer Horne’s initial contact with Gomez was lawful because he was

not required to have reasonable suspicion, probable cause, or any other justification to

make contact with Gomez.

       Gomez contends that the State waived the consensual encounter argument by

failing to raise it with the trial court below. See TEX. R. APP. P. 33.1(a)(1)(A) (to present a

complaint for appellate review, the record must show that the complaint was made with

“sufficient specificity to make the trial court aware of the complaint, unless the specific

grounds were apparent from the context”).

1.     Standard of Review

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         We review a trial court's decision on a motion to suppress for an abuse of

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Under our abuse

of discretion analysis, we use a bifurcated standard. State v. Ross, 32 S.W.3d 853, 856

(Tex. Crim. App. 2000) (en banc) (citing Guzman v. State, 955 S.W.2d 85, 88 (Tex. Crim.

App. 1997) (en banc)); see also Urbina v. State, No. 13–08–00562–CR, 2010 WL

3279390, at *1 (Tex. App.—Corpus Christi Aug. 19, 2010, pet. ref'd) (mem. op., not

designated for publication). We give almost total deference to the trial court's findings of

historical fact that are supported by the record and to mixed questions of law and fact that

turn on an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673

(Tex. Crim. App. 2007) (citing Guzman, 995 S.W.2d at 89). We “review de novo ‘mixed

questions of law and fact’ that do not depend upon credibility and demeanor.” Id. (quoting

Montanez v. State, 195 S.W.3d 101, 107 (Tex. Crim. App. 2006)); Guzman, 995 S.W.2d

at 89.

         “When a trial court makes explicit fact findings, the appellate court determines

whether the evidence (viewed in the light most favorable to the trial court's ruling) supports

these fact findings.”   State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

“Similarly, regardless of whether the trial court has made express conclusions of law, we

uphold the trial court's ruling under any theory supported by the facts because an

appellate court reviews conclusions of law de novo.” Id. Under our de novo review, we

are not required to defer to a trial court's particular theory. Id. This “rule holds true even

if the trial court gave the wrong reason for its ruling.” Armendariz v. State, 123 S.W.3d

401, 403 (Tex. Crim. App. 2003); see also State v. Rodriguez, 13-13-00335-CR, 2015

WL 3799353, at *3 (Tex. App.—Corpus Christi June 18, 2015, pet. ref'd).



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2.     Applicable Law

       Preservation of error is a systemic requirement on appeal. Ford v. State, 305

S.W.3d 530, 532 (Tex. Crim. App. 2009). To preserve error, the complaining party must

let the trial court know what he wants and why he thinks he is entitled to it, and do so

clearly enough for the court to understand and at a time when the trial court is in a position

to do something about it. Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App.

2014); Clarke v. State, 270 S.W.3d 573, 580 (Tex. Crim. App. 2008).

       As this Court stated in State v. Mercado, under [Texas Rule of Appellate
       Procedure 33.1], the issue is not whether the appealing party is the State or
       the defendant or whether the trial court’s ruling is legally “correct” in every
       sense, but whether the complaining party on appeal brought to the trial
       court’s attention the very complaint that party is now making on appeal.
       This “raise it or waive it” forfeiture rule applies equally to goose and gander,
       State and defendant.

Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (citing State v. Mercado,

972 S.W.2d 75, 78 (Tex. Crim. App. 1998)).

       We will uphold the trial court's ruling under any applicable theory of law supported

by the facts of the case whether we infer the fact findings or consider express findings.

Alford v. State, 400 S.W.3d 924, 929 (Tex.Crim.App.2013). But a “theory of law” is

applicable to the case only if the theory was presented at trial in such a manner that the

appellant was fairly called upon to present evidence on the issue. State v. Copeland, 501

S.W.3d 610, 612–13 (Tex. Crim. App. 2016).

3.     Analysis

       By their first issue, the State argues that the standard of review in this case is de

novo, arguing that the facts are not in dispute, only a question of law. We agree,

therefore, the State’s first issue is sustained.



                                               9
       Gomez argues that, at the trial court level, the State only presented an argument

that Officer Horne’s actions were justified under the community caretaking function, not

as a consensual encounter. We agree.

       Gomez argued at the suppression hearing that the community caretaking function

was not applicable in this case, and at the hearing, the State asked Officer Horne pointed

questions relating to his approach of Gomez’s vehicle and his encounter with Gomez,

including whether or not he activated his patrol vehicle’s lights and whether he performed

an investigative detention or had intent to arrest Gomez. When given the opportunity by

the trial court to present case law supporting its arguments in contrast to Gomez’s case

relating to the caretaking function for the trial court’s consideration, the State responded:

“The cases—the cases are all relatively the same. I mean, depending on the facts the

Court overruled—the Court ruled, but it’s all generally based on the facts, the factors are

all the same.” The trial court then granted Gomez’s motion to suppress, stating clearly

that the factors of the caretaking function were not met. Further, it is clear from the trial

court’s extensive findings of fact and conclusions of law that it based its ruling on the

argument presented, the community caretaking function of the officer; meaning the

consensual encounter argument was not brought to the attention of the trial court.

       At the suppression hearing, the State never argued that this was a consensual

encounter between the officer and Gomez as it now argues on appeal. Thus, to the extent

that the State now makes this argument, we conclude that it does not comport with its

argument to the trial court. See Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996)

(explaining that the grounds raised on appeal must comport with the objections made

before the trial court). Moreover, we cannot reverse the trial court’s judgment on grounds



                                             10
not presented to it. See State v. Rhinehart, 333 S.W.3d 154, 162 (Tex. Crim. App. 2011)

(stating that “ordinary rules of procedural default” apply to “losing party” in trial court);

Hailey v. State, 87 S.W.3d 118, 121–22 (Tex. Crim. App. 2002) (“It is well-settled that . .

. it violates ordinary notions of procedural default for a Court of Appeals to reverse a trial

court’s decision on a legal theory not presented to the trial court by the complaining

party.”) (quotations omitted); Mercado, 972 S.W.2d at 78 (“[l]n cases in which the State

is the party appealing, the basic principle of appellate jurisprudence that points not argued

at trial are deemed to be waived applies equally to the State and the defense.”); see

Martinez, 91 S.W.3d at 336 (noting that we may not reverse a trial court's ruling on any

theory or basis that might have been applicable to the case but was not raised); see also

Rodriguez, No. 13-13-00335-CR, 2015 WL 3799353, at *8 (finding that the State’s

argument at the appellate level did not comport with its argument to the trial court, and

therefore, could not be considered for the first time on appeal). The trial court’s ruling

was specifically limited to the facts and legal arguments presented to it. Thus, the trial

court cannot be held to have abused its discretion in ruling on the only theory of law

presented to it. Mercado, 972 S.W.2d at 78.

       We overrule the State’s second, third, and fourth issues.

                                    III.    CONCLUSION

       We affirm the trial court’s judgment.

                                                                 NORA L. LONGORIA
                                                                 Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
9th day of August, 2018.

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