Affirmed and Opinion filed April 18, 2019.




                                           In The

                       Fourteenth Court of Appeals

                                   NO. 14-17-00762-CR


                          DIVA MARIA BABEL, Appellant

                                              V.

                          THE STATE OF TEXAS, Appellee

            On Appeal from the County Criminal Court at Law No. 2
                            Harris County, Texas
                        Trial Court Cause No. 2110183

                                          Opinion
       Appellant Diva Maria Babel pleaded “guilty” and was convicted of driving
while intoxicated.1 Before her plea, appellant moved to suppress evidence on
grounds that the trooper conducting the traffic stop had no reasonable suspicion of


       1
          Appellant pled guilty to the charge of DWI to the Court without an agreed
recommendation, while retaining her right of appeal. The court sentenced appellant to three days
in the Harris County Jail.
criminal activity. The trial court denied the requested relief, and appellant now
challenges that pretrial ruling. We affirm.

                                        I. Background

       On September 5, 2016, just before 8:00 p.m., Texas D.P.S. Trooper A.
Huayamave was on routine patrol on highway FM 529 in Harris County, Texas.
The sky was clear, and traffic was heavy. Huayamave testified that he believed
visibility was not less than 1,000 feet. As shown by State’s Exhibit 1, the video
from Huayamave’s on-board dash camera,2 almost all the other cars on the
roadway had their head lamps illuminated. The street lamps along the roadway
were illuminated. Businesses located on the roadway were illuminated by private
light poles. Although it was clear, the sky was not brightly lit. The dash camera
continuously adjusted to the lighting conditions to accommodate for the decreasing
amount of light in the sky.

       The camera began recording around 7:56 p.m., as Huayamave turned onto
the roadway; appellant’s car was visible in the distance and her headlights were
off. Huayamave passed appellant on the roadway while traveling in the same
direction as appellant. The headlights and taillights of appellant’s car were not
illuminated.    After passing appellant’s vehicle, Huayamave drove ahead, then
stopped in the middle of the road in a turn lane.                As pointed out on direct
examination, only one other car did not have its headlamps illuminated, and passed
Huayamave, while he was in the middle lane. Huayamave testified that he may
have missed another car traveling past him without lights on because at this point,

       2
         State’s Exhibit No. 01 contains two video files. The first video file, found under the
“Camera 0” file, is of footage captured from the dashboard looking forward through the
windshield. Id. The second video file, found under the “Camera 2” file, is footage of the inside
compartment of the patrol vehicle. Id. This second video file only begins after appellant was
placed under arrest. Id

                                               2
he was focused on appellant’s vehicle.          While stopped in the middle lane,
Huayamave watched appellant’s car to see if she was going to activate her lights.
Appellant passed Huayamave’s patrol vehicle and did not have her headlights
illuminated.

      At 7:56 p.m., Huayamave pulled behind Appellant’s car and activated his
emergency lights. Appellant immediately began to pull over. Once appellant
came to a stop in an adjacent parking lot, Huayamave began his investigation. At
7:58 p.m., Huayamave informed appellant that her front headlamps were not
illuminated. Appellant responded in confusion about whether her headlamps were
actually activated or not. Appellant never indicated a belief that she was not
required to have her headlamps illuminated. Appellant asked Huayamave “so
they’re, like, completely off?”      Huayamave indicated the possibility that the
headlamps were “burnt.” Huayamave’s investigation quickly dispelled this
possibility, though, when he reached into appellant’s vehicle and manually
activated the headlights.     At 7:58, Huayamave asked appellant whether she’s
“doing okay.” At 7:59, Huayamave relayed to appellant that he observed her
“driving kind of slowly, too.”        The sky had noticeably darkened since the
beginning of the video. Thereafter, the video shows Huayamave administering a
series of field sobriety tests and placing appellant under arrest.

      On September 05, 2016, appellant was charged by information with the
misdemeanor offense of Class B driving while intoxicated. On June 20, 2017, the
State amended the information to reflect a blood alcohol concentration level of at
least .15, increasing the offense level to a Class A misdemeanor. Id. On June 23,
2017, the trial court held a hearing on the appellant’s motions to suppress. The
trial court denied appellant’s motions to suppress at the end of that hearing, and



                                           3
appellant pled guilty to the offense of Driving While Intoxicated. Appellant was
sentenced to three days in Harris County Jail.

                                   II.    Analysis

      Appellant contends the trial court abused its discretion in denying
appellant’s motion to suppress and motion to find Sections 541.401(5) and
547.302(a)(1) of the Transportation Code unconstitutional.

