REVERSE and REMAND; Opinion Filed April 1, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00703-CR

                          THE STATE OF TEXAS, Appellant
                                                V.
                        ASHLEY BETH GAMMILL, Appellee

                        On Appeal from the County Criminal Court No. 7
                                     Dallas County, Texas
                            Trial Court Cause No. MA12-49137-H

                                          OPINION
                          Before Justices Moseley, Bridges, and Evans
                                  Opinion by Justice Moseley

       The State appeals the trial court’s order granting the motion to suppress filed by Ashley

Beth Gammill. The case hinges on whether the Transportation Code section setting forth a

driver’s duty to display headlights should be construed to be in the conjunctive or the disjunctive.

That section states:

       A vehicle shall display each lighted lamp and illuminating device required by this
       chapter to be on the vehicle:

       (1) at nighttime; and

       (2) when light is insufficient or atmospheric conditions are unfavorable so that a
       person or vehicle on the highway is not clearly discernible at a distance of 1,000
       feet ahead.
TEX. TRANSP. CODE ANN. § 547.302 (West 2011). 1

        We hold as a matter of law that, despite the statute’s use of the conjunction “and,” the

statute is properly construed disjunctively. Thus, we reverse the trial court’s order granting the

motion to suppress and remand the case to the trial court for further proceedings.

        Gammill was charged by information with driving while intoxicated, a Class A

misdemeanor offense.         She filed a motion to suppress, contending the State did not have

reasonable suspicion to initiate the traffic stop that resulted in her arrest.

        A defendant moving to suppress evidence because of an illegal search or seizure has the

initial burden of producing evidence that rebuts the presumption of proper police conduct.

Amador v. State, 275 S.W.3d 872, 879 (Tex. Crim. App. 2009). A defendant meets this burden

by producing evidence the search or seizure occurred without a warrant. Id. The burden then

shifts to the State to prove the search or seizure was reasonable under the totality of the

circumstances. Id.

        An officer may lawfully stop and reasonably detain a person for a traffic violation.

Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992); see also Terry v. Ohio, 392 U.S.

1, 21 (1968). Reasonable suspicion exists if the officer can point to specific, articulable facts

that reasonably lead to the conclusion the person detained is, has been, or soon will be engaged

in criminal activity. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

        At the hearing on Gammill’s motion to suppress, the arresting officer testified that around

11:30 at night, he saw a vehicle driving on the Dallas North Tollway without headlights. He

stopped the vehicle and noticed the driver, Gammill, appeared intoxicated. After performing

several field sobriety tests, he arrested her for driving while intoxicated. The officer did not


        1
          Nighttime is defined as “the period beginning one-half hour after sunset and ending one-half hour before
sunrise.” TEX. TRANSP. CODE ANN. § 541.401(5).


                                                      –2–
testify that a person or vehicle on the highway was not clearly discernible at a distance of 1,000

feet ahead.

         Gammill argued the statute sets forth a conjunctive test, meaning drivers must display

lights only when it is both nighttime and visibility is less than 1,000 feet. The State argued the

statute is disjunctive, meaning drivers must display lights either when it is nighttime or when

visibility is less than 1,000 feet. The trial court granted Gammill’s motion to suppress because

the record was silent on the issue of 1,000 feet of visibility.

         The State appeals. 2 In a single issue it asserts the trial court erred by interpreting the

statute conjunctively and, therefore, by granting Gammill’s motion to suppress. 3

         We review a trial court’s ruling on a motion to suppress under a bifurcated standard: we

give almost total deference to the trial court’s determination of historical facts, and we review de

novo the court’s application of the law to the facts. See Valtierra v. State, 310 S.W.3d 442, 447

(Tex. Crim. App. 2010). However, statutory construction is a question of law and is reviewed de

novo. Boston v. State, 410 S.W.3d 321, 325 (Tex. Crim. App. 2013).

         The goal of statutory construction is to give effect to the collective intent or purpose of

the legislature that enacted the statute. Id. (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex.

Crim. App. 1991)).           We apply the plain meaning of the text when a statute is clear and


         2
             See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West Supp. 2013).
         3
            Gammill’s brief points out that, when asked by the trial court whether the State agreed that the statute
required proof that it was both nighttime and light was insufficient, the prosecutor essentially agreed, saying, “That’s
what — how we would read it with that word and.” Gammill’s brief does not make clear how this exchange affects
the argument here. However, we conclude nothing about this exchange estops the State from asserting its issue on
appeal. “[T]he law of invited error estops a party from making an appellate error of an action it induced.” Prystash
v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (“‘The rule in question [invited error] is but a deduction from
the doctrine of estoppel. Where a party by a request for a ruling leads the court into error, he should be precluded
from claiming a reversal of the judgment by reason of the error so committed.’” Id. (brackets added) (quoting
Missouri, K. & T. Ry. Co. of Tex. v. Eyer, 70 S.W. 529, 529–30 (Tex. 1902)). The prosecutor’s admission that the
statute used the word “and” instead of “or” did not invite the court to grant Gammill’s motion. The State argued
below, as it does now, that Gammill’s motion should have been denied.




