Spence v. State

325 S.W.3d 646

Tex. Crim. App.

2010

Check Treatment

Tawin SPENCE, Appellant, v. The STATE of Texas.

No. PD-1458-09.

Court of Criminal Appeals of Texas.

Sept. 15, 2010.

or other contact deemed necessary by [the expert] in performance of her duties....” Further, the court will hold a hearing if a party objects to the recommendations relating to whether an evaluation should be performed on a party or child. Accordingly, the expert‘s role as demonstrated by the trial court‘s order does not interfere with Scheller‘s constitutional rights.

Scheller is entitled to mandamus relief because the trial court abused its discretion in issuing temporary orders for grandparent access. Pemberton did not meet the burden required to divest a parent of control and autonomy in making parenting decisions. This is irremediable error that warrants mandamus relief. See

Derzapf, 219 S.W.3d at 334-35. However, the trial court did not err in appointing an expert to serve as guardian ad litem to the children and as a psychologist to evaluate the case and make recommendations to the court regarding the children‘s best interests. Accordingly, without hearing oral argument, we conditionally grant mandamus relief and direct the trial court to lift the temporary order permitting grandparent access. See TEX.R.APP. P. 52.8(c), 59.1. We are confident that the court will comply, and the writ will issue only if it does not.

Maxwell C. Peck III, Amarillo, for Appellant.

Jeffrey S. Ford, Asst. Crim. D.A., Lubbock, Jeffrey L. Van Horn, State‘s Attorney, Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court, in which KELLER, P.J., PRICE, WOMACK, JOHNSON, KEASLER, and HOLCOMB, JJ., joined.

We granted review to resolve a conflict between courts of appeals regarding whether a license plate must be displayed at the front (e.g., the front bumper) of a car or whether it is sufficient to be displayed somewhere else, such as inside the front windshield.¹ In this case, the Amarillo Court of Appeals held that the front license plate must be displayed at the foremost area of the car.² The Austin Court of Appeals, in

State v. Losoya, held that the Texas Transportation Code does not require the display of a license plate on the front bumper.³ We conclude that the plain language of Texas Transportation Code § 502.404(a) requires that a license plate be displayed at the foremost part or front of a vehicle, most commonly the front bumper. We also hold that the trial court did not err in declining to give an Article 38.23 jury instruction because there was no factual dispute for the jury to resolve; the requirement for the proper location of a license plate is a question of law, not fact. We therefore affirm the judgment of the court of appeals.

I.

A. Background Facts.

Appellant was charged with possession of cocaine that Lubbock Police Officer Shane Bledsoe found during a pat-down search for weapons after he stopped appellant for traffic violations.

Around 1:00 a.m. on September 23, 2006, Officer Bledsoe saw a Chevrolet Impala with “blue sparkle paint with white racing stripes and large wheels” parked in the driveway of a known drug house. The officer circled the block, and, as he approached the house a second time, he saw the Impala backing out. As Officer Bledsoe drove past the Impala, he saw that there was no front license plate on it. The Impala “had a silver chrome looking decorative plate on the front, it didn‘t have a license plate on the front.” The officer testified that he pulled appellant over for the license plate violation and for illegally parking in the driveway by blocking the sidewalk.

Officer Bledsoe said that, as he “approached the vehicle, [he] observed the (license) plate sitting in the windshield.” Before the officer could explain the reason for the traffic stop, appellant told Officer Bledsoe that “he already knew why, for the license plate, and advised me that he had just gotten a ticket ... for the same violation.” Because appellant could not produce a driver‘s license, Officer Bledsoe asked him to step out of the car while he checked appellant‘s license for warrants. While doing a routine pat-down search, the officer felt a bulge, which he believed to be drugs, in the space between appellant‘s crotch and belt. He placed appellant in the back of his patrol car and recovered the baggie of cocaine after a backup officer arrived.⁴

Appellant testified at trial and disputed the vehicle violations. Appellant denied parking on the sidewalk and explained that “my car was parked right behind [the homeowner‘s car], so there would be no reason for me to be out here where I would have to obstruct the sidewalk in any kind of way.” Appellant stated that his front license plate was “all the way up in front of the front windshield” and, in his opinion, it was very visible from the street. He also confirmed his initial conversation with Officer Bledsoe. “As soon as he had came to the car, I told him—because I thought that‘s what he had pulled me over for, for the license plates ... I let him know ... the license plate is right here ... up in the window.”

