                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00045-CR
        ______________________________


 CHRISTOPHER CHARLES MEADOWS, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




     On Appeal from the County Court at Law #1
               Gregg County, Texas
            Trial Court No. 2010-0592




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
                                           OPINION

       City of Kilgore Police Officer Joseph Harrison saw a vehicle driven by Christopher

Charles Meadows turn off of Stone Road and use a roadway that the officer believed was a private

driveway (the Roadway) to reach Utzman Street. Believing that Meadows failed to stop in the

Roadway and thus committed a traffic violation, Harrison turned on his overhead flashing lights to

initiate a traffic stop. Despite the flashing lights behind him, Meadows failed to stop, but

continued to drive until he reached his nearby home. After seeing signs that Harrison believed

indicated that Meadows was intoxicated, Harrison placed Meadows under arrest. Meadows

refused to submit to a breath test, so Harrison obtained a search warrant for a sample of Meadows‘

blood to be used in testing for alcohol levels. Because the hospital in Kilgore was unavailable to

him, Harrison transported Meadows to a hospital in nearby Longview (also in Gregg County)

where Meadows‘ blood was drawn. Tests on that blood revealed a blood-alcohol level consistent

with intoxication, and he was charged by information with a second offense driving while

intoxicated (DWI) and with fleeing from a police officer. After the trial court denied his motion

to suppress the evidence gained from the stop and search, Meadows pled guilty to both charges.

       Meadows appeals from his conviction for fleeing, arguing that the trial court erred by

failing to grant his motion to suppress because: (1) the officer lacked reasonable suspicion to stop

him, as the Roadway was a public road; (2) the officer lacked reasonable suspicion to stop him, as




                                                 2
Meadows could have stopped in the Roadway; and (3) the blood draw, being a search, exceeded

the officer‘s geographic jurisdiction.

       We affirm the judgment of the trial court because:        (1) the officer had reasonable

suspicion to believe the Roadway was a parking lot, driveway, or private road; (2) the officer had

reasonable suspicion to believe that Meadows failed to stop while traversing the Roadway; and (3)

a city police officer of a home-rule city may execute a valid search warrant anywhere within the

county where he is an officer.

Background Facts

       In the early morning hours of February 7, 2010, Kilgore Police Officer Joseph Harrison

observed two vehicles parked in a church parking lot; although the circumstances seemed

somewhat suspicious to him, he did not stop to make inquiry of the drivers because the church was

just outside the city limits of Kilgore. He then saw the two vehicles leave the parking lot and he

followed them. Harrison lost contact with one of the vehicles, but continued to follow the

remaining vehicle, a truck driven by Meadows.

       As Harrison followed Meadows‘ truck, he saw it turn off Stone Road onto the Roadway,

(which Harrison believed to be a private drive). The Roadway ran between Stone Road and

Utzman Street, and it provided access to a car wash and a bank‘s automatic teller machine (ATM).

As Harrison continued on Stone Road, he briefly lost sight of Meadows‘ truck, but after reasoning

that no one would likely wash a car at 1:00 a.m., Harrison turned around and followed Meadows



                                                3
down the ―driveway‖ (the Roadway).         Upon catching up to Meadows‘ truck, the officer

illuminated his overhead lights and tried to stop Meadows for violating Section 545.423 of the

Texas Transportation Code, which prohibits drivers from driving through a private driveway,

parking lot, or business or residential entrance without stopping the vehicle. TEX. TRANSP. CODE

ANN. § 525.423 (West 2011). Meadows ignored the lights on the police car and failed to stop,

continuing to drive until he reached his home, about 0.4 miles away. Harrison arrested Meadows

for fleeing a police officer. During this arrest, although Harrison observed signs of possible

intoxication (slurred speech, alcohol on breath, red/glassy eyes, unsteady on his feet), he did not

conduct field-sobriety tests at that time; instead, he took Meadows to the Kilgore Police

Department station. After Meadows refused to perform field-sobriety tests or provide a breath

specimen, Harrison obtained a search warrant for a blood specimen.           Harrison transported

Meadows from the police station to Good Shepherd Medical Center in Longview, Texas, to obtain

a blood sample (the test results of which showed elevated blood-alcohol levels).