                                                         –3–
unambiguous. Boykin, 818 S.W.2d at 785–86. If the plain language of the statute leads to an

absurd result the legislature could not have intended or is ambiguous, we consider extra-textual

sources to ascertain the collective intent of the legislature. Boston, 410 S.W.3d at 325.

        Looking at the statute as a whole, the plain meaning of the text imposes a duty to display

lights during two alternative time periods: (1) “at nighttime” and (2) “when light is insufficient

or atmospheric conditions are unfavorable so that a person or vehicle on the highway is not

clearly discernible at a distance of 1,000 feet ahead.” TEX. TRANSP. CODE ANN. § 547.302. The

duty applies during either time period. Gammill’s interpretation that there is no duty to display

lights until both conditions occur at the same time is not supported by the plain meaning of the

text.

        Furthermore, although the terms “and” and “or” are not interchangeable in general, they

may be interpreted as synonymous when necessary to effectuate the legislature’s intent or to

prevent an ambiguity, absurdity, or mistake. See Bayou Pipeline Corp. v. R.R. Comm’n, 568

S.W.2d 122, 125 (Tex. 1978); Collin Cnty. Appraisal Dist. v. Ne. Dallas Assocs., 855 S.W.2d

843, 848 (Tex. App.—Dallas 1993, no writ). For example, “and” may be interpreted as “or” to

effectuate the obvious intent of the legislature when doing so would not render the statute

meaningless and would not create an absurdity. State v. Carmaco, 203 S.W.3d 596, 601 (Tex.

App.—Houston [14th Dist.] 2006, no pet.) (construing “and” as “or” in ordinance prohibiting

dancer from performing less than 6 feet from patron “and” on a stage less than 18 inches high in

order to effectuate intent of city and avoid absurdity). However, the word “or” cannot be

interpreted as “and” in penal statutes when the effect would be to increase the punishment. See

Ruffin v. State, 134 S.W.2d 293, 294 (Tex. Crim. App. 1939) (statute setting punishment for

misdemeanor as a fine or jail time did not authorize sentence of both a fine and jail time).

        Interpreting the statute to impose a duty to display lights only when it is night and

                                                –4–
visibility is reduced to less than 1,000 feet leads to an absurd result. Such a construction would

mean that if daytime weather conditions—such as a daytime thunderstorm, sandstorm, or similar

weather event common to Texas—reduced visibility to less than 1,000 feet, a driver would have

no duty to display headlights. Driving with reduced visibility is a dangerous condition, whether

the reduced visibility is caused by night, by weather conditions, or by both. We conclude the

legislature could not have intended to enact a statute protecting drivers, passengers, and

bystanders under one such circumstance but not under the others. Such a construction would

effectively render the statute absurd.

       This absurd result was rejected in Lopez v. State, No. 13-99-613-CR, 2001 WL 892851,

at *1–3 (Tex. App.—Corpus Christi July 12, 2001, no pet.) (mem. op., not designated for

publication) (failure to display headlights in poor weather during daytime violates section

547.302). In that case, the defendant was stopped for not displaying his headlights at 6:00 p.m.

The evidence showed that the sun set at 6:17 p.m. Id. The defendant argued that section 547.302

requires a vehicle to display headlights only at nighttime and it was not yet night when he was

stopped. Id. The officer testified that it had rained earlier that evening and the sky was cloudy

and darker than usual at that time of day. The officer did not believe it was bright enough to see

a vehicle from over 1,000 feet without headlights. The court of appeals concluded the officer

had reasonable suspicion to stop the defendant for a traffic violation under section 547.302(a)(2)

even though it was not yet nighttime. Id.

       The State’s interpretation is also supported by the statute’s history. Transportation Code

section 547.302 was adopted in 1995 as part of the nonsubstantive revision of statutes relating to

transportation. Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, sec. 547.302, 1995 Tex. Gen.

