Opinion
No. 05-15-00959-CR
07-14-2016
BARRY LYNN MCCURTAIN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 199th Judicial District Court Collin County, Texas
Trial Court Cause No. 199-82933-2014
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Evans, and Justice Stoddart
Opinion by Justice Evans
Barry Lynn McCurtain appeals his conviction for driving while intoxicated which was enhanced to a third-degree felony by two prior DWI convictions. In a single issue, appellant contends the trial court erred in denying his motion to suppress evidence obtained during a traffic stop. We conclude the evidence was properly admitted and affirm the trial court's judgment.
BACKGROUND
The relevant facts are undisputed. On September 4, 2014, at approximately 9:30 p.m., Officer Jeremy Petty was driving in the center lane of a three lane road in Frisco, Texas. In front of him and to his right was a Honda Civic following a pick-up truck. Officer Petty testified it was dark outside and traffic was light. According to Officer Petty, the Honda would "drive up really close" to the back of the pick-up truck then back away. The Honda also repeatedly flashed its high-beam lights at the rear of the truck.
After following the vehicles for several minutes, Officer Petty pulled the Honda over for failing to maintain an "assured clear distance" and for activating the car's high beams within 300 feet of the rear of another vehicle. Officer Petty testified that appellant was the driver of the Honda and, when he told appellant why he had been pulled over, appellant responded "I was just jacking with my buddy." Appellant was subsequently charged with driving while intoxicated.
Appellant moved to suppress the evidence obtained during the traffic stop on the ground that the stop was made without probable cause. In response, the state argued Officer Petty had reasonable suspicion to stop appellant based on his belief that appellant had violated both section 545.062 of the Texas Transportation Code, which regulates following distance, and section 547.333, which regulates the use of multiple-beam lighting equipment on vehicles. See TEX. TRANSP. CODE ANN. §§ 545.062 & 547.333 (West 2011). Evidence obtained as a result of the stop gave the officer probable cause to arrest appellant. After an evidentiary hearing, the trial court concluded appellant did not violate section 545.062 by failing to maintain a proper distance, but violated section 547.333 by flashing his high beams. Accordingly, the court denied appellant's motion to suppress. Appellant was convicted of the offense charged and now brings this appeal challenging the trial court's denial of his suppression motion.
ANALYSIS
We review a trial court's denial of a motion to suppress under a bifurcated standard of review. See Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We review the trial court's factual findings for an abuse of discretion, but review the court's application of law to the facts de novo. Id. We will sustain the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Id.
A temporary detention, as opposed to an arrest, may be justified on less than probable cause if an officer reasonably suspects criminal activity has occurred or is occurring based on specific articulable facts. See Fernandez v. State, 306 S.W.3d 354, 357 (Tex. App.—Fort Worth 2010, no pet.). It is well settled that a traffic violation committed in an officer's presence authorizes an initial stop. Id. It is not necessary that an offense actually have been committed. It is sufficient if the officer reasonably believes a violation is in progress. Id. Furthermore, a traffic stop based on an officer's mistaken understanding of the law of the offense, so long as that mistake was objectively reasonable, is valid. See Heien v. N. Carolina, 135 S. Ct. 530, 539 (2014).
Appellant contends the traffic stop that preceded his arrest was invalid because he did not violate section 547.333 of the transportation code. See TEX. TRANSP. CODE ANN. § 547.333. Section 547.333(c)(2) states that,
[a] person who operates a vehicle on a roadway or shoulder shall select a distribution of light or composite beam that is aimed and emits light sufficient to reveal a person or vehicle at a safe distance ahead of the vehicle, except that . . . an operator approaching a vehicle from the rear within 300 feet may not select the uppermost distribution of light.Appellant argues his action of flashing his high beams does not fall within the scope of the term "select the uppermost distribution of light" and suggests that only the act of permanently selecting the highest beams is prohibited. In support of this argument, appellant cites a variety of cases in which a driver flashed a vehicle's headlamps as a signal to others. See e.g., Chubb v. State, 821 S.W.2d 298, 300 (Tex. App.—Corpus Christi 1991, pet. ref'd) (officer "flicked her high beams" at car approaching with high beam headlights on). While these cases may show that the conduct of flashing a vehicle's lights is not unusual, nothing in the opinions cited stands for the proposition that the act of flashing headlamps does not violate section 547.333(c)(2).
The State argues that the statute does not require a vehicle's high beams to be permanently or continuously selected to constitute an offense. Section 547.333 contains no definition of the word "select." The general definition of the word does not contain a temporal element. See WEBSTER'S THIRD NEW INT'L DICTIONARY, 2058 (1993) (select: to choose from a number or group). However, we need not decide this issue because we conclude that, at the very least, Officer Petty's belief that appellant's conduct violated the statute was reasonable. See Heien, 135 S. Ct. at 540. There is no dispute that appellant briefly engaged his high beams within three hundred feet of the rear of another vehicle. Absent a definition or case law clearly indicating that the term "select" as used in section 547.333(c)(2) is limited to the permanent selection of high beams, Officer Petty's belief that appellant's conduct violated the statute was objectively reasonable. Because Officer Petty reasonably believed he witnessed a traffic violation, his stop of appellant's vehicle was valid and the trial court properly denied his motion to suppress. See Heien, 135 S. Ct. at 540; Fernandez, 306 S.W.3d at 357.
CONCLUSION
We resolve appellant's sole issue against him. We affirm the trial court's judgment.
/David Evans/
DAVID EVANS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.1
150959F.U05
JUDGMENT
On Appeal from the 199th Judicial District Court, Collin County, Texas
Trial Court Cause No. 199-82933-2014.
Opinion delivered by Justice Evans. Chief Justice Wright and Justice Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 14th day of July, 2016.