State of Texas v. Bradley A. McAllister

• Court: Court of Appeals of Texas
• Decided: October 29, 2004
• Docket: 07-03-00405-CV
• Status: Published

Opinion

NO. 07-03-0405-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

OCTOBER 29, 2004

______________________________

THE STATE OF TEXAS, APPELLANT

V. BRADLEY A. McALLISTER, APPELLEE

_________________________________

FROM THE 47^TH DISTRICT COURT OF RANDALL COUNTY;

NO. 46,899-A; HONORABLE DAVID L. GLEASON, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

The State of Texas, appellant, acting by and through the Texas Department of Transportation (TxDOT) appeals from a judgment based on a jury verdict that it take nothing against appellee Bradley A. McAllister on its claim for subrogation pursuant to chapter 417 of the Texas Labor Code Annotated (Vernon 1996), for workers' compensation and other benefits paid for the death of Paris Hood, a TxDOT employee, and that McAllister recover on his counterclaim against the State of Texas, the sum of $7,560 for property damage and $50,000 for physical pain and mental anguish, plus interest and costs. ⁽¹⁾ Presenting two issues, TxDOT contends (1) the Texas Tort Claims Act ⁽²⁾ does not clearly and unambiguously waive its sovereign immunity for McAllister's claim. By four sub-issues, TxDOT contends (A) McAllister's injuries were not caused by the "use" or "operation" of a State motor vehicle; (B) McAllister's claim is barred because he failed to give notice within six months; (C) it did not waive sovereign immunity because Hood's decisions were protected by official immunity; and (D) the Act does not permit McAllister to recover property damage for an injury he did not suffer. By its second issue, TxDOT contends the jury's conclusion that McAllister was not negligent was against the overwhelming weight of the evidence. We reverse and render in part and affirm in part.

During the afternoon hours of February 27, 1998, Hood, while in the course of his employment, was picking up trash along Interstate Highway 27. His TxDOT truck was parked facing north on the shoulder very near the white fog line and the flashing caution lights were in operation. After placing trash in the truck, Hood walked to the left side of the truck and while he was standing on the paved portion of the highway, was struck by a truck driven by McAllister, who was traveling north in the right lane. Hood sustained fatal injuries.

According to witnesses who were also traveling north behind McAllister, McAllister was in the right lane with an adjacent vehicle also driving north in the left lane which prevented him from changing lanes. The evidence established that McAllister was not speeding. A Department of Public Safety Officer who was called to the scene of the accident to investigate concluded that because Hood had walked into the lane of travel McAllister was not at fault.

TxDOT filed suit against McAllister to recover for benefits paid on behalf of Hood in the discharge of its responsibilities under workers' compensation laws. McAllister filed a counterclaim for property damage to the truck he was driving and for personal injuries and mental anguish. In response to the counterclaim, TxDOT plead, among other items, the defense of sovereign immunity under the Act.

In response to question number one, the jury found that Hood's negligence proximately caused the accident and attributed no fault to McAllister. Also, by its answers to questions four and five, the jury awarded McAllister $11,000 (which was reduced in the judgment to $7,650 because the evidence would only support that amount) for property damage to the truck driven by him and $50,000 for his physical pain and mental anguish. After the State's motion to disregard the jury's findings and for judgment notwithstanding the verdict was denied, judgment was rendered on the jury's verdict. TxDOT's motion to set aside the jury's verdict and for new trial was overruled by the trial court.

Briefly restated, TxDOT contends McAllister's claim fell outside the Act because his injuries were not caused by TxDOT's vehicle, he did not give notice of his claim within six months as required by the Act, it did not waive sovereign immunity, Hood's decisions were protected by official immunity, and McAllister could not recover for property damage under the Act. Considering these issues together, we agree.

These contentions focus on the applicability of the Act and whether McAllister's claims were caused by an actionable "use" or "operation" of a motor vehicle owned by the State. Before addressing these issues, we first consider McAllister's contention that TxDOT waived its affirmative defense of sovereign immunity and is now estopped from raising it on appeal. In response to McAllister's counterclaim and in addition to a general denial, the State alleged:

Sovereign Immunity

Plaintiff/Counter-Defendant State has full sovereign immunity both from suit and from liability, save only to the extent of the partial waiver of same given by the Texas Tort Claims Act, (Civil Practice and Remedies Code, Chapter 101), and it hereby pleads and asserts its claim to and defense of sovereign immunity.

Ultimately, the purpose of pleadings is to give the adversary notice of the claims and defenses, as well as notice of the relief sought. Horizon/CMS Healthcare Corporation v. Auld, 34 S.W.3d 887, 897 (Tex. 2000); Perez v. Briercroft Serv. Corp., 809 S.W.2d 216, 218 (Tex. 1991). Immunity from liability is an affirmative defense that must be plead or it is waived. Texas Department of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999); see also Tex. R. Civ. P. 94. In the absence of a special exception to an opponent's pleadings, courts should construe the pleadings liberally in favor of the pleader. Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993); see also Tex. R. Civ. P. 91. McAllister did not specially except to TxDOT's answer nor its special exception filed in response to his counterclaim; thus, the State did not waive sovereign immunity from liability.