       Meadows was charged by information with DWI, second offense, and fleeing from a police

officer. Meadows moved to suppress the evidence gained from the stop and search on the

grounds that the traffic stop detention and blood draw were both unlawful. After the trial court

refused to grant the suppression motion, Meadows pled guilty to both charges. On the DWI

charge, Meadows was sentenced to one year‘s confinement, but was granted community

supervision for a period of two years and was ordered to pay court costs. As conditions of his



                                                4
community supervision, he was ordered to pay an $850.00 fine and serve one seventy-two-hour

period in jail. On the fleeing charge, he was assessed a $350.00 fine and one year‘s confinement,

these being likewise subject to community supervision for a period of one year.

Standard of Review

       We review a trial court‘s decision on a motion to suppress evidence by applying a

bifurcated standard of review. Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana

2010, pet. ref‘d); Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.—Texarkana 2009, pet. ref‘d).

While we defer to the trial court on its determination of historical facts and credibility, we review

its application of the law and determination on questions not turning on credibility de novo.

Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d

85, 89 (Tex. Crim. App. 1997); Villarreal v. State, 935 S.W.2d 134, 138 n.5 (Tex. Crim. App.

1996); Graves, 307 S.W.3d at 489. We also afford deference to a trial court‘s ―application of law

to fact questions,‖ also known as ―mixed questions of law and fact,‖ if the resolution of those

questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. In

other words, we give almost total deference to the trial court in determining what the actual facts

are, and then we review de novo whether those facts are sufficient to give rise to reasonable

suspicion. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (determinations of

reasonable suspicion and probable cause should be reviewed de novo on appeal) (citing Ornelas v.

United States, 517 U.S. 690 (1996)).



                                                 5
       Since all the evidence is viewed in the light most favorable to the trial court‘s ruling, we are

obligated to uphold the denial of Meadows‘ motion to suppress if it was supported by the record

and was correct under any theory of law applicable to the case. Carmouche, 10 S.W.3d at

327–28; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

       The Officer Had Reasonable Suspicion to Believe the Roadway Was a Private Drive

       Officer Harrison stopped Meadows for driving through a private driveway without

stopping. As part of his first point of error, Meadows argues that the trial court erred in denying

his motion to suppress, because the Roadway in question was actually a part of Utzman Street, a

public road, and therefore the officer pulled him over for an act that did not constitute a traffic

offense. Meadows argues that because his actions did not amount to a traffic offense, the officer

lacked reasonable suspicion to stop him.

       A law enforcement officer may lawfully stop and detain a person for a traffic violation

committed in the presence of the officer. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App.

1992); Zervos v. State, 15 S.W.3d 146, 151 (Tex. App.—Texarkana 2000, pet. ref‘d). ―A routine

traffic stop resembles an investigative detention.‖ State v. Cardenas, 36 S.W.3d 243, 246 (Tex.

App.—Houston [1st Dist.] 2001, pet. ref‘d). The United States Supreme Court in Terry v. Ohio

established the test for investigative detentions.      Terry established a two-pronged test for

investigative detentions.    Terry v. Ohio, 392 U.S. 1, 19–20 (1968).             To determine the

reasonableness of an investigative detention, the court must inquire: ―(1) whether the officer‘s



                                                  6
action was justified at its inception; and, (2) whether it was reasonably related in scope to the

circumstances which justified the interference in the first place.‖ Davis v. State, 947 S.W.2d 240,

242 (Tex. Crim. App. 1997); see Terry, 392 U.S. at 19–20.

