                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00075-CR


ROY ANTHONY FRANCIS                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                     ----------

      FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY

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                                   OPINION

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                                 I. Introduction

      Around 2:30 a.m. on June 23, 2012, Grapevine Police Officer David

Dickinson observed a pickup truck with its fog lights on and its headlights off. He

stopped the driver, Appellant Roy Anthony Francis, for driving at night without his

headlights on and then arrested him for DWI. Francis filed a motion to suppress

and argued at the motion hearing that his failure to use his headlights in addition
to his fog lights was not a traffic violation. After the trial court denied his motion,

Francis pleaded guilty and received 100 days’ confinement (suspended),

eighteen months’ community supervision, and a $750 fine. He now appeals the

denial of his motion to suppress. We affirm.

                                    II. Traffic Violation

      In four issues, Francis argues that Officer Dickinson conducted the traffic

stop “solely based on his misunderstanding of vehicle lighting requirements

under the Transportation Code,” that driving at night using only fog lights is not a

traffic violation, that there is no statutory prohibition against it and no statutory

specification that headlights at a minimum are to be used at night, and that,

therefore, the trial court erred by denying his motion to suppress.

A. Motion Hearing

      At the hearing on Francis’s motion to suppress, Officer Dickinson

explained the difference between fog lights and headlights, stating,

      Fog lights, by their nature, their construction and their purpose, the
      beam is pointed down for low-light conditions when you’re wanting to
      look directly in front of the car, but when you’re driving on a clear
      day, a headlight casts a much farther beam, approximately, I think
      it’s a thousand feet. It is a thousand feet that has to be clearly
      discernable and so they’re considerably different in their function.

He testified that driving at night required headlights, warranting the traffic stop, as

follows:

             Q. Is there a danger to driving without headlights?

            A. Absolutely. The intent of fog lights is that, you know, that
      you see immediately in front of you in low-light conditions, so if you


                                          2
      don’t have any traffic lights and you’re traveling on a highway or, for
      example, on East and West Northwest there, the speed limit varies
      between 45 and 50 miles an hour so, at those speeds, you would
      definitely want to have your headlamps activated.

             ....

             Q. Okay. Was it clearly nighttime that you initiated the stop?

             A. Yes, ma’am.

            Q. And was the light insufficient or unfavorable so that a
      person or a vehicle on the highway is not clearly discernable at a
      distance of a thousand feet?

            A. Yes. His headlamps were not visible at a distance of a
      thousand feet.

             ....

              Q. And is failure to operate this vehicle without headlights a
      traffic violation?

             A. Yes. Failure to display headlights when required is a traffic
      violation.

             ....

            Q. Headlights—is it your understanding that headlights are
      the only thing that are permissible to be used at night?

            A. No. You can—you can have other lights displayed, but the
      headlamps are required.

      At the conclusion of Officer Dickinson’s testimony, Francis argued that

neither transportation code section 547.302(c) nor (d) specifically requires

headlights and that displaying only fog lights at night is not a traffic violation. The

State replied that reading sections 547.302, 547.321, and 547.328 together

supports finding that driving without headlights was a traffic violation.


                                          3
      In ruling on the motion to suppress, the trial judge stated,

             I would also refer Counsel to Transportation Code, Section
      547.326, Minimum Lighting Equipment Required, Sub (a): A vehicle
      that is not specifically required to be equipped with lamps or other
      lighting devices shall be equipped at the times specified in Section
      547.302 (a) with at least one lamp that emits a white light visible at a
      distance of at least a thousand feet from the front and: Then it refers
      to some rear-end lights and red lights which I think is also relevant in
      this calculation.
             In addition to all of the other code sections that Counsel has
      referred to, and as a result, I am going to deny the Defense Motion
      to Suppress.

B. Analysis

      An officer has probable cause to stop and arrest a driver if he observes the

driver commit a traffic offense. State v. Gray, 158 S.W.3d 465, 469–70 (Tex.

Crim. App. 2005); see State v. Ballman, 157 S.W.3d 65, 70 (Tex. App.—Fort

Worth 2004, pet. ref’d). Driving without headlights at night is a traffic offense.

Anderson v. State, 701 S.W.2d 868, 869–70, 873 (Tex. Crim. App. 1985), cert.

denied, 479 U.S. 870 (1986); Baldez v. State, 386 S.W.3d 324, 327 (Tex. App.—

San Antonio 2012, no pet.); Throneberry v. State, 109 S.W.3d 52, 58 (Tex.