Operation or Use

Under section 101.021(1)(A) of the Act, TxDOT is liable to McAllister for his damages if they were proximately caused by Hood's wrongful act or omission or negligence and if they arose from the operation or use of the TxDOT truck. Although the terms operation and use are not defined in the Act, in LeLeaux v. Hamshire-Fannett School Dist., 835 S.W.2d 49, 51 (Tex. 1992), the Court defined "operation" as the "doing or performing of practical work," and "use" to mean "to put or bring into action or service; to employ for or apply to a given purpose."

For sovereign immunity to be waived, the Act requires a nexus between the operation or use of the motor vehicle and the plaintiff's injuries. See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003), citing Tx. Nat. Res. Con. Com'n v. White, 46 S.W.3d 864, 868 (Tex. 2001). The motor vehicle's use must have actually caused the injury. White, 46 S.W.3d at 869. The operation or use of a motor vehicle does not cause the injury if it does no more than furnish the condition that makes the injury possible. Dallas Co. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998). In other words, if the vehicle is only the setting for the injury, immunity for liability is not waived. LeLeaux, 835 S.W.2d at 52; see generally City of Kemah v. Vela, No. 14-03-01091-CV, 2004 WL 1925959, at *4 (Tex.App.-Houston [14th Dist.] Aug. 31, 2004, no pet. h.) (holding that sovereign immunity was not waived when an improperly parked police car in which plaintiff was injured when it was struck by another vehicle was not in use or operation but was only the setting for the injury).

TxDOT argues that its truck was not in use or operation at the time of the accident, while McAllister contends that Hood parked the truck so close to the main traveled portion of the highway that it created an extremely dangerous situation. We agree with TxDOT. The evidence established that TxDOT's truck did not come into contact with the vehicle McAllister was driving and thus, no nexus was shown between it and McAllister's injuries. Rather, his injuries were the result of Hood's misjudgment in standing on the highway. Just as in Vela, the TxDOT truck did no more than furnish the condition that made McAllister's injuries possible when he struck Hood and no liability on the part of TxDOT was proven under section 101.021 of the Act.

Notice

Under the Act a governmental unit is entitled to receive formal, written notice of a claim against it within six months of the incident specifying the damage or injury claimed, the time and place of the incident, and the incident. § 101.101(a). The language of sub-paragraph (a) is mandatory. See University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex. 2004). Under section 101.101(c), the requirement of sub-paragraph (a) is inapplicable if the governmental unit had actual notice and knowledge that its fault produced or contributed to the claimed injury. Loutzenhiser, 140 S.W.3d at 358; Texas Dept. of Criminal Justice v. Simons, 140 S.W.3d 338, 339 (Tex. 2004), citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam). A governmental unit does not acquire actual notice merely by conducting an investigation; it must have actual, subjective awareness of its fault in the incident. Simons, 140 S.W.3d at 348. The purpose of the notice requirement is to ensure prompt reporting of claims in order to enable a governmental unit to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial. Cathey, 900 S.W.2d at 340.

The accident occurred on February 27, 1998. McAllister references a portion of the clerk's record designated "Notice-Correspondence" in support of his contention that TxDOT had been given notice. All but one of the letters reference the property damage claim by Rob Smets and Carla Smets, as insured and owners of the truck McAllister was driving at the time of the accident. On August 4, 1998, McAllister's attorney wrote an Assistant Attorney General generally complaining about the "screening process" in deciding to prosecute a subrogation claim against McAllister to recoup benefits paid on behalf of Hood. Counsel continued in the letter:

Brad McAllister is a fine, decent young man. Like any normal person who cares for people, a tragedy of this kind has seriously affected him personally, mentally and emotionally. He truly needs to get this behind him, and not be forced to relive through the drama of the courtroom the details of this event, and the anguish he will go through from this point up to the time of trial.

No mention is made in the August 4 letter of a claimed injury by McAllister, the time and place of the incident, or the incident that gave rise to the claim as required by section 101.101(a). Further, although TxDOT had investigated the accident, there is no evidence in the record indicating it had actual notice of McAllister's claim or that its fault produced or contributed to the claimed injury. Thus, we conclude that McAllister's failure to comply with the notice requirements barred any action under the Act. Loutzenhiser, 140 S.W.3d at 365.