At the close of evidence, appellant‘s counsel objected to the jury charge and provided two proposed instructions: First, he requested that the jury be instructed that “it is not a violation of [Section 502.404(a)] of the Transportation Code to have a front license plate in the front windshield.” Second, he requested an article 38.23 jury instruction on Transportation Code § 545.302⁵ because of the factual dispute of whether appellant was parked on the sidewalk. The trial judge denied both requests, reasoning that “if there‘s more than one reason for a stop, and the Court concludes that there is no legal dis-pute as to that stop, then there should not be a 38.23 issue submitted.”⁶

The jury found appellant guilty of possession with intent to deliver a controlled substance weighing between 200 and 400 grams. Appellant pled true to a previous drug conviction, and the trial judge sentenced him to 60 years in prison.

B. The Court of Appeals Decision.

On appeal, appellant argued that the trial court erred in denying his article 38.23 jury instruction. Relying on

State v. Losoya,⁷ he argued that, by testifying at trial that his license plate was clearly visible through the windshield, he raised a disputed fact issue entitling him to the 38.23 instruction. In Losoya, the Austin court held that wedging a license plate between the dashboard and the windshield “is not inconsistent with the language or purpose of” Section 502.404(a).⁸ Appellant also argued that his trial testimony raised a disputed fact issue regarding whether he had parked on the sidewalk. In either case, if the jury credited his testimony, it should have been instructed to disregard the evidence of cocaine.

The Amarillo Court of Appeals held that Texas Transportation Code Section 502.404(a) requires that the front license plate be affixed “where the car begins, i.e., the foremost area of the vehicle.”⁹ Because appellant‘s front license plate was not so located, “the officer was not re-quired to find some other reason to detain him after discovering the plate‘s location. Nor was the trial court obligated to in-struct the jury otherwise.”¹⁰ The Court of Appeals noted that, while there was a dis-pute about whether the license plate could readily be seen, both parties agreed that the plate was located in between the dash-board and the windshield. Thus, the only issue was whether that is a permissible location under Section 502.404(a). The court explained that the term “front” as used in the statute was not ambiguous and should be defined in accordance with its common usage. It explained that common expressions, such as “front page,” “front of the line,” or “storm front,” connote “the idea of something preceding something else, or of the beginning of an object.”¹¹ In “appending the preposition ‘at’ before the phrase ‘front and rear,’ the legislature effectively described a location as opposed to a direction or ability to sense.”¹² Final-ly, the court noted that, if the purpose of the statute is to facilitate vehicle identifica-tion, permitting the license plate to be displayed anywhere in the front half of the vehicle, so long as it can be seen, impedes this purpose.¹³

II.

The question before this Court is one of statutory construction concerning Section 502.404(a) of the Texas Transportation Code. That section, titled “Operation of a Vehicle Without License Plate or Registra-tion Insignia,” provides:

A person commits an offense if the per-son operates on a public highway during a registration period a passenger car or commercial motor vehicle that does not display two license plates, at the front and rear of the vehicle.

Specifically, does the text “at the front ... of the vehicle” permit a license plate to be displayed anywhere in the front half of the car or truck or only at its foremost part?