App.—Fort Worth 2003, no pet.); see also Pulley v. State, No. 07-06-00140-CR,

2006 WL 2860979, at *1 (Tex. App.—Amarillo Oct. 9, 2006, no pet.) (mem. op.,

not designated for publication) (citing section 547.302(a)(1) for the proposition

that “[s]tatute requires one to engage a vehicle’s headlights while driving after

dark”); Manyou v. State, No. 05-05-00161-CR, 2006 WL 2664281, at *1, *4–5

(Tex. App.—Dallas Sept. 18, 2006, pet. ref’d) (not designated for publication)

(holding that officer had reasonable suspicion to stop driver for traffic offense


                                         4
when he noticed, at 1:12 a.m., that one of driver’s lighted headlights pointed

straight down and did not cast forth its beam forward 1,000 feet); Coggin v. State,

No. 03-04-00585-CR, 2006 WL 1292581, at *1–2 (Tex. App.—Austin May 12,

2006, no pet.) (mem. op., not designated for publication) (stating that there was

sufficient basis to lawfully detain appellant when officer observed him driving at

around 2:00 a.m. without his headlights on, a violation of transportation code

section 547.302); Williams v. State, No. 04-02-00747-CR, 2003 WL 21658529, at

*1 (Tex. App.—San Antonio July 16, 2003, pet. ref’d) (mem. op., not designated

for publication) (holding that initial stop was reasonable when officers stopped

appellant for driving with only one headlight after dark); Herrera v. State, No. 08-

00-00482-CR, 2002 WL 187065, at *1, *3 (Tex. App.—El Paso Feb. 6, 2002, no

pet.) (not designated for publication) (stating that appellant’s driving without

headlights at 3 a.m. was a valid traffic offense).

      It is undisputed that Francis drove at night using only his vehicle’s fog

lights and not his vehicle’s headlights. Francis nonetheless argues that “[n]either

the plain language of the statute [section 547.302] nor the reading of the statute

under the rules of construction require headlamps specifically at night.”

      We disagree.       When reviewed in its totality, chapter 547 of the

transportation code makes clear that headlights are required at night1 and


      1
       Chapter 547 addresses vehicle equipment; subchapter D contains general
provisions regarding vehicle lighting requirements while subchapter E contains
general lighting requirements for vehicles. See Tex. Transp. Code Ann.
§§ 547.301–.303, .321–.335 (West 2011), §§ 547.304–.05 (West 2011 & Supp.

                                          5
distinguishes between the roles of headlights and fog lights2 in vehicle lighting.3

See Tex. Transp. Code Ann. §§ 547.321(a), (c), 547.328(a), (b); see also Druery

v. State, 412 S.W.3d 523, 533 (Tex. Crim. App. 2013) (“Statutory construction is

a question of law subject to de novo review.”).

      Transportation code section 547.302, “Duty to Display Lights,” provides:

      (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.



2013); see also Tex. Gov’t Code Ann. § 311.016(1), (2) (West 2013) (stating that
“may” creates discretionary authority or grants permission while “shall” imposes a
duty).
      2
       The code refers to headlights as “head lamps” and fog lights as “fog
lamps.”
      3
        As noted by Francis, transportation code section 547.3215 requires
lighting, reflective devices, and associated equipment to comply with current
federal standards under 49 C.F.R. § 571.108 or the federal standards that were
in effect at the time the vehicle was manufactured. Tex. Transp. Code Ann.
§ 547.3215. 49 C.F.R. § 571.108 states that the standard’s purpose is

      to reduce traffic accidents and deaths and injuries resulting from
      traffic accidents, by providing adequate illumination of the roadway,
      and by enhancing the conspicuity of motor vehicles on the public
      roads so that their presence is perceived and their signals
      understood, both in daylight and in darkness or other conditions of
      reduced visibility.

49 C.F.R. § 571.108 S2. Francis argues that he was conspicuous enough with
his fog lights because Officer Dickinson noticed him.


                                         6
            ....

      (c) At least one lighted lamp shall be displayed on each side of the
      front of a motor vehicle.

      (d) Not more than four of the following may be lighted at one time on
      the front of a motor vehicle:

            (1) a headlamp required by this chapter; or

            (2) a lamp, including an auxiliary lamp or spotlamp, that
                projects a beam with an intensity brighter than 300
                candlepower.

