Dustin Brant Heard v. State

In The Court of Appeals Ninth District of Texas at Beaumont ______________________ NO. 09-06-462 CR ______________________ DUSTIN BRANT HEARD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal From the County Court at Law No. 1 Montgomery County, Texas Trial Cause No. 05-205577 MEMORANDUM OPINION Dustin Brant Heard was charged with driving while intoxicated. See Tex. Pen. Code Ann. § 49.04 (Vernon 2003). Heard filed a motion to suppress any evidence recovered as a result of the traffic stop that led to his arrest. After the trial court denied the motion, Heard pled no contest to the charge. The trial court found Heard guilty, sentenced Heard to 180 days in jail, and assessed a $500 fine. The court suspended the sentence and placed Heard on community supervision for fifteen months. In a single issue, Heard argues that the trial court erred in denying his motion to suppress. We affirm the trial court's judgment. Generally, an appellate court reviews a trial court's ruling on a motion to suppress for abuse of discretion. Dyar v. State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003). The central issue presented in this case, however, is the meaning of a statute, a question of law we review de novo. See id.; see also Hampton v. State, 86 S.W.3d 603, 611 (Tex. Crim. App. 2002) (applying de novo review when interpreting statute and applying scope to undisputed facts). A warrantless traffic stop is a Fourth Amendment seizure analogous to a temporary detention. See Berkemer v. McCarty, 468 U.S. 420, 437-40, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). A detaining officer must have reasonable suspicion to believe that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists if the officer has specific, articulable facts that, taken together with rational inferences from those facts, lead the officer to reasonably conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. Id. Trooper James DeFrance, a certified peace officer, testified that he was on patrol in a marked peace officer car at approximately 12:21 a.m. when he stopped a vehicle for a traffic violation. The roadway had two lanes with one lane traveling in each direction. The area was dark. After DeFrance issued a citation or warning to the driver, he got into his vehicle. He kept the emergency lights activated as a safety measure to alert oncoming traffic to his presence on the side of the road and to allow both vehicles to merge back into the traffic lane. The trooper looked in his rearview mirror and saw that a vehicle approaching was not slowing down to a speed below the posted speed limit. His radar indicated that as the vehicle approached and passed him, it was traveling at fifty-six miles per hour in a fifty-five mile per hour zone. DeFrance stopped the vehicle because the vehicle passed his patrol car without slowing to a speed of at least twenty miles under the posted speed limit. Heard was the driver of the vehicle. He argues the traffic stop was unlawful because the trooper did not have reasonable suspicion to conclude that Heard violated section 545.157 of the Transportation Code. See Tex. Transp. Code Ann. § 545.157 (Vernon Supp. 2007). Heard cites a provision of the Texas Department of Public Safety's written policy relating to "emergency and pursuit operations" that states, "When operating a unit so equipped, an officer will activate the siren and/or emergency lights before a pursuit or emergency run begins and will continue such activation until the pursuit or emergency run is concluded as required by Transportation Code Section 546.003." He relies on a note made by the Texas Department of Public Safety's senior assistant general counsel on a fax cover sheet stating that "a 'pursuit' includes any time an officer signals a driver to pull over, and the pursuit is not considered concluded until the officer has completed any necessary business with the driver (e.g., writing a citation)." Heard contends that when his vehicle passed the trooper's patrol car, the patrol car was not an "authorized emergency vehicle" because the trooper had concluded his pursuit of the other vehicle, and the continued use of emergency lights violated the Texas Department of Public Safety's policies. Heard argues that because the trooper should have turned off the emergency lights prior to Heard passing the patrol car, Heard's initial detention and subsequent arrest were unlawful. Section 545.157(a) of the Transportation Code provides as follows: (a) On approaching a stationary authorized emergency vehicle using visual signals that meet the requirements of Sections 547.305 and 547.702, an operator, unless otherwise directed by a police officer, shall: (1) vacate the lane closest to the emergency vehicle when driving on a highway with two or more lanes traveling in the direction of the emergency vehicle; or (2) slow to a speed not to exceed: (A) 20 miles per hour less than the posted speed limit when the posted speed limit is 25 miles per hour or more; or (B) five miles per hour when the posted speed limit is less than 25 miles per hour. Id.; see also Tex. Transp. Code Ann. § 547.305 (Vernon Supp. 2007), § 547.702 (Vernon 1999). The statute defines an "authorized emergency vehicle" as, among other things, "a fire department or police vehicle[.]" Tex. Transp. Code Ann. § 541.201(1)(A) (Vernon Supp. 2007). Heard's argument that the marked police car was not an authorized emergency vehicle has no merit. The statute expressly provides that a police vehicle is an authorized emergency vehicle. See id. When an authorized emergency vehicle is stationary and using visual signals that meet statutory requirements, an operator of an approaching vehicle must comply with section 545.157(a). See id. § 545.157(a). The statute does not provide an exception for circumstances when the use of visual signals on a stationary authorized emergency vehicle does not comply with departmental policies. In any event, here the use of visual signals was an authorized use. Under section 546.003, an operator in a parked authorized emergency vehicle shall use, at the operator's discretion and in accordance with departmental policies, audible or visual signals that meet statutory requirements. See id. §§ 546.001, 546.003 (Vernon 1999). The Texas Department of Public Safety's policy provides that the operator will activate emergency lights before a pursuit begins and will continue such activation until the pursuit is concluded as required by section 546.003. DeFrance testified that he stopped another vehicle for a traffic violation. DeFrance exercised his discretion in continuing to use the emergency signals to make sure other drivers could see his vehicle in the dark and to allow both his patrol car and the other vehicle to merge back into traffic. The trooper testified that his business with the other driver had not concluded when he returned to his car because he had to make sure the driver could safely return to the roadway. Heard approached without slowing to twenty miles per hour less than the posted speed limit. The trooper had reasonable suspicion to conclude that Heard violated the law. Issue one is overruled. The judgment is affirmed. AFFIRMED. ____________________________ DAVID GAULTNEY Justice Submitted on October 31, 2007 Opinion Delivered March 12, 2008 Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.