A. Statutory Construction.

Statutory construction is a ques-tion of law; therefore our review is de novo.¹⁴ As we recently stated in

Mahaf-fey, in interpreting statutes, we focus on the literal text to determine the objective meaning of that text at the time of its enactment.¹⁵ We follow this principle be-cause (1) “the text of the statute is the law“; (2) “the text is the only definitive evidence of what the legislators ... had in mind when the state was enacted into law“; and (3) “the legislature is constitu-tionally entitled to expect that the judicia-ry will faithfully follow the specific text that was adopted.”¹⁶ Therefore, “if the meaning of the statutory text ... should have been plain to the legislators who vot-ed on it, we ordinarily give effect to that plain meaning.”¹⁷ We depart from this plain-meaning rule only when “application of a statute‘s plain language would lead to absurd consequences” or “the language is not plain but rather ambiguous.”¹⁸

B. Under the Plain Language of Sec-tion 502.404(a) of the Texas Trans-portation Code, a License Plate must Be Displayed at the Beginning or Foremost Part of a Vehicle, Most Commonly the Front Bumper.

The plain language of Section 502.404(a) requires a license plate to be displayed “at the front ... of the vehicle.” In this context, “front” means the foremost part or beginning of a vehicle, not in the front half, facing the front, or in the front portion. This meaning of “front” as a location is not ambiguous and does not lead to an absurd result. While the Trans-portation Code does not explicitly define “front,” common usage and definitions of the word provide ample support for this construction. As the Amarillo Court ob-served, common phrases such as “go to the front of the line,” “front page,” “front door,” and “front seat” each convey the idea of “something preceding something else, or of the beginning of an object.”¹⁹ This interpretation is consistent with the ordinary dictionary definition.²⁰

Furthermore, this plain-language con-struction does not lead to absurd results but rather accomplishes the purpose of the statute. We think that the purpose of Section 502.404(a) is to facilitate quick and accurate identification of vehicles through the content of their license plates. Several other Transportation Code sections also facilitate this goal.²¹ By requiring that license plates be displayed at the foremost part of a vehicle, police and citizens will know exactly where to look to quickly find and read the plate. Reducing the search time is especially important when trying to identify a moving vehicle. Additionally, consistent placement facilitates accurate aiming of red light and toll booth cameras. Thus, because the plain meaning of Section 502.404(a) is not ambiguous nor does it lead to an absurd result, it requires a license plate to be displayed at the fore-most part or beginning of a vehicle.

Appellant argues, consistent with

State v. Losoya,²² that the word “front” in Sec-tion 502.404(a) is ambiguous and does not necessarily refer to a specific location. Appellant explains that “‘front line’ and ‘battle front’ for example, can mean an area of real estate quite large” and “[w]hile certainly the phrase ‘front page’ ... connotes a singular meaning, in con-trast ‘storm front’ does not.”²³ While some of these common expressions may be susceptible to such an interpretation, the most straightforward reading of each con-notes the edge of something. Further-more, using each as part of a phrase such as “at the battle front,” “at the front line,” or “at the storm front” directs the reader to a specific location, most commonly found at the edge or beginning of what is being described. Similarly, Section 502.404(a) requires that a license plate be displayed “at the front ... of the vehicle.” The plain meaning of the word “front” in this statute is a specific location.

Appellant also argues, relying on the legislative analysis found in

Losoya,²⁴ that because the current statute omits the phrase “and attached thereto” found in the predecessor to Section 502.404(a), the Leg-islature intended to discard the require-ment that a license plate be attached to the vehicle.²⁵ This, he argues, is evidence that it need not be attached to the front bumper. While it is true that the current statute does not specifically state that a license plate be “attached” to the front of the vehicle, the amendment that eliminat-ed this language was based on entirely different grounds. Both the Senate and the House committee reports express an intent to relocate the vehicle registration sticker from the license plate to the wind-shield, but those reports say nothing about changing the location of the license plate itself.²⁶ Furthermore, there is no practical difference between requiring a license plate to be displayed “at the front ... of the vehicle”²⁷ or having it attached and displayed “at the front.”²⁸ The court implies that the previous statute re-quired a license plate to be attached to the front bumper²⁹ but under its own interpre-

tation of “front,” one could just as reason-ably conclude that the plate could be at-tached to the dashboard or windshield, because the phrase “at the front” did not change; only the phrase “displayed and attached” was shortened to “displayed.” The legislative history of Section 502.404(a) provides little evidence that the legislature intended to discard the require-ment that a license plate be attached to or displayed at the front of the vehicle, usual-ly the front bumper.