         Meadows challenges the first prong of the test. ―Under the first prong, ‗the police officer

must be able to point to specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant that intrusion.‘‖ Id. (quoting Terry, 392 U.S. at 21). These

facts must be more than a mere hunch or suspicion. Id. at 244. Whether the officer‘s suspicion

was reasonable is evaluated based on ―an objective standard that disregards any subjective intent

of the officer making the stop and looks solely to whether an objective basis for the stop exists.‖

Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The specific, articulable facts, along

with rational inferences from those facts, must allow the officer to reasonably conclude the person

detained actually is, has been, or soon will be engaged in criminal activity. United States v.

Sokolow, 490 U.S. 1, 10 (1989).

         In a motion to suppress setting, the propriety of an arrest or detention need not be proven

beyond a reasonable doubt. See Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001);

Lalande v. State, 676 S.W.2d 115, 117–18, 117 n.4 (Tex. Crim. App. 1984). In the recent case of

York v. State, the Texas Court of Criminal Appeals held that the State‘s standard of proof is ―the

one that applies to most constitutional suppression issues: preponderance of the evidence.‖ 1 342


1
 In York, the court noted that ―[i]n at least one instance--the voluntariness of consent--the burden of proof is ‗clear and
convincing evidence.‘‖ 342 S.W.3d at 543 n.85 (citations omitted).

                                                            7
S.W.3d 528, 543 (Tex. Crim. App. 2011) (citations and footnotes omitted). The court, however,

cautioned that appellate courts should not defer to a police officer‘s legal conclusions. Garcia, 43

S.W.3d at 531. Since Garcia, several Texas courts of appeals have noted an officer‘s incorrect

understanding of the law does not give rise to a reasonable suspicion. Fowler v. State, 266

S.W.3d 498 (Tex. App.—Fort Worth 2008, pet. ref‘d); Goudeau v. State, 209 S.W.3d 713, 716

(Tex. App.—Houston [14th Dist.] 2006, no pet.); see United States v. Miller, 146 F.3d 274, 279

(5th Cir. 1998). The Third Circuit has explained this distinction succinctly as follows:

       [M]istakes of fact are rarely fatal to an officer‘s reasonable, articulable belief that
       an individual was violating a traffic ordinance at the time of a stop, many of our
       sister circuits have held that mistakes of law—even reasonable ones—can render a
       traffic stop ―unreasonable‖ under the Fourth Amendment.

United States v. Delfin–Colina, 464 F.3d 392, 398 (3d Cir. 2006). We believe the Third Circuit‘s

holding explains the distinction made by the Texas Court of Criminal Appeals in Garcia. See

Madden v. State, 242 S.W.3d 504, 508 n.7 (Tex. Crim. App. 2007) (noting factual issue was not

whether defendant was actually speeding, but whether officer had reasonable belief defendant was

speeding).

       The charge lodged against Meadows was not the violation of the Texas Transportation

Code in crossing over a private driveway (in common vernacular, ―corner cutting‖), but fleeing

from a police officer and DWI. Therefore, the question here is not whether Meadows actually

violated the traffic law but, rather, the objective reasonableness of the officer‘s suspicion that




                                                 8
Meadows had violated it. See id. (noting factual issue not whether defendant was actually

speeding, but whether officer had reasonable belief defendant was speeding). Specifically, based

on the facts presented, does a correct interpretation of the law allow a police officer to reasonably

suspect that the Roadway was a private drive, parking lot, or other private road?

        Here, there is evidence that the Roadway was a public road.2 Maps from internet sites

Google and Planetware label the Roadway as ―Utzman Street.‖ There are several traffic control

signs on the Roadway, including ―no left turn,‖ ―one way,‖ and ―no right turn.‖ Officer Harrison

admitted that the signs appear to be ―public – an actual official traffic-control sign,‖ rather than

signs that a private entity would erect. At the time of the stop, Harrison was unaware that the

Roadway had traffic signs on it.