Hood's Official Immunity

TxDOT argues that it was protected from liability because Hood's decisions fell under the doctrine of official immunity. McAllister contends official immunity does not apply. Official immunity shields government employees and public officials from suits arising from performance of their (1) discretionary duties (2) in good faith (3) within the scope of their authority. See Ballantyne v. Champion Builders, Inc., 47 Tex. Sup. Ct. J. 852, 2004 WL 1533950, at *5 (Tex. July 9, 2004). However, a claimant's failure to give notice under section 101.101 precludes the waiver of official immunity. Johnson v. Nacogdoches County Hosp. Dist., 109 S.W.3d 532, 537 (Tex.App.-Tyler 2001, pet. denied). Having previously concluded that McAllister did not provide formal, written notice of his claim nor establish that TxDOT had actual notice, we need not address whether Hood was entitled to official immunity. We agree with TxDOT that McAllister's claim fell outside the Act and sustain its first issue and four sub-issues.

McAllister's Non-Negligence

By its second issue, TxDOT contends the jury's verdict that McAllister was zero percent responsible for the accident was against the overwhelming weight of the evidence. We disagree. The mere occurrence of an accident does not present evidence of negligence. Gomez v. Adame, 940 S.W.2d 249, 251 (Tex.App.--San Antonio 1997, no writ); Weaver v. U.S. Testing Co., Inc., 886 S.W.2d 488, 490 (Tex.App.--Houston [1st Dist.] 1994, writ denied). The State was required to prove specific acts of negligence by McAllister that proximately caused the accident.

In Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001), the Court discussed the appropriate standard of review of an issue on which the party attacking an adverse finding had the burden of proof. In summary the Court held:

[w]hen a factual sufficiency challenge is presented, the complaining party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Under this review, after considering and weighing all the evidence, we can set aside the verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.

See also Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Raw Hide Oil & Gas v. Maxus Exploration, 766 S.W.2d 264, 266 (Tex.App.--Amarillo 1988, writ denied); Hall, Standards of Review in Texas, 34 St. Mary's L.J. 173-74.

According to the uncontradicted evidence of eye witnesses, while McAllister was driving in the right lane of traffic below the speed limit, another vehicle was driving in the same direction in the left lane making it impossible for him to change lanes. The TxDOT truck was parked on the shoulder near the fog line when Hood walked into the right lane of traffic. One particular witness, a coach from a nearby community, testified:

[w]e were fixing to create or coming upon creating what I call a tight formation.

Moreover, McAllister was not speeding nor was he cited for any traffic violations. The DPS officer who conducted the investigation concluded he was not at fault. Thus, the evidence presented showed that McAllister was driving at a lawful rate of speed, in his lane of traffic and unable to change lanes when Hood walked into his lane. Having reviewed all the evidence, we conclude the jury's finding of zero negligence on McAllister's part is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Issue two is overruled.

Accordingly, that portion of the trial court's judgment awarding Bradley A. McAllister $7,560, plus prejudgment interest in the amount of $3,213 for property damages, and $50,000, plus prejudgment interest in the amount of $21,250 for physical pain and mental anguish, is reversed and judgment is hereby rendered that Bradley A. McAllister take nothing against the State of Texas acting by and through the Texas Department of Transportation; in all other respects, the judgment is affirmed.

Don H. Reavis

Justice

1. The truck driven by McAllister was owned by a third party. By his counterclaim, McAllister sought recovery of the property damage for the use and benefit of the third party.

2. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001 - 101.109 (Vernon 1997 & Pamph. Supp. 2004-05), hereafter referred to as the Act.

admissibility. Montgomery, 810 S.W.2d at 389. The evidence of the guns and knife was so closely connected with the events of the arrest that it was admissible to aid the jury in understanding the circumstances of the charged crime. The evidence was "same transaction" evidence in nature, and the trial court did not abuse its discretion in determining that the probative value of the evidence exceeded its prejudicial effect. Accordingly, we overrule appellant's fourth and fifth issues.

IV. JURY ARGUMENT

In his sixth issue, appellant contends that the trial court erred in denying his request for a mistrial because the State made a jury argument outside the record during the guilt or innocence stage of trial:

Prosecutor: Now, if you're out to sell drugs, just like selling anything else. You're going to sell shirts. You've got to have some smalls. You've got to have some larges. Well, what do you have here? We've got some smalls. We've got some larges. These are exactly what Dale Gregg sees all the time in years of experience about drug trafficking in Lubbock, exactly right there.

Ladies and gentlemen of the jury, these witnesses know exactly what they're talking about. It wasn't Dale Gregg's thought that maybe this man had the intent to deliver. He was sure, no doubt, somebody that does this is out to deliver drugs.

Defense: Your Honor, I'm going to object. Officer Gregg never said that this defendant, his opinion, had the intent to deliver.

The trial court sustained the objection and instructed the jury to disregard the comment. Appellant's request for a mistrial was denied.