Id. § 547.302 (emphasis added).       Section 547.305, “Restrictions on Use of

Lights,” elaborates that a light “other than a headlamp, spotlamp, auxiliary lamp,

turn signal lamp, or emergency vehicle or school bus warning lamp” that projects

a beam with an intensity brighter than 300 candlepower “shall be directed so that

no part of the high-intensity portion of the beam strikes the roadway at a distance

of more than 75 feet from the vehicle.” Id. § 347.305(a).

      Section 547.321, “Headlamps Required,”4 provides that a motor vehicle

“shall be equipped with at least two headlamps,” and that “[a]t least one

headlamp shall be mounted on each side of the front of the vehicle” at a height

from twenty-four to fifty-four inches. Id. § 547.321 (emphasis added). Sections

547.322 (“Taillamps Required”), 547.323 (“Stoplamps Required”), 547.324 (“Turn


      4
       While headings do not limit or expand a statute’s meaning, see Tex. Gov’t
Code Ann. § 311.024 (West 2013), they may be considered as a guide to
showing legislative intent. See Townsley v. State, 538 S.W.2d 411, 414 (Tex.
Crim. App. 1976); Marroquin v. State, 112 S.W.3d 295, 300 (Tex. App.—El Paso
2003, no pet.).


                                        7
Signal Lamps Required”), and 547.325 (“Reflectors Required”) set forth the other

illumination standards required for vehicle safety within the statutory scheme.

See id. §§ 547.322–.325 (emphasis added).5               Section 547.326, “Minimum

Lighting Equipment Required,” specifies that even vehicles that are not required

to be equipped “with lamps or other lighting devices” shall be equipped “at the

times specified in Section 547.302(a) with at least one lamp that emits a white

light visible at a distance of at least 1,000 feet from the front,” in addition to lights

that emit red light from the rear “visible at a distance of at least 1,000 feet.”

Id. § 547.326.

      In contrast to these required lights, section 547.327, “Spotlamps

Permitted,” limits a motor vehicle to “not more than two spotlamps,” id.

§ 547.327, and section 547.328, “Fog Lamps Permitted,” limits a motor vehicle to

      5
        Francis argues that if “each” of these lamps is “required” under section
547.302(a), it would be a traffic violation to drive at night without illuminating all of
these at once and calls this an absurd result. We do not read the statutes in this
way: It would instead be an absurd result if a driver were not required to turn on
his or her headlights, taillights, stop lights, and turn signal lights in the dark or for
a vehicle, particularly one driven at night, to lack reflectors on the rear of the
vehicle. See Tex. Transp. Code Ann. §§ 547.321–.325; see also Palacios v.
State, 319 S.W.3d 68, 70, 72–73 (Tex. App.—San Antonio 2010, pet. ref’d)
(holding stop reasonable when officer pulled over vehicle at 7:30 p.m. in rainy
conditions for lack of rear license plate illumination under section 547.322(f)–(g));
Smith v. State, No. 02-07-00321-CR, 2008 WL 3540209, at *4 (Tex. App.—Fort
Worth Aug. 14, 2008, no pet.) (mem. op., not designated for publication) (“A
brake light that is constantly on and that cannot signal when the vehicle is
braking does not comply with transportation code section 547.323.”); Jiminez v.
State, No. 04-05-00810-CR, 2006 WL 2737707, at *1 & n.1 (Tex. App.—San
Antonio Sept. 27, 2006, no pet.) (mem. op., not designated for publication)
(stating that after-market white rear blinker light is a violation of transportation
code sections 547.303, 547.324(d)(2)).


                                           8
“not more than two fog lamps.”6 Id. § 547.328. Section 547.328 also provides

that lighted fog lamps “may be used with lower headlamp beams as specified by

Section 547.333.”     Id. § 547.328(c) (emphasis added).        Section 547.329,

“Auxiliary Passing Lamps Permitted,” and section 547.330, “Auxiliary Driving

Lamps Permitted,” limit a vehicle to “no more than two” auxiliary passing lamps

or auxiliary driving lamps and provide that they “may be used with headlamps as

specified by Section 547.333.” Id. §§ 547.329–.330 (emphasis added). Section

547.331, “Hazard Lamps Permitted,” provides that a vehicle may be equipped

with lamps to warn other drivers of a vehicular traffic hazard that requires

unusual care in approaching, overtaking, and passing, and section 547.332,

“Other Lamps Permitted,” provides that a vehicle may be equipped with “not

more than two side cowl or fender lamps,” “not more than two running board

courtesy lamps,” and “one or more backup lamps.”            Id. §§ 547.331–.332

(emphasis added).