        There is also evidence that the Roadway was a private road. Harrison testified that the

Roadway was ―not on our maps that we use in the police department as a street. It‘s just a

driveway.‖ However, nothing in the record indicates that Harrison had memorized or consulted




2
 Formal dedication of a roadway is only one means by which a roadway can become a public thoroughfare. There are
other ways, including prescriptive easement, Allen v. Keeling, 613 S.W.2d 253, 254 (Tex. 1981), and implied
dedication, Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985).


                                                       9
these police maps prior to the stop.3 Harrison had personal experience with the Roadway in

dispute because he had ―used that ATM before.‖4

        Obviously, reasonable minds could differ as to whether the Roadway was actually a public

roadway or a private one. Considering the officer‘s prior experience in using the Roadway and

the conflicting evidence which supports both the view that it was public and that it was private, we

find that Harrison had reasonable suspicion to believe that the Roadway was a private drive.

Therefore, we overrule this portion of Meadows‘ first point of error.

        The Officer Had Reasonable Suspicion to Believe that Meadows Failed to Stop While
        Traversing the Roadway

        As a part of his first point of error, Meadows contends that the trial court erred by denying

his motion to suppress because the officer lacked reasonable suspicion that Meadows failed to stop

while traversing the Roadway. Applying the standards discussed above (and assuming there was

sufficient evidence for the officer to reasonably believe the Roadway to be a private drive), the

issue is whether the facts presented in the record are sufficient to establish reasonable suspicion

that Meadows failed to stop. See Garcia, 43 S.W.3d at 531.



3
 There is no sign on the Roadway labeling the known public streets at either end of the Roadway, and no ―stop‖ or
―yield‖ signs at either end of the Roadway. The surface of the Roadway is the same type and pattern as that of the
bank‘s parking lot. However, there is no evidence in the record that Harrison was aware of, or that he considered,
such evidence at the time of the stop.
4
 We note that Harrison testified that the presence of the ATM on the Roadway ―did not enter [his] mind until‖ it was
brought up at Meadows‘ license revocation hearing. However, Harrison was not testifying regarding the public or
private nature of the Roadway, but rather, the initial reason he believed Meadows had turned onto the Roadway in the
first place—―I figured he was going to wash his car.‖

                                                        10
         When Meadows turned from Stone Road onto the Roadway, Harrison turned off his video

camera and continued along Stone Road for a moment before making a U-turn and turning down

the Roadway to follow Meadows. He saw that Meadows ―had made it all the way to Utzman

Road,‖ so Harrison ―got on it,‖5 and once again got behind Meadows and activated his overhead

lights and video camera. Harrison testified that the lights and camera were turned back on at the

point Meadows was turning from Utzman Street onto Parkview. He testified that he only lost

sight of Meadows for ―probably five or ten seconds,‖ but he admitted that it would not surprise him

to find out that his video camera had remained turned off for almost a full minute. He did not

believe that Meadows ―had stopped and then started going again,‖ so he attempted to pull him over

for driving through private property.

         Here, even though the video camera was turned off for almost a minute, there is evidence

that Harrison lost visual contact with Meadows for only a few seconds and that by the time

Harrison caught up to Meadows, he had left the Roadway, entered Utzman Street, and was turning

onto Parkview. We find that it is reasonable under these circumstances for an officer to suspect

that Meadows lacked an adequate amount of time to stop his truck and then start moving again.

Accordingly, we overrule this point of error.




5
 We presume ―got on it‖ to mean that Harrison sped up quickly, that is, he ―gunned it,‖ ―floored it,‖ or ―put the pedal
to the metal.‖

                                                          11
         A City Police Officer May Execute a Valid Search Warrant Anywhere in the County

         In his second point of error, Meadows contends that denying his motion to suppress was

error because Harrison lacked the authority to execute the search warrant outside the City of

Kilgore.