Jury arguments must fall into one of four general areas: 1) summation of the evidence, 2) reasonable deduction from the evidence, 3) answer to the argument of opposing counsel, and 4) plea for law enforcement. Walker v. State, 664 S.W.2d 338, 340 (Tex.Crim.App. 1984); Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App. 1973). It is improper for a prosecutor to call upon the jury to speculate as to activities of the accused that are not shown nor inferable from the evidence. Walker, 664 S.W.2d at 340.

Although the State's expert did not expressly state that he had "no doubt" regarding appellant's intent to deliver cocaine, the record reflects a portion of his testimony as follows:

Q: If--for example, let's say somebody had in their possession over seven grams of cocaine packaged as you've seen in State's Exhibits 5 and 6, would you believe that person has that for personal use?

A: No.

Q: In your opinion, why would someone have drugs in that amount packaged that way?

A: To resell.

***

Q: Are those particular sizes of packaging, is that common sizing for drug dealing in Lubbock, Texas?

A: Sure. Yes.

Q: Now, are--is it common to deal cocaine and package it using the corners of plastic baggies?

A: Yes.

When considering the entire record, it is not unreasonable to infer that the expert believed appellant possessed the cocaine with the intent to deliver; therefore, the argument was not improper. Even if we assume that the argument was improper, however, the argument is not so inflammatory as to be incurable. The trial court's instruction to the jury cured any error. Carter v. State, 614 S.W.2d 821, 823 (Tex.Crim.App. 1981). Appellant's sixth issue is overruled.

In his tenth issue, appellant contends that during the punishment phase of trial, the trial court erred in overruling his request for a mistrial because the State made an improper plea for law enforcement. Appellant's complaint is based on the following jury argument and objection:

Prosecutor: You know, I was thinking about voir dire on the first day of this trial and what the general consensus of the people that attended [sic] and were a part of the jury pool. The overwhelming majority of people expressed the idea that protecting society ---

Defense: Your Honor, I'm going to object to this argument; one, being outside the record; two, being an improper plea as to community expectations.

The trial court sustained the objection and instructed the jury to disregard the comment. Appellant's request for a mistrial was denied.

The State may make a proper plea for law enforcement, including arguing the relationship between the jury's verdict and the deterrence of crime in general, arguing that juries should deter specific crimes by their verdicts, and arguing the impact of the jury's verdict on the community. Borjan v. State, 787 S.W.2d 53, 55-56 (Tex.Crim.App. 1990). However, the State is not permitted to argue that the community or any particular group in the community demands or expects a verdict of guilty or a specific punishment. Id. at 56.

Prior to defense counsel's objection, the prosecutor made an incomplete statement about what the majority of people expressed during voir dire prior to jury selection, and there is nothing in the record reflecting specific demands or expectations of the community. In Cortez v. State, 683 S.W.2d 419, 421 (Tex.Crim.App. 1984), the court quoted numerous cases where juries were improperly asked to follow community expectations, rather than the law. None of the language condemned by Cortez was used in this instance. If we assume that the argument was improper, the argument is not so inflammatory as to be incurable. The trial court's instruction to disregard cured any error. Carter, 614 S.W.2d at 823. Appellant's tenth issue is overruled.

In his eleventh issue, appellant contends that during the punishment phase of trial, the trial court erred in overruling his objection after the State made a harmful jury argument that invited the jurors to speculate about matters outside of the record. Appellant's complaint is based on the prosecutor's argument as follows:

[Defense counsel] wants to talk about how, well, no one was shot, no one was killed, he wasn't caught actually dealing any drugs. Do not reward this man because the police officers happened to stop him before something worse happened.

You know, what is somebody thinking, what are their intentions when they have something like this around in their drug business?

Prior to the prosecutor's remark, defense counsel had made the following argument to the jury:

You can take into consideration this is a nonviolent crime. We're not talking about a murder where someone's life has been taken. We're not talking about aggravated assault where somebody has been seriously injured. We're not talking about a sexual assault or an aggravated assault. And I think you need to keep that in prospective [sic] for this particular case.

Based on this record, it would not be unreasonable to infer appellant's intent to use the guns in the course of dealing drugs, if necessary. Guns are designed to shoot projectiles, which in turn are designed to cause damage to what they strike. The prosecutor's argument is not an unreasonable inference to be drawn from the evidence and thus is not improper. Walker, 664 S.W.2d at 340. Further, the prosecutor's remark was in response to defense counsel's argument and was not improper. Id.; Alejandro, 493 S.W.2d at 231. Appellant's eleventh issue is overruled.

V. EVIDENCE OF EXTRANEOUS OFFENSE

DURING PUNISHMENT PHASE OF TRIAL

In his seventh, eighth, and ninth issues, appellant contends that the trial court erred during the punishment phase of trial by admitting evidence of an extraneous offense involving appellant's possession of cocaine. Appellant claims the evidence was obtained as the fruit of a traffic stop in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Texas Constitution, and admitted into evidence in violation of his rights under the Constitutions. Appellant also contends that admission of the evidence was error because Article 38.23 of the Texas Code of Criminal Procedure requires exclusion of evidence obtained in violation of any provisions of the laws or Constitution of Texas or of the laws or Constitution of the United States.