A.    Motion to suppress

      In her first issue, appellant contends that the trial court abused its discretion
in denying her motion to suppress, on the grounds that Huayamave made a traffic
stop for an offense that was not being committed, namely an alleged traffic law
violation of driving without headlights at nighttime (i.e., 30 minutes after sunset)
or when visibility is less than 1,000 feet. According to appellant, sunset occurred
at 7:37 pm, thus, the earliest time that Huayamave could have pulled appellant over
under Section 547.302 of the Texas Transportation Code is 8:07 p.m. Appellant
contends that the “arrest was made 7 minutes before the law mandated that
appellant turn on her headlights. The stop certainly occurred earlier.”

      The State concedes the entire thirty-minute time period had not actually
expired at the time Huayamave initiated the stop; however, the State argues that
Huayamave had a reasonable, albeit mistaken, suspicion that appellant was
committing the crime of failing to display her lights.

      1.     Standard of review

      When reviewing a trial court’s ruling on a motion to suppress, we apply an
abuse of discretion standard: we overturn the trial court’s ruling only if it is outside
the zone of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922
(Tex. Crim. App. 2011). We use a bifurcated standard of review. Ramirez-

                                           4
Tamayo v. State, 537 S.W.3d 29, 35 (Tex. Crim. App. 2017). When the record
supports the trial court’s determination of historical facts, as well as mixed
questions of law and fact that rely on credibility, we grant the trial court’s
determinations almost total deference. State v. Kerwick, 393 S.W.3d 270, 273
(Tex. Crim. App. 2013). We review de novo the trial court’s application of the law
to the facts. Ramirez-Tamayo, 537 S.W.3d at 35. When, as in this case, the trial
judge does not make formal findings of fact, we uphold the trial court’s ruling on
any theory of law applicable to the case and presume the court made implicit
findings in support of its ruling, if the record supports those findings. Tutson v.
State, 530 S.W.3d 322, 326 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

      Under the Fourth Amendment, an officer must have reasonable suspicion to
justify a warrantless detention that amounts to less than a full custodial arrest.
Kerwick, 393 S.W.3d at 273. An officer may make a traffic stop if the reasonable-
suspicion standard is satisfied. State v. Cortez, 543 S.W.3d 198, 204 (Tex. Crim.
App. 2018).    An officer has reasonable suspicion if the officer has specific,
articulable facts that, combined with rational inferences from those facts, would
lead the officer reasonably to conclude that the person detained is, has been, or
soon will be engaged in criminal activity. Id. We review reasonable suspicion by
considering the totality of the circumstances. Id. This examination is an objective
standard that disregards the subjective intent of the officer and requires only some
minimal level of justification for the stop. Brodnex v. State, 485 S.W.3d 432, 437
(Tex. Crim. App. 2016). An officer’s reasonable mistake does not render a traffic
stop illegal. Heien v. North Carolina, ___ U.S. ___, 135 S. Ct. 530, 532, 536
(2014); Illinois v. Rodriguez, 497 U.S. 117, 185 (1990) (it is not required that
factual determinations made by agents of the government “always be correct, but
that they always be reasonable”).


                                         5
      When a police officer stops an individual without a warrant, the State has the
burden of proving the reasonableness of the stop at a suppression hearing. Cortez,
543 S.W.3d at 204. Because Huayamave arrested appellant without a warrant, the
State had the burden to prove reasonable suspicion for the traffic stop. See id.

      2.     Texas Transportation Code Section 547.302

      The trooper pulled appellant over for suspicion of violating Texas
Transportation Code section 547.302, entitled “Duty to Display Lights,” which
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.
      (b) A signaling device, including a stoplamp or a turn signal lamp,
      shall be lighted as prescribed by this chapter.
      (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.
Tex. Transp. Code § 547.302.        Additionally, the Texas Transportation Code
defines “nighttime” as “the period beginning one-half hour after sunset and ending
one-half hour before sunrise.” Tex. Transp. Code § 541.401(5).




                                          6
       3.       Reasonable suspicion to stop

       In this case, it is undisputed that sunset occurred at 7:37 p.m. It is also
undisputed that Huayamave testified that he arrested appellant around 8:00 p.m.
According to appellant, the arrest was made 7 minutes before the law mandated
that appellant turn on her headlights, and the stop occurred even earlier. Thus,
appellant argues “the stop was illegal as it occurred before the time necessary for
displaying headlights.” The State contends Huayamave reasonably believed it to
be nighttime, thus justifying the stop.3

       “The Fourth Amendment tolerates only reasonable mistakes, and those
mistakes—whether of fact or of law—must be objectively reasonable.”
Heien, 135 S. Ct. at 539; see also Robinson v. State, 377 S.W.3d 712, 720 (Tex.
Crim. App. 2012). Huayamave testified at the time he pulled over appellant, store
lights were on, street lamps were on, and possibly all but one other car’s headlights
were turned on. Huayamave’s testimony is corroborated by the dash camera video.
The trial court commented during the hearing that “it’s totally unreasonable to
expect [Huayamave] to get on his radio and call headquarters [sic] what time does
the sun set tonight” when the trooper is in the middle lane on a five lane road with
moderate to heavy traffic traveling in both directions.4 We agree and conclude that
it was objectively reasonable for an officer in Huayamave’s position to believe
both that thirty minutes had elapsed after sunset, and that appellant’s failure to turn