Finally, even if the word “front” were ambiguous, the Austin court‘s inter-pretation in

Losoya conflicts with the pur-pose of the statute. In Losoya the court stated, and we agree, that “[t]he apparent purpose of section 502.404(a) is to facilitate the identification of a motor vehicle by its license plate number whether it is moving toward or away from the viewer.”³⁰ Al-lowing the plate to be located in a number of different places would make it difficult to quickly determine whether a given car has a license plate or what its numbers are. Furthermore, reflected sunlight or the lack of light at nighttime would further impede one‘s ability to find the location and content of a license plate placed under the windshield. These difficulties would result in far more unnecessary traffic stops.³¹ The purpose of Section 502.404(a) is best accomplished when “front” is inter-preted in accord with its plain meaning and requires a license plate to be located at the foremost part of the vehicle.

III.

A. Appellant‘s Placement of His Li-cense Plate Did Not Comply with Section 502.404(a).

Appellant‘s brief restates his trial testimony that the license plate was “propped up inside, up in the window on the glass, so it was all the way up in front of the front windshield.”³² Officer Bled-soe‘s testimony that there was no license plate attached to the front bumper and that he saw the plate behind the wind-shield only when he walked up to the car also confirms the location of the plate. On appeal, the Amarillo Court observed that while “all agree on the plate‘s location ... [a] question arises, however, as to whether that was a permissible location.”³³ The Court of Appeals held that, because Sec-tion 502.404(a) requires the license plate to be located “where the car begins, i.e. the foremost area of the vehicle” and because the license plate was not so located, appel-lant did not comply with the statute. We agree with the Court of Appeals; appel-lant‘s placement of his license plate be-tween his windshield and dashboard did not comply with Section 502.404(a).

B. Appellant Was Not Entitled to an Article 38.23 Jury Instruction.

Appellant also argues that the trial court erred in not giving an article 38.23 jury instruction regarding the place-ment of the license plate. Proper place-ment of a license plate is a question of law, not one of disputed historical fact. Since both parties agreed on the location of the license plate, an article 38.23 instruction was not warranted.³⁴ Appellant also ar-gues he should have been given a 38.23 instruction addressing the factual dispute about where he parked. This instruction was also correctly denied because there was sufficient probable cause for Officer Bledsoe to stop him based on the license plate violation. The traffic stop was legal regardless of whether appellant did or did not park on the sidewalk.³⁵

Under the plain language of the Texas Transportation Code, a license plate must be displayed at the foremost part or begin-ning of a vehicle, most commonly the front bumper. The word “front” in Section 502.404(a) is neither ambiguous nor does it lead to an absurd result. Accordingly, we affirm the judgment of the Amarillo Court of Appeals.

MEYERS, J., filed a dissenting opinion in which HERVEY, J., joined.

Texas Transportation Code Section 502.404(a) says:

A person commits an offense if the per-son operates on a public highway during a registration period a passenger car or commercial motor vehicle that does not display two license plates, at the front and rear of the vehicle, that have been:

(1) assigned by the department for the period; or

(2) validated by a registration insignia issued by the department that estab-lishes that the vehicle is registered for the period.

The only thing about this statute that is clear is that it is not well written.

The court of appeals in this case held that “one complies with § 502.404 of the Transportation Code when the license is affixed somewhere in the foremost or be-ginning area of the car.”

