Alejos v. State

555 S.W.2d 444

• Court: Court of Criminal Appeals of Texas
• Decided: September 14, 1977
• Docket: 52789
• Status: Published

Opinions

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of evading arrest under V.T. C.A., Penal Code, Sec. 38.04 on a plea of not guilty to the court. Punishment was assessed at 15 days confinement in jail and a fine of $125.00, and appellant was placed on 12 months probation.

Officer Richard Garansuay of the San Antonio Police Department was the only witness to testify, and appellant does not challenge the sufficiency of the evidence. At 11:30 p. m. on May 8, 1975, Officer Garansuay observed a car coming in his direction on the wrong side of the road at a high rate of speed.¹ Garansuay swerved, turned his car around and started to chase the vehicle, while turning on the emergency lights and siren of his marked car. When the car driven by appellant did not slow down, Garansuay advised the dispatcher he was chasing a vehicle that wouldn’t stop and a second officer joined the pursuit.

After approximately four blocks, appellant turned onto a quieter street which was not as well lighted as the major traffic artery he had been travelling. Next he pulled into a driveway, turned off his lights and he and his passengers “slouched” down in the car. Both Garansuay and the other officer followed the appellant’s car to the house at which time he was issued a citation for speeding. Garansuay estimated that the entire chase lasted 45 seconds to one minute and covered a distance of five blocks.

In the two grounds of error which form the basis of this appeal appellant contends the trial court erred in denying his motion to quash the complaint on two alternative grounds. First because two statutes deal with the acts constituting the offense, but have different punishment provisions; and alternately, that the State prosecuted appellant under a general penal statute when a specific statute was applicable to the transaction. We agree with appellant’s second contention.

Evading arrest is defined in V.T.C.A., Penal Code, Sec. 38.04, as follows:

“(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to arrest him.”

An offense under Sec. 38.04 is a class B misdemeanor punishable by (1) a fine not to exceed $1,000.00, (2) confinement in jail for a term not to exceed 180 days, or (3) both.

Art. 6701d, Sec. 186, V.A.C.S., sets forth the elements of “fleeing or attempting to elude a police officer” as follows:

“(a) Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle, when given visual or audible signal to bring the vehicle to a stop, shall be guilty of a misdemeanor. The signal given by the police officer may be by hand, voice, emergency light or siren. The officer giving such signal shall be in uniform, prominently displaying his badge of office, and his vehicle shall be appropriately marked showing it to be an official police vehicle.”

Following this Court’s decision in Stein v. State, 515 S.W.2d 104, a violation of Art. 6701d, Sec. 186, is punishable through the general punishment provisions of Art. 6701d, Sec. 143, V.A.C.S., which provides:

“(b) Every person convicted of a misdemeanor for. a violation of any of the provisions of this Act for which another penalty is not provided shall be punished by a fine of not less than One ($1.00) Dollar nor more than Two Hundred ($200.00) Dollars.”

Appellant argues that Sec. 38.04 is a general statute and that the transaction involved in the instant appeal was controlled by the special statute, Art. 6701d, Sec. 186. It is undisputed that the entire transaction occurred while appellant was in the operation and control of a motor vehicle.

Sec. 38.04 requires that a person flee from a known police officer who is attempting to legally arrest that person. It does not specify a particular mode of fleeing; the emphasis is instead on flight from arrest. On the other hand, Art. 6701d, Sec. 186, does not require that the officer be attempting to arrest the person who flees in a motor vehicle. The operative facts under that statute are that the actor flees from a police officer in a motor vehicle. Clearly there are many types of flight which could be involved in Art. 6701d, Sec. 186, which fall far short of flight from arrest. Flight under Art. 6701d, Sec. 186, could involve a routine license check or mere discussion of a traffic violation, as contrasted with an attempted arrest under Sec. 38.04. This Court noted in Wussow v. State, 507 S.W.2d 792, at 793:

“Although an officer is authorized to arrest a person for a traffic violation (Art. 6701d, Sec. 153, Vernon’s Ann.Civ.St.) it does not follow that every discussion of a traffic violation results in an arrest or occurs only after an arrest.”

Having determined that Sec. 38.04 is a broad and general statute applicable to different factual situations, while Art. 6701d, Sec. 186 is more narrowly directed to attempted flight from an officer in a motor vehicle, we conclude appellant was improperly charged under Sec. 38.04. Art. 6701d, Sec. 186 and Sec. 38.04 are in pari materia and when construed together, they can be harmonized and given effect with the special governing the general in event of any conflict. See Hines v. State, Tex.Cr.App., 515 S.W.2d 670; Cuellar v. State, Tex.Cr.App., 521 S.W.2d 277.

For the reasons above stated, we reverse the judgment of the trial court and the prosecution is ordered dismissed.

1 . Garansuay testified that the car was travelling approximately 65 miles an hour in a 30-35 mile an hour zone.