Laws 1025, 1655. The prior law stated:

       Every vehicle upon a highway within this State at any time from a half hour after
       sunset to a half hour before sunrise and at any other time when, due to insufficient
                                               –5–
       light or unfavorable atmospheric conditions, persons and vehicles on the highway
       are not clearly discernible at a distance of one thousand (1,000) feet ahead shall
       display lighted lamps and illuminating devices . . ..

Act of April 15, 1971, 62nd Leg., R.S., ch. 83, § 54, sec. 109, 1971 Tex. Gen. Laws 722, 743

(former TEX. REV. CIV. STAT. ANN. art. 6701d, § 109(a)) (emphasis added). Under the prior

statute it was an offense to operate a vehicle without headlights at night. See Angel v. State, 740

S.W.2d 727, 731 (Tex. Crim. App. 1987) (road machinery included among vehicles that must

comply with lighting requirements when operated on highway at nighttime); Anderson v. State,

701 S.W.2d 868, 873 (Tex. Crim. App. 1985) (officer had reasonable suspicion to stop vehicle

he observed driving on highway without headlights at 2:20 a.m.).

       Although the words “at any other time” were omitted in the codification of the statute

along with other changes, the legislature was clear that it intended no change in the substance of

the law:

       SECTION 25. LEGISLATIVE INTENT OF NO SUBSTANTIVE CHANGE.
       This Act is enacted under Section 43, Article III, Texas Constitution. This Act is
       intended as a recodification only, and no substantive change in law is intended by
       this Act.

Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 25, 1995 Tex. Gen. Laws 1025, 1871.

Accordingly, we reject any contention that the legislature intended a substantive change in the

law regarding the duty to display headlights by removing the words “at any other time.”

       Texas courts have held that driving without headlights at nighttime violates section

547.302 without discussing any additional requirement regarding visibility of less than 1,000

feet. See Francis v. State, No. 02-13-00075-CR, 2014 WL 782911, at *2–3 (Tex. App.—Fort

Worth Feb. 27, 2014, no. pet. h.) (officer had probable cause to stop driver for driving at night

with fog lights but not headlights); Baldez v. State, 386 S.W.3d 324, 326–27 (Tex. App.—San

Antonio 2012, no pet.) (applying section 547.302, officer had probable cause to stop car for not

displaying headlights at 11:29 p.m.); Throneberry v. State, 109 S.W.3d 52, 58 (Tex. App.—Fort

                                               –6–
Worth 2003, no pet.) (“[I]t is an offense to drive without the headlights of a car illuminated at

night.”); Pulley v. State, No. 07-06-0140-CR, 2006 WL 2860979, at *1 (Tex. App.—Amarillo

Oct. 9, 2006, no pet.) (mem. op., not designated for publication) (interpreting section 547.302 to

mean “[s]tatute requires one to engage a vehicle’s headlights while driving after dark”).

       The issue before us is whether the officer had reasonable suspicion to stop Gammill for a

traffic offense. Once the burden shifted to the State, the State was required to demonstrate the

reasonableness of the stop. Amador, 275 S.W.3d at 879. “The State does not have to establish

with absolute certainty that a crime occurred; it just has to carry its burden of proving that, under

the totality of the circumstances, the seizure was reasonable.” Abney v. State, 394 S.W.3d 542,

548 (Tex. Crim. App. 2013).

       Here, the officer testified to specific facts—Gammill’s vehicle was being operated on a

public road at 11:30 at night without displaying headlights—that reasonably lead to the

conclusion Gammill was committing a traffic violation. Accordingly, under the totality of the

circumstances, the traffic stop was reasonable. As a result, we conclude the trial court erred by

granting Gammill’s motion to suppress.

       We sustain the State’s issue. We reverse the trial court’s order granting the motion to

suppress and remand the case to the trial court for further proceedings.




                                                      /JimMoseley/
                                                      JIM MOSELEY
                                                      JUSTICE


Publish
TEX. R. APP. P. 47.2(b)
130703F.P05




                                                –7–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                         JUDGMENT

THE STATE OF TEXAS, Appellant                         On Appeal from the County Criminal Court
                                                      No. 7, Dallas County, Texas
No. 05-13-00703-CR          V.                        Trial Court Cause No. MA12-49137-H.
                                                      Opinion delivered by Justice Moseley.
ASHLEY BETH GAMMILL, Appellee                         Justices Bridges and Evans participating.

       Based on the Court’s opinion of this date, the trial court’s order granting appellee’s
motion to suppress is REVERSED and the case REMANDED for further proceedings.


Judgment entered this 1st day of April, 2014.




                                                      /Jim Moseley/
                                                      JIM MOSELEY
                                                      JUSTICE




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