       3
         The State did not argue that Huayamave was following the second prong of Section
547.302; however, under cross-examination, defense counsel did elicit testimony that the trooper
could see well over 1000 feet in the distance. Thus, the only reason for the stop that the State
relied upon was that the headlights were not activated 30 minutes after sunset.
       4
           The trial court went on to comment:
       All right. And, you know, he said he’s keeping an eye on this vehicle that’s
       coming up behind him. It would be unreasonable for him to get on his radio and
       ask what time does the sun set while he is trying—The number one thing he’s
       thinking is keeping an eye on this vehicle that does not have his lights on.

                                                 7
on her headlights was a violation of Texas law. Because Huayamave’s mistaken
belief of the timing of sunset (approximately eleven minutes) was reasonable under
the totality of the circumstances, the trial court did not abuse its discretion in
determining Huayamave had reasonable suspicion to stop appellant’s car.5 See
Cortez, 543 S.W.3d at 209. We conclude the trial court did not abuse its discretion
in denying appellant’s motion to suppress.

       Appellant’s first issue is overruled.

B.     Motion to find Transportation Code Sections 541.401(5) and
       547.302(a)(1) unconstitutionally vague as applied to appellant
       In her second issue, appellant argues that the trial court abused its discretion
in denying her motion to declare Texas Transportation Code Sections 541.401(5)
and 547.302(a)(1) unconstitutional. Specifically, appellant argues that Section
541.401(5) is unconstitutionally vague because neither “sunset” nor “sunrise” are
defined in the Texas Transportation Code. Thus, appellant contends that “it would
be impossible for a person to know at what point they must display their
headlights” without “looking up the exact time that sunset or sunrise occurs.”

       The State disagrees, maintaining that the term “sunset” is common
throughout the law and common law, and accepted in almost every jurisdiction in
this country. As such, the State maintains the term is not so ambiguous that a
reasonably intelligent person could–or appellant–could not know what it meant.


       5
          The parties do not cite to any Texas cases interpreting the reasonableness of a mistaken
belief in the timing of “sunset.” Two cases interpreting similar statutes provide guidance. First,
Supreme Court for the State of Washington determined that an officer had a reasonable mistaken
belief based on his observations about the time of the stop; he believed it was 30 minutes after
sunset when it was actually 24 minutes after sunset at the time of the stop. State v. Snapp, 275
P.3d 289, 300 (Wash. 2012). The Court of Appeals for the State of Minnesota, similarly, found
that an officer’s good-faith-mistaken belief based on his observations that sunset had occurred.
State v. King, No. A09-1214, 2010 WL 1440277, at *3 (Minn. Ct. App. Apr. 13, 2010) (not
designated for publication).

                                                8
      1.     Standard of review

      A vagueness challenge is applicable to all criminal laws, not just those that
regulate speech. Duncantell v. State, 230 S.W.3d 835, 844 (Tex. App.—Houston
[14th Dist.] 2007, pet. ref’d) (citing Webb v. State, 991 S.W.2d 408, 416 (Tex.
App.—Houston [14th Dist.] 1999, pet. ref’d)).           A statute will be declared
unconstitutionally vague if “its prohibitions are not clearly defined.” State v.
Markovich, 77 S.W.3d 274, 279 (Tex. Crim. App. 2002) (quoting Grayned v. City
of Rockford, 408 U.S. 104, 108 (1972)). The vagueness doctrine, however, is not
designed to convert into a constitutional dilemma the practical difficulties in
drawing criminal statutes general enough to take into account a variety of human
conduct and sufficiently specific to provide fair warning that certain kinds of
conduct are prohibited. Webb, 991 S.W.2d at 416.

      Whenever an attack upon the constitutionality of a statute is presented for
determination, we begin with the presumption that the statute is valid and that the
legislature has not acted unreasonably or arbitrarily in enacting the statute. See Ex
parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978); Morris v. State, 833
S.W.2d 624, 627 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d). The burden
rests upon the individual challenging the statute to establish its unconstitutionality.
Id. It is the duty of this court to uphold the statute if a reasonable construction can
be ascertained which will render the statute constitutional and carry out the
legislative intent. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979);
Morris, 833 S.W.2d at 627.