During presentation of evidence on punishment, the State introduced evidence obtained as a result of a traffic stop of a vehicle in which appellant was a passenger. The stop occurred on September 11, 1997, at 3:03 a.m., in the 5400 block of the northbound access road to Interstate Highway 27 in Lubbock. The police officer who stopped the vehicle in which appellant was a passenger and who arrested appellant gave no reason for the stop other than the fact that the vehicle had its lights on bright:

Prosecutor: And why did you stop this vehicle?

Witness: For driving with its lights on bright.

After he stopped the vehicle, the officer shined his flashlight into the vehicle. He did not see anything suspicious. Because the officer observed appellant making "furtive gestures" like he might be placing something in the floorboard or under the car seat, or reaching for something in the floorboard or under the car seat, the officer was suspicious that appellant might have a weapon. Based on his suspicion, he requested appellant to exit the vehicle. The officer saw appellant reach into his front pants pocket and toss a "little plastic baggy" on top of a jacket in the backseat floorboard. The officer testified that the baggy was not located on top of the jacket when he first shined his flashlight into the vehicle. The baggy was recovered and appellant was arrested. The State's expert testified that the bag contained cocaine, which, including adulterants and dilutants, weighed .58 grams.

In responding to appellant's issues, the State acknowledges that when a search or seizure occurs without a warrant, the burden of proof is on the State to prove the reasonableness of the search or seizure. Referring to the stop of the vehicle as an investigatory stop, the State further acknowledges that to justify the stop, the officer must have possessed specific articulable facts which could reasonably have led him to suspect that the vehicle or an occupant of the vehicle had been, was, or soon would be involved in criminal activity. The State refers us to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App. 1997). The State attempts to justify the stop by asserting that failure to dim the headlights of an automobile to oncoming traffic violates Tex. Transp. Code Ann. § 547.333(c) (Vernon 1999). ⁽²⁾ Thus, the State reasons, because a vehicle may be stopped and detained for a traffic violation, ⁽³⁾ the vehicle in which appellant was a passenger was legally stopped. The State also cites section 547.305(a) of the Transportation Code as "relevant" to the legality of the stop. Section 547.305(a) provides that a motor vehicle light with a beam brighter than 300 candlepower shall be directed so that no part of the beam strikes the roadway more than 75 feet from the vehicle. However, the State does not reference evidence in the record to support its position with respect to section 547.305(a), nor does the State present argument showing how the stop was a violation of, and therefore justified by, such section.

The Fourth Amendment to the United States Constitution protects persons from unreasonable searches and seizures. Elkins v. United States, 364 U.S. 206, 222, 102 S.Ct. 1319, 4 L.Ed.2d 1669 (1960); Davis, 947 S.W.2d at 244. Evidence obtained by a search and seizure in violation of the Constitution is inadmissible at a criminal trial of the person whose constitutional rights were violated. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Texas courts follow the guidance of the United States Supreme Court when interpreting the federal constitution and the rights thereunder. State v. Guzman, 959 S.W.2d 631, 633 (Tex.Crim.App. 1998).

Article I, Section 9 of the Texas Constitution recognizes the right of the people to be secure from unreasonable searches and seizures. Hulit v. State, 982 S.W.2d 431, 434 (Tex.Crim.App. 1998). The test for whether a search or seizure violates Article I, Section 9 of the Texas Constitution is whether, viewing the totality of the circumstances and after considering the public and private interests that are at stake, the search or seizure was unreasonable. Id. at 436, 438. The Texas Constitution does not require exclusion of physical evidence seized in violation of Article I, Section 9. Welchek v. State, 93 Tex. Crim. 271, ___, 247 S.W. 524, 529 (1922).

Article I, Section 9 of the Texas Constitution does not encompass a more stringent standard than the Terry standard which is used to evaluate a temporary investigative stop of a vehicle or its occupants under the Fourth Amendment to the federal constitution. Rhodes v. State, 945 S.W.2d 115, 117 (Tex.Crim.App. 1997). Because the Fourth Amendment of the federal constitution affords appellant as much or more protection than Article I, Section 9 of the Texas Constitution, we analyze appellant's complaints under the federal Terry standard. If the stop of the vehicle and subsequent actions of the officer are not in violation of the federal Fourth Amendment and the Terry standards, they do not violate Article I, Section 9 of the Texas Constitution. Rhodes, 945 S.W.2d at 117.