Spence v. State, 296 S.W.3d 315, 318 (Tex.App.-Amarillo 2009). The majority agrees and concludes that “the plain language of Texas Trans-portation Code § 502.404(a) requires that a license plate be displayed at the foremost part or front of a vehicle, most commonly the front bumper.” The majority‘s defini-tion, however, is inconsistent with the placement of the rear license plate, which is usually on the trunk or tailgate. There-fore, if the majority is correct that front means “foremost part” or “front bumper,” then there is a discrepancy in the statute with how the front and back plates are displayed since rear license plates are not displayed on the back bumper. So front means “front bumper” but rear does not mean “rear bumper“? I prefer to believe that if the legislature meant front bumper then it would have said “bumper” in the statute. I would also like to point out that a vehicle must have a light to illuminate the rear license plate, while there is no requirement that the front license plate be illuminated. Compare TEX. TRANSP. CODE § 547.322(f) (stating, “A taillamp or a sep-arate lamp shall be constructed and mounted to emit a white light that: (1) illuminates the rear license plate; and (2) makes the plate clearly legible at a dis-tance of 50 feet from the rear.“) with TEX. TRANSP. CODE § 547.321. To me, this indi-cates more leeway in the placement of the front license plate.

I agree with

State v. Losoya that, “While a place to display the license plate is usually found on the front bumper, the statute does not expressly require the use of this location. The display of the plate in some other place or manner is not incon-sistent with the language or purpose of the statute.” .

The court of appeals asserts that placing the license plate in the front windshield makes it “much harder” for police “to fo-cus on several areas (as opposed to one) when a car drives past at traveling speeds.”

Spence, 296 S.W.3d at 318. But officers must look at the front windshield anyway to see if the license plates that are displayed have a valid registration.¹ I re-alize that the officer in this case testified that an alternative reason he pulled Appel-lant over was that when the car was parked in the driveway it was blocking the sidewalk. But this was just a parking violation, which goes to the car, not to the driver. If the officer so desired, he could have written a parking ticket and placed it under the windshield wiper of the illegally parked car, at which time he would have clearly seen the license plate displayed in the front windshield.

CONCLUSION

Using the majority‘s logic, the rear of the vehicle would be the back bumper. But as we all know, 90% of all vehicles do not display the license plate on the back bumper, they are usually on the tailgate or trunk. I would construe front and rear to mean any surface facing that direction. Therefore, I respectfully dissent.

Notes

Appellant‘s grounds for review read as follows:

1. Does the Amarillo Court of Appeals’ decision in the petitioner‘s case conflict with the Austin Court of Appeals’ decision in State v. Losoya concerning the same issue, to wit: the legally permissible location to display a vehicle‘s license plate?

2. Has the Amarillo Court of Appeals decided an important question of state law concerning the legislative intent of the term “front” and the permissible location of a vehicle‘s license plate as provided by Section 502.404(a) of the Texas Transportation Code, which has not, but should be, settled by the Court of Criminal Appeals?

3. Has the Amarillo Court of Appeals departed from the usual course of judicial review where it has not addressed or rendered an opinion on petitioner‘s original complaint on appeal, to wit: the trial court‘s error in failing to give 38.23 instructions in the charge?

Registration stickers used to be displayed on the license plate but are now displayed inside the front windshield. Section 502.180(d) says, “Except as provided by Subsection (h), the registration insignia for validation of a license plate shall be attached to the inside of the vehicle‘s windshield, if the vehicle has a windshield, within six inches of the place where the motor vehicle inspection sticker is required to be placed. If the vehicle does not have a windshield, the owner, when applying for registration or renewal of registration, shall notify the department, and the depart-ment shall issue a distinctive device for at-tachment to the rear license plate of the vehi-cle.”

; see also (following Losoya).

The baggie contained 233.4 grams of cocaine. Appellant also had $1,400.00 in cash.

Section 545.302(a)(2) provides in relevant part that: “An operator may not stop, stand, or park a vehicle ... on a sidewalk.”

The trial judge perhaps meant “no factual dispute” rather than “no legal dispute.” See (Art. 38.23 requires a jury instruction only if there is a genuine dispute about a material fact that is essential to the existence of reasonable suspicion or probable cause).

; .

