                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS


                                               §
 THE STATE OF TEXAS,                                           No. 08-13-00316-CR
                                               §
                  Appellant,                                     Appeal from the
                                               §
 v.                                                        County Criminal Court No. 8
                                               §
 AMANDA SUZANNE KOVACH,                                      of Dallas County, Texas
                                               §
                  Appellee.                                    (TC# MA12-58900-J)
                                               §

                                        OPINION

       The State of Texas appeals a suppression order granted in favor of Amanda Kovach. We

reverse and remand.

                                       BACKGROUND

       This appeal arises out of a driving while intoxicated (DWI) case and was transferred to us

from the Fifth Court of Appeals in Dallas. The facts are straightforward and undisputed. Dallas

Police Department Officer Robert Wilcox witnessed Kovach driving her car on a public road at

approximately 1:42 a.m. without using her headlights. Based on his belief that she had violated

TEX.TRANSP.CODE ANN. § 547.302(a)(West 2011)(governing the use of headlights), Officer

Wilcox initiated a stop which ultimately culminated in Kovach’s arrest for DWI.

       Following a hearing, the trial court granted Kovach’s motion to suppress, apparently on


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the basis that Section 547.302(a) required the use of headlights at nighttime only if atmospheric

conditions did not permit the driver to see more than 1,000 feet ahead of the vehicle. In its

findings of fact and conclusions of law, the trial court found that Kovach failed to use her

headlights. It also found that Officer Wilcox was a credible witness.

       The State appealed.

                                         DISCUSSION

       When resolution of a motion to suppress hinges on the trial court’s assessment of witness

credibility and demeanor, we review the ruling for abuse of discretion as a mixed question of fact

and law and grant the lower court great deference. Valtierra v. State, 310 S.W.3d 442, 447

(Tex.Crim.App. 2010). However, when as in this case the facts are undisputed and suppression

turns on a pure question of law, we review the trial court’s ruling de novo. Id. at 447-48. Here,

the trial court’s findings of fact make absolutely clear that Officer Wilcox was a credible witness

and that Kovach failed to use her headlights. Thus, the only remaining issue is whether the

Transportation Code requires nighttime drivers to use their headlights only when they cannot see

1,000 feet in front of their vehicles. If so, Officer Wilcox had no reasonable suspicion to stop

Kovach. We find that the Code imposes no such requirement.

       The Transportation Code states in relevant part:

       (a) 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(a).

       Although the use of the phrase “and” in a statute is often conjunctive, the plain language

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of the statute here shows that the Texas Legislature used the word “and” to set up two alternate

situations in which Texas drivers are required to use their headlights. State v. Gammill, 442

S.W.3d 538, 540 (Tex.App.--Dallas 2014, pet. ref’d). A driver commits an offense both when

she drives without headlights at night and when she drives when light is insufficient or

atmospheric conditions limit visibility to less than 1,000 feet.                       Direct, on-point precedent

supports this reading. See id.1

           Because the trial court expressly found Officer Wilcox to be credible, because it found

that Kovach failed to use her headlights at nighttime, and because the statute penalizes driving at

nighttime without headlights, Officer Wilcox had reasonable suspicion to initiate the traffic stop.

See Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992)(traffic violation may constitute

reasonable suspicion for stop). The trial court erred in ordering suppression.

           Issue One is sustained. We reverse the trial court’s judgment and remand for further

proceedings.



November 25, 2014
                                                         YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




1
    As this is a Fifth Court of Appeals transfer case, their precedent controls. TEX.R.APP.P. 41.3.

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