An investigatory stop of a vehicle or person by the police does not violate the Fourth Amendment if articulable facts support a reasonable suspicion that the vehicle or person stopped has been or is involved in criminal activity. United States v. Cortez, 449 U.S. 411, 421-22, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Sanders v. State, 992 S.W.2d 742, 748-49 (Tex.App.--Amarillo 1999, pet. ref'd). A "reasonable suspicion" exists if a reasonable person in the position of the officer making the stop could suspect that the vehicle or person stopped has been or is connected to criminal activity. United States v. Cortez, 449 U.S. at 421-22; Sanders v. State, 992 S.W.2d at 748-49. The subjective thoughts and intentions of the officer making the stop are not determinative of whether the articulable facts support a reasonable suspicion. Whren v. United States, 517 U.S. 806, ___, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). The Fourth Amendment standard is an objective standard based upon the record presented. Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 1661-62, 134 L.Ed.2d 911 (1996).

Generally, a passenger does not have a possessory interest in an automobile and therefore lacks standing to complain of its search because there is no infringement of his expectation of privacy. See Rakas v. Illinois, 439 U.S. 128, 148-49, 99 S.Ct. 421, 433, 58 L.Ed.2d 387 (1978). A vehicular stop, however, results in the seizure of both the driver and the passenger. Whren, 517 U.S. at ___, 116 S.Ct. at 1772; United States v. Roberson, 6 F.3d 1088, 1091 (5th Cir. 1993), cert. denied, 510 U.S. 1204, 114 S.Ct. 1322, 127 L.Ed.2d 671 (1994). Thus, an automobile stop is subject to the constitutional requirement that it not be unreasonable under the circumstances. Whren, 517 U.S. at ___, 116 S.Ct. at 1772. The passenger of a stopped automobile has standing to challenge his or her seizure as unconstitutional. Roberson, 6 F.3d at 1091; see Lewis v. State, 664 S.W.2d 345, 348 (Tex.Crim.App. 1984). If a traffic stop was unlawful, evidence resulting from the stop and any subsequent search is tainted and inadmissible. Roberson, 6 F.3d at 1092; Robinson v. State, 866 S.W.2d 649, 650 (Tex.App.--Houston [14th Dist.] 1993, pet. ref'd); see Mapp, 367 U.S. at 655.

The State bears the burden of proving the legality of warrantless seizures, warrantless searches and warrantless arrests. McVickers, 874 S.W.2d at 664. A Fourth Amendment seizure occurs when a police officer stops the freedom of movement of a person through intentionally-applied actions. Id. An officer may lawfully stop and detain a vehicle when the officer has probable cause to believe a traffic violation has occurred. Whren, 517 U.S. at ___, 116 S.Ct. at 1772; United States v. Shabazz, 993 F.2d 431, 435 (5^th Cir. 1993); Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992). A traffic violation is committed when a vehicle's headlights are not appropriately dimmed to oncoming traffic or to another vehicle being approached from the rear. Tex. Transp. Code Ann. § 547.333(c) (Vernon 1999).

The standard of review on appeal, and therefore the amount of deference we afford to the trial court's rulings, generally is determined by which judicial actor is in a better position to decide the issue. Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985); Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App. 1997). Appellate courts afford almost total deference to a trial court's determination of historical facts that the record supports, especially when the trial court's findings are based on an evaluation of credibility and demeanor. Id. at 89; See Ornelas, 517 U.S. 690,__, 116 S.Ct. at 1663. Appellate courts afford the same amount of deference to trial courts' rulings on application of law to fact questions if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. As to the foregoing two categories of rulings, we view the record and evidence in the light most favorable to the trial court's ruling. Id. For purposes of Fourth Amendment analysis we give appropriate deference to the trial court's determination of historical facts, but we review the decision of the trial court de novo as to whether the historical facts, viewed from the standpoint of an objectively reasonable person so situated as was the police officer, amount to "reasonable suspicion" that the vehicle or a person in it has, is, or will be, engaged in criminal activity. See Ornelas, 517 U.S. at ___, 116 S.Ct. at 1661-62; Guzman, 955 S.W.2d at 89.

There is no evidence in the record establishing that the vehicle in which appellant was a passenger failed to dim its headlights to oncoming traffic, nor that the vehicle failed to dim its lights when approaching another vehicle from the rear. The record contains no evidence of whether the access road on which appellant's vehicle was stopped had multiple traffic lanes or had only a single lane. No evidence was presented as to whether the vehicle in which appellant was riding had passed other vehicles going in the opposite direction, or whether it was following other vehicles. The record does not show whether the arresting officer was stopped beside the roadway when he observed the vehicle in which appellant was riding to have its headlights on bright, whether he drove up behind the vehicle and observed the bright headlights, whether he passed the vehicle going in the opposite direction on the access roadway, or whether he was perhaps on the interstate highway when he observed the vehicle's bright lights. The State's position that a traffic violation justified the officer's stop of the vehicle in which appellant was riding is not valid. Further, for purposes of justifying a Fourth Amendment investigatory stop, the fact that an automobile is being operated on an access road to an interstate highway at 3:00 a.m. with its headlights on bright is not sufficient to raise a reasonable suspicion that it or one of its occupants is, has been, or soon will be, involved in criminal activity.