State‘s Brief at 14, n. 23 (“See, e.g. BLACK‘S LAW DICTIONARY 739 (9th ed.2009) (defining front (noun) as ‘the foremost part of some-thing‘); Merriam-Webster‘s Collegiate Dictio-nary 503 (11th ed.2005) (defining front (adjec-tive) as ‘of, relating to, or situated at the front’ with front (noun) defined as ‘the forward part or surface‘); Encarta World English Dictio-nary 716 (1999) (defining front, when used as part of adjective phrase ‘at or near the front,’ as ‘situated at, on, or near the front of some-thing, or placed further forward than others’ with front (noun) defined as ‘the area section, or position just ahead of, close to, or at the forward part of something‘); The Cassell Con-cise English Dictionary, New Edition 537 (1992) (defining front (adjective) as ‘relating to or situated in or at the front’ with front (noun) defined as ‘the forward part or side of anything‘); Chambers 20th Century Dictio-nary, New Edition 502-03 (1983) (defining front (adjective) as ‘of, relating to, in, the front’ with front (noun) defined as ‘the fore-part of anything‘); Webster‘s New Twentieth Century Dictionary 736 (2d ed. 1983) (defining front (adjective) as ‘pertaining to the fore part or front; situated in, at, or on the front’ with front (noun) defined as ‘first part; begin-ning‘); The American Heritage Dictionary, Second College Edition 536 (2d ed.1982) (de-fining front (adjective) as ‘[o]f, pertaining to, aimed at, or located in the front’ with front (noun) defined as ‘[t]he area, location, or po-sition directly before or ahead.‘)“).

TEX. TRANSP. CODE § 502.409(a)(5) (dis-played numbers and letters on a license plate must be free from “blurring or reflective mat-ter” and “plainly visible at all times during daylight“); TEX. TRANSP. Code § 547.322(f) (ve-hicles must be equipped with a white lamp that “(1) illuminates the rear license plate; and (2) makes the plate clearly legible at a distance of 50 feet from the rear.“); TEX. TRANSP. CODE § 547.801(a)(3) (requiring mo-torcycles to be equipped with a white lamp to illuminate the rear license plate).

(“The code does not define the ‘front’ of a vehicle. Be-cause we find the term to be ambiguous, we may resort to extratextual factors to deter-mine the meaning of the statute.“).

Appellant‘s Brief at 16.

Act of June 19, 1975, 64th Leg., R.S., ch. 621, § 3 (codified at TEX.REV.CIV. STAT. art. 6675a-3e § 5) (providing that a motor vehicle that operates upon the public highways of Texas must have: displayed thereon, and attached thereto, two (2) license number plates, one (1) plate at the front and one (1) at the rear, which have been duly and lawfully assigned for said vehicle for the current registration pe-riod or have been validated by the attach-ment of a symbol, tab, or other device for the current registration period.). Thus, under former law, the registration stick-er was attached to the license plates which were displayed and attached at both the front and the rear of the vehicle. Under current law, the registration sticker is attached to the driver‘s side windshield, while the license plates are still displayed at the front and rear of the vehicle.

Senate Comm. on State Affairs, Bill Analy-sis, Tex. H.B. 225, 72nd Leg., R.S. (1991); House Comm. on Transportation, Bill Analy-sis, Tex. H.B. 225, 72nd Leg., R.S. (1991).

TEX. TRANSP. CODE ANN. § 502.404(a).

TEX.REV.CIV. STAT. art. 6675a-3e, § 5 (re-pealed).

(stating that the omission of “attached thereto” in the cur-rent statute “supports Losoya‘s argument that the present statute does not require the li-cense plate to be physically attached to the vehicle” and that this “in turn, is some evi-dence that the license plate need not be at-tached to the front bumper.“).

Even if a license plate could be legally propped up against the windshield, Officer Bledsoe had probable cause to stop appellant because he reasonably believed appellant did not have a valid license plate at the time he was pulled over. Only when the officer walked up close to the car could he see the license plate. See (probable cause existed when officers could not see temporary plate legally displayed in rear tinted window), abrogated on other grounds by .

Appellant‘s Brief at 12.

See .

(“And if other facts, not in dispute, are sufficient to support the law-fulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence.“).