      Section 547.333, “Multiple-Beam Lighting Equipment Required,” identifies

headlamps, auxiliary driving lamps, and auxiliary passing lamps and 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


      6
        Section 547.328 also sets out that a fog lamp shall be mounted on the
front of the vehicle at a height from 12 to 30 inches and aimed “so that no part of
the high-intensity portion of the beam from a lamp mounted to the left of center
on a vehicle projects a beam of light at a distance of 25 feet that is higher than
four inches below the level of the center of the lamp.” Id. § 547.328(b)(1)–(2).


                                        9
reveal a person or vehicle at a safe distance ahead of the vehicle.”               Id.

§ 547.333(a), (c) (emphasis added); see Delao v. Carlson, 589 S.W.2d 525, 527

(Tex. Civ. App.—Austin 1979, no writ) (stating that under section 547.333’s

predecessor, which also required distribution of light to reveal persons at a “safe

distance,” there is not an absolute standard for “safe distance” but rather one that

must be determined from the evidence of the facts and circumstances existing at

the time the motorist was operating the vehicle); see also Nelson v. State, 827

S.W.2d 52, 53–54 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (noting that the

purpose for transportation code vehicle lighting requirements “is to ensure that

motor vehicles are operated safely”). “At a safe distance” requires evidence of

the existing conditions, including darkness, atmospheric conditions, traffic, and

roadside hazards. Delao, 589 S.W.2d at 528.

      If a general provision conflicts with a specific provision, the provisions shall

be construed, if possible, so that effect is given to both, but if the conflict is

irreconcilable, then the specific usually prevails over the general. See Strickland

v. State, 193 S.W.3d 662, 665–66 (Tex. App.—Fort Worth 2006, pet. ref’d)

(discussing doctrine of in pari materia codified in government code section

311.026); see also Tex. Gov’t Code Ann. § 311.026 (West 2013). However, we

find no statutory conflict here between what lights are required at night—

headlights—and what lights are permitted at night in addition to headlights. See

Tex. Transp. Code Ann. § 547.328(c) (“Lighted fog lamps may be used with

lower headlamp beams as specified by Section 547.333.”) (emphasis added);


                                         10
Tex. Gov’t Code Ann. § 311.016(1)–(2) (clarifying difference between “may” and

“shall”).

       Further, while Justice may be blind, she is not naïve, and absurd results

are a definite consideration in construing statutes. Boykin v. State, 818 S.W.2d

782, 785 (Tex. Crim. App. 1991); see also Tex. Gov’t Code Ann. § 311.021(3)

(West 2013) (stating that in enacting a statute, it is presumed that a just and

reasonable result is intended), § 311.023 (1), (5) (West 2013) (stating that in

construing a statute, a court may consider the consequences of a particular

construction and the object sought to be obtained). The statutes refer to “fog

lamps,” which implicate their use in fog—a weather condition commonly known to

adversely affect visibility—in addition to headlights. See Tex. Transp. Code Ann.

§ 547.328; see also 19 Tex. Admin. Code § 176.1108(a)(1)(D)(v)(IV) (2013)

(Tex. Educ. Agency Driving Safety Courses of Instruction) (listing fog as a

reduced visibility condition creating a difficult driving environment); 8A Tex. Jur.

3d Automobiles § 627 (2007) (noting that a question as to excessiveness of

vehicle speed may be presented when the evidence shows that highway visibility

is obscured by darkness or other atmospheric conditions, such as fog, rain, or

smoke).

       Officer Dickenson’s explanation for stopping Francis fits not only within the

transportation code sections and case law requiring headlights at night but also

within section 547.333 regarding operating a vehicle with sufficient lighting to




                                        11
illuminate a person or car a safe distance ahead.7 Therefore, Francis committed

a traffic violation when he drove at 2:30 a.m. with only his fog lights illuminated

and without headlights.    The trial court properly denied Francis’s motion to

suppress, and we overrule his four issues.

                                    III. Conclusion

      Having overruled Francis’s four issues, we affirm the trial court’s judgment.



                                                   /s/ Bob McCoy

                                                   BOB MCCOY
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

PUBLISH

DELIVERED: February 27, 2014




      7
      We note that following the fog light specifications under section
574.328(b), a fog lamp could not meet the 1000-foot lighting requirement set out
in section 547.302(a)(2). See Tex. Transp. Code Ann. §§ 547.302(a)(2),
547.328(b)(1)–(2).


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