         Harrison obtained a search warrant from a Kilgore city judge for a sample of Meadows‘

blood. Because the Kilgore hospital was closed, Harrison transported Meadows outside the City

of Kilgore to Good Shepherd Medical Center in Longview, where Meadows‘ blood sample was

taken.

         The search warrant directs ―any Sheriff or any Peace Officer of Gregg County, Texas, or

any Peace Officer of the State of Texas,‖ to seize Meadows and carry him to a ―physician,

registered nurse, or medical laboratory technician skilled in the taking of HUMAN BLOOD . . .

and the said physician, registered nurse, or laboratory technician shall take‖ samples of Meadows‘

blood. There is no dispute that the search warrant itself is valid county-wide, that Harrison is a

peace officer of Gregg County, that both Kilgore and Longview are municipalities within Gregg

County, or that the sample was taken in a proper manner.

         Meadows‘ sole argument rests upon the fact that the Texas Local Government Code

specifically grants general-law municipal police departments countywide jurisdiction, but does not

similarly grant this same authority to home-rule municipalities, such as Kilgore.6 Thus, Meadows


6
 According to the City of Kilgore‘s website, http://cityofkilgore.com/government, Kilgore is a home-rule
municipality, and on our own initiative, we take judicial notice of that fact. See TEX. R. EVID. 201(b)(2), (c), (d), (f)

                                                          12
maintains, police departments of home-rule municipalities have only city-wide jurisdiction to

execute search warrants.

          Section 341.001 of the Texas Local Government Code, applying to Type A municipalities,

states:

                  (e)      A police officer has:
                           (1)    the powers, right, duties, and jurisdiction granted to or
                  imposed on a peace officer by the Code of Criminal Procedure; and
                           (2)    other powers and duties prescribed by the governing body.
                  (f)      A police officer may serve in each county in which the municipality
          is located all process issued by a municipal court.

TEX. LOC. GOV‘T CODE ANN. § 341.001 (West 2005). This blanket grant of statutory authority

given to police officers in Type A municipalities contrasts with Section 341.003 of the Local

Government Code, entitled ―Police Force of a Home–Rule Municipality,‖ which says only that

―[a] home-rule municipality may provide for a police department.‖ TEX. LOC. GOV‘T CODE ANN.

§ 341.003 (West 2005).

          If a police officer‘s geographic jurisdiction is not found in some statute, it is controlled by

the common law. State v. Kurtz, 111 S.W.3d 315 (Tex. App.—Dallas 2003), aff’d, 152 S.W.3d

72 (Tex. Crim. App. 2004) (traffic stop improper because offense occurred outside city limits); see

Angel v. State, 740 S.W.2d 727, 732–33 (Tex. Crim. App. 1987) (relying on former revised civil

statutes Articles 998 and 999, held that officer‘s jurisdiction is county-wide, but case was later

(at any stage of proceeding, court in its discretion and on its own motion can take judicial notice of facts capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned); see also
Watkins v. State, 245 S.W.3d 444, 455 (Tex. Crim. App. 2008).


                                                         13
superseded by statute, and it continues to be cited today for holding that jurisdiction is determined

by common law if it is not found in statute). At common law, a police officer‘s jurisdiction was

confined to the limits of his city. See Landrum v. State, 751 S.W.2d 530, 531 (Tex. App.—Dallas

1988), pet. ref’d, 795 S.W.2d 205 (Tex. Crim. App. 1990) (per curiam). Thus, unless there exists

some statutory authority for extension of that jurisdiction, the city officer‘s jurisdiction was

limited to the city‘s geographical limits. See Angel, 740 S.W.2d at 732. However, we find the

Kurtz line of cases to be distinguishable from the present case because the investigative stop in

Kurtz was a detention, falling under the powers of arrest, rather than a search, such as we have

here.