      A reviewing court must make a two-part inquiry in the examination of a
criminal statute for vagueness. The first inquiry is whether an ordinary, law-
abiding person receives sufficient information from the statute that her conduct
risks violating the criminal law. State v. Fry, 867 S.W.2d 398, 401 (Tex. App.—

                                          9
Houston [14th Dist.] 1993, no pet.). All penal laws must give notice to the
populace about what activity is made criminal, to provide fair notice to persons
before making their activity criminal. Id. (citing Bynum v. State, 767 S.W.2d 769,
773 (Tex. Crim. App. 1989) (en banc)).            A criminal statute need not be
mathematically precise; it need only give fair warning, in light of common
understanding and practices. Id. (citing Grayned v. City of Rockford, 408 U.S.
104, 110 (1972)). A statute is unconstitutionally vague only when no core of
prohibited activity is defined. Id. (citing Briggs v. State, 740 S.W.2d 803, 806
(Tex. Crim. App. 1987)).

      The second inquiry involves a determination of whether the statute provides
sufficient notice to law enforcement personnel to prevent arbitrary or
discriminatory enforcement. Fry, 867 S.W.2d at 401 (citing Bynum, 767 S.W.2d at
773; Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988)). A statute
must be sufficiently definite to avoid the possibility of arbitrary and erratic arrests
and convictions. Id. (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 162
(1972)). Either of these inquiries forms an independent basis for a finding of
vagueness. Id. (citing Adley v. State, 718 S.W.2d 682, 685 (Tex. Crim. App.
1985)).

      A statute is not unconstitutionally vague merely because it fails to define
words or terms used. Fry, 867 S.W.2d at 401 (citing Engelking, 750 S.W.2d at
215). When words are not defined, they are ordinarily given their plain meaning,
unless the statute clearly shows that they were used in some other sense. Id. at
401–02 (citing Daniels v. State, 754 S.W.2d 214, 219 (Tex. Crim. App. 1988)). In
the absence of special definitions, statutory language under attack as vague can be
measured by common understanding and practices or construed in the sense
generally understood. Id. (citing Ely, 582 S.W.2d at 419).

                                          10
      2.     “Sunset” is not unconstitutionally vague

      Contrary    to   appellant’s   contentions,   Texas     Transportation   Code
§ 541.401(5), as implemented through Texas Transportation Code § 547.302(a)(1)
is not unconstitutionally vague as applied here.

      Section 547.302(a)(1) requires, in relevant part, that a vehicle shall display
each lighted lamp and illuminating device “at nighttime…” Tex. Transp. Code
§ 547.302(a)(1). “Nighttime” is defined as “the period beginning one-half hour
after sunset and ending one-half hour before sunrise.” Tex. Transp. Code
§ 541.401(5) (emphasis added). Appellant’s contention that the determination of
“sunset” is “impossible for a person to know” is incorrect.

      A person of common knowledge and reason would understand “sunset” to
be when the sun goes down. The term itself is used with frequency in the law as a
point of reference. See, e.g., Parrish v. State, 134 S.W.2d 271, 272 (Tex. Crim.
1939) (“[w]e think the court was correct in defining nighttime as beginning thirty
minutes after sunset and continuing until thirty minutes before sunrise”); Tex.
Parks & Wild. Code § 31.103 (prohibiting operation of a recreational watercraft 30
minutes after sunset); Tex. Parks & Wild. Code § 59.301 (prohibiting hunting
certain game 30 minutes after sunset); Tex. Gov’t Code § 3100.052 (allowing
counties to adopt juvenile curfews after sunset); Tex. Fin. Code § 59.305 (requiring
ATM’s to be lit after sunset); Tex. Fin. Code § 59.301 (requiring parking lots for
ATMs to be lit after sunset).

      In fact, appellant contended during the motion to suppress hearing that
Huayamave’s stop was illegal because the exact timing of sunset can be discovered
without difficulty, and elicited testimony based on that contention. States that have
addressed the definition of “sunset” have referred to how a citizen can, without
difficulty, discover the timing of sunset. See, e.g., State v. Gresser, 657 N.W.2d
                                         11
875, 883 (Minn. 2003) (boating statute’s reliance on “sunset” was not
unconstitutionally vague); State v. Johnson, 867 P.2d 1090, 1092 (Mont. 1994)
(hunting statute’s reliance on “sunrise” and “sunset” was not unconstitutionally
vague). As such, appellant, or a reasonably intelligent person in appellant’s shoes,
was given a reasonable opportunity to know what the term “sunset” meant. See
Bynum, 767 S.W.3d at 773.            Moreover, the term “sunset” provides law
enforcement with sufficient guidance in their enforcement of the law.           We
conclude Huayamave’s reasonable mistake about the timing of “sunset” does not
invalidate the statute or render it unconstitutionally vague.

      Appellant’s second issue is overruled.

                                  III.   Conclusion

      The judgment of the trial court is affirmed.




                                         /s/    Margaret “Meg” Poissant
                                                Justice




Panel consists of Wise, Jewell, and Poissant

Publish — TEX. R. APP. P. 47.2(b).




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