Because the vehicle was not being operated in violation of a traffic law, and the State did not prove that the officer possessed articulable facts which could create a reasonable suspicion that the vehicle or one of its occupants was, had been, or soon would be, involved in criminal activity, the traffic stop of the vehicle and the resultant seizure of appellant violated appellant's rights under the Fourth Amendment to the United States Constitution. The evidence that appellant possessed cocaine was obtained in violation of appellant's Fourth Amendment rights. The evidence was inadmissible on the basis of the exclusionary rule of Mapp and its progeny, and on the basis of Tex. Crim. Proc. Code Ann. art. 38.23(a) (Vernon 1979 & Supp. 2000). The trial court erred in admitting the evidence.

Having concluded that the trial court erred in admitting evidence derived from a violation of appellant's Fourth Amendment rights, we must determine whether the error requires reversal of the judgment as to punishment. Texas Rule of Appellate Procedure 44.2 provides the standard by which we are guided.

If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse the judgment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a). A constitutional error within the meaning of Rule 44.2(a) is an error that directly offends against the United States Constitution or the Texas Constitution without regard to any statute or rule that might also apply. Tate v. State, 988 S.W.2d 887, 890 (Tex.App.--Austin 1999, pet. ref'd). With respect to the erroneous admission or exclusion of evidence, constitutional error is presented only if the correct ruling was constitutionally required. Id. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b).

Certain federal constitutional errors labeled by the United States Supreme Court as "structural" errors ⁽⁴⁾ require reversal of the case without consideration of whether the error caused harm. See Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). Such cases are categorically immune from harmless error review. Fulminante, 499 U.S. at 309-10; Cain, 947 S.W.2d at 264. Additionally, if the effects of an error in a particular case defy harmless error analysis or the data is insufficient to conduct a meaningful harmless error analysis, the error will not be proven harmless, Fulminante, 499 U.S. at 309-10; Cain, 947 S.W.2d at 264, whether the error is constitutional or non-constitutional. See Heard v. State, 995 S.W.2d 317, 321-22 (Tex.App.--Corpus Christi 1999, pet. ref'd). However, the erroneous admission of evidence obtained in violation of Fourth Amendment rights has not been declared by the Supreme Court to be a "structural" error, see Gonzales v. State, 994 S.W.2d 170, 171 n.4 (Tex.Crim.App. 1999), nor is this the type of record which defies harmless error analysis for the error in question. See Heard, 995 S.W.2d at 321-22. Therefore, we proceed to a harmless error analysis pursuant to Rule 44.2.

We first determine if the error in admitting evidence was constitutional error as contemplated by Rule 44.2(a). In Mapp, the Supreme Court held that the federal constitution requires that evidence obtained in violation of an accused's Fourth Amendment right to privacy be excluded from trial. Mapp, 367 U.S. at 655. Various opinions of the Court and of individual justices subsequent to Mapp have posited that the exclusionary rule which was explicitly held to be of constitutional origin by Mapp was not necessarily of such genesis. For example, in United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), the Supreme Court stated that the exclusionary rule is a judicially-created means of deterring illegal searches and seizures. In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Court considered whether state prisoners making claims that they were convicted because evidence procured by unlawful searches and seizures was admitted at their trials should be allowed to assert a constitutional violation claim in federal habeas corpus proceedings. The Court reviewed the development of the exclusionary rule which was made applicable to the states by Mapp. Stone, 428 U.S. at 482-84. At the outset of its review the Court noted that the exclusionary rule was a judicially-created means of effectuating the rights secured by the Fourth Amendment and that prior to Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921), no barrier existed to the introduction in criminal trials of evidence obtained in violation of the Amendment. Stone, 428 U.S. at 482. The Court also noted that in Mapp only four justices adopted the view that the Fourth Amendment itself requires exclusion of unconstitutionally-seized evidence in state criminal trials; that Justice Douglas concurred; and that Justice Black concurred on the basis that the Fourth Amendment alone was not sufficient basis for the exclusionary rule, but that the rule emerged when the Fourth and Fifth Amendments were considered together. Id. at 484 n.21. The Court then forthrightly stated that "Post-Mapp decisions have established that the [exclusionary] rule is not a personal constitutional right." Id. at 486.