        Our sister court in Fort Worth directly addressed this issue in $27,877.00 Current Money of

United States v. State, and determined that ―a home-rule municipal police force‘s jurisdiction for

the execution of a valid search warrant is at least as broad as that of a general-law municipality,

that is, at least countywide.‖ 331 S.W.3d 110, 117 (Tex. App.—Fort Worth 2010, pet. denied)

(citing Brother v. State, 85 S.W.3d 377, 385 (Tex. App.––Fort Worth 2000), aff’d, 166 S.W.3d 255

(Tex. Crim. App. 2005) (holding jurisdiction of a Type A municipality police officer is ―at least

county-wide‖); see also Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998) (―[A] home rule

city . . . has all the powers of the state not inconsistent with the Constitution, the general laws, or

the city‘s charter . . . .‖). The Fort Worth court reasoned:

        Home-rule municipalities are different from general-law municipalities because a
        ―home rule city derives its power not from the Legislature but from Article XI,


                                                  14
       Section 5, of the Texas Constitution.‖ Lower Colo. River Auth. v. City of San
       Marcos, 523 S.W.2d 641, 643 (Tex. 1975); see also TEX. CONST. ART. XI, § 5.
       They possess ―the full power of self government and look to the Legislature not for
       grants of power, but only for limitations on their power.‖ Dallas Merchs.’ &
       Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 490–91 (Tex. 1993). A
       home-rule municipality‘s powers may therefore be limited by statute, but only
       when the legislature‘s intention to do so appears ―with unmistakable clarity.‖
       Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998).

       The reason that section 341.003 does not grant home-rule police countywide
       jurisdiction is because home-rule municipalities do not receive their grants of
       power from the legislature. See Lower Colo. River Auth., 523 S.W.2d at 643.
       General-law municipalities, on the other hand, do. See Tex. Dep’t of Transp. v.
       City of Sunset Valley, 146 S.W.3d 637, 645 (Tex. 2004) (―General-law
       municipalities . . . are political subdivisions created by the State and, as such,
       possess those powers and privileges that the State expressly confers upon them.‖).
       We do not see in local government code sections 341.001 or 341.003, or in any
       other statute, any clear intent by the legislature to restrict a home-rule municipality
       police force to a jurisdiction any less than that of a general-law municipality.

$27,877.00 Current Money of United States, 331 S.W.3d at 115–16.

       It is the duty of every peace officer, when a search warrant is duly delivered to him, to

―execute it without delay.‖ TEX. CODE CRIM. PROC. ANN. art. 18.06 (West 2005). A search

warrant is sufficient if it ―command[s] any peace officer of the proper county to search forthwith

the person, place, or thing named.‖ TEX. CODE CRIM. PROC. ANN. art. 18.04 (West 2005). The

search warrant in this case authorized ―the Sheriff or any Peace Officer of Gregg County, Texas or

any Peace Officer of the State of Texas‖ to conduct the search described within it. City police

officers are ―peace officers‖ as defined by Article 2.12(3) of the Texas Code of Criminal

Procedure. TEX. CODE CRIM. PROC. ANN. art. 2.12(3) (West 2010). The Texas Penal Code does



                                                 15
not define the phrase ―of the county‖ or ―of the State of Texas,‖ but since a warrant must command

a peace officer ―of the proper county,‖ we take ―Peace Officer of Gregg County‖ to mean a peace

officer with jurisdiction throughout Gregg County. See $27,877.00 Current Money of United

States, 331 S.W.3d at 117.

       We agree with the well-reasoned opinion in $27,877.00 Current Money of United States,

and hold that a home-rule municipal police force‘s jurisdiction for the execution of a valid search

warrant is at least countywide. Because the search warrant in this case was issued in Kilgore, in

Gregg County, by a magistrate with jurisdiction in Gregg County, to a Kilgore police officer with

jurisdiction in Gregg County, we hold that Officer Harrison acted within his duty and jurisdiction

to accept the search warrant and execute it. Accordingly, we overrule this point of error.

       We affirm the trial court‘s judgment.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:       October 19, 2011
Date Decided:         November 15, 2011

Publish




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