Language in the recent decision of Pennsylvania Bd. of Probation and Parole v. Scott, __U.S.__, 118 S.Ct. 2014, __ L.Ed.3d__(1998) directly addresses the issue which we must answer in determining whether the admission of the illegally-seized evidence at appellant's trial was federal constitutional error as referred to by Rule 44.2(a). In Scott, the Court considered whether the rule excluding evidence seized in violation of the Fourth Amendment applies in state parole revocation hearings. The Court held that the rule does not so apply. In beginning its discussion of law surrounding the issue, the Court succinctly and clearly stated its position on the question now before us: "We have emphasized repeatedly that the State's use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution." __ U.S. at __, 118 S.Ct. at 2019. We conclude that the trial court's error in admitting evidence obtained in violation of appellant's Fourth Amendment rights did not directly offend the United States Constitution, was not required by the Constitution itself, and therefore was not federal constitutional error for purposes of Rule 44.2(a). See Tate, 988 S.W.2d at 890.

As we have previously noted, the Texas Constitution does not require exclusion of physical evidence seized in violation of Article I, Section 9. Welchek v. State, 93 Tex. Crim. 271,__, 247 S.W. 524, 529 (1922). Even if the cocaine had been obtained from appellant in violation of his rights under the Texas Constitution, a question we do not decide, the admission of the evidence at trial would not have been Rule 44.2(a) constitutional error based on its being a direct offense to, or exclusion of the evidence being required by, the Texas Constitution. See Tate, 988 S.W.2d at 890.

Because the error in admitting the evidence was not constitutional error, we use the standard of Rule 44.2(b) to determine whether the error warrants reversal. Under Rule 44.2(b) an error affects a substantial right of the defendant when the error has a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). A criminal conviction will not be reversed for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998).

The record shows that appellant was in possession of two plastic bags containing smaller bags of cocaine. In the residence where appellant was sleeping when he was arrested, the police found both loaded and unloaded guns, ammunition, a knife, scales and other obvious drug paraphernalia. Testimony was given to the effect that drugs packaged like those seized from appellant were commonly part of drug dealing activities. During the punishment phase of trial, the State produced evidence of other offenses by appellant in addition to evidence of his cocaine possession. The other offenses included a Class A misdemeanor assault offense, three Class B misdemeanor theft offenses, a Class A misdemeanor offense of unlawfully carrying a weapon, and a third-degree felony offense of burglary of a vehicle. Approximately one and one-half years before his arrest on the charges for which he was on trial, appellant had been sentenced to five years in prison, probated for five years. During final summation, the prosecutors reminded the jury of how recently appellant appeared in court for sentencing for another crime and how little he seemed to be affected by his experience. Evidence of an arrest for drug possession occurring after the date of the crime for which appellant was on trial could have been very important to a jury in determining appellant's sentence. We note, however, that in final summation appellant's counsel argued to the jury that the cocaine possessed by appellant was illegally seized and that the court's charge instructed them not to consider such evidence if the jury found that the evidence was illegally obtained. The possible punishment range for appellant's crime was confinement for five years to ninety-nine years and a fine of up to ten thousand dollars. The prosecutors urged the jury to assess a minimum of forty-five years confinement as punishment. Yet the jury assessed only twenty-five years confinement and a fine of $6,000. Upon this record we conclude that the effect of the trial court's error in admitting the illegally-obtained evidence was not substantial and injurious, but was slight, at most, and therefore must be disregarded. Tex. R. App. P. 44.2(b).

The judgment is affirmed.

Phil Johnson

Publish.

1. Section 481.123(a) provides that a controlled substance analogue is considered to be a controlled substance listed in Penalty Group 1 or 1-A if the analogue in whole or in part is intended for human consumption and:

(1) the chemical structure of the analogue is substantially similar to the chemical structure of a controlled substance listed in Schedule I or Penalty Group 1 or 1-A; or

(2) the analogue is specifically designed to produce an effect substantially similar to or greater than the effect of a controlled substance listed in Schedule I or Penalty Group 1 or 1-A.

Section 481.123(g) further provides that this section does not apply to: (1) a controlled substance.

Section 481.112 provides in part:

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally manufactures, delivers, or possesses with intent to manufacture or deliver a controlled substance listed in Penalty Group 1.

* * * * *

(d) An offense under Section (a) is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams.

Tex. Health & Safety Code Ann. (Vernon Supp. 2000).

2. Section 547.333(c) provides:

(c) 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 reveal a person or vehicle at a safe distance ahead of the vehicle, except that:

(1) an operator approaching an oncoming vehicle within 500 feet shall select:

(A) the lowermost distribution of light or composite beam, regardless of road contour or condition of loading; or

(B) a distribution aimed so that no part of the high-intensity portion of the lamp projects into the eyes of an approaching vehicle operator; and

(2) an operator approaching a vehicle from the rear within 300 feet may not select the uppermost distribution of light.

3. McVickers v. State, 874 S.W.2d 662, 664 (Tex.Crim.App. 1993).

4. See Gonzales v. State, 994 S.W.2d 170, 171 n.4 (Tex.Crim.App. 1999) for a list of classes of cases in which the Supreme Court has found "structural" errors.