ANDREW COLE HELLER v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

ANDREW COLE HELLER, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–10–00970–CR

Decided: December 19, 2011

Before Justices Morris, Francis, and Lang–Miers

OPINION

Opinion By Justice Morris

After the trial court denied his motion to suppress, Andrew Cole Heller pleaded guilty to and was convicted of driving while intoxicated.   In four issues on appeal, he complains the arresting officer lacked reasonable suspicion to stop him, the traffic laws he allegedly violated are unconstitutionally vague, and the trial court erred in failing to file findings of fact and conclusions of law.   We affirm the trial court's judgment.

Factual Background

Dallas police officer John Nash was on patrol at around 1 a.m. when he saw appellant's car with a number of people in it driving down a one-way street.   Nash observed appellant make a left turn onto another one-way street without signaling.   He also noted that, instead of turning into the closest available lane, appellant made a wide turn across three lanes of traffic and then made an immediate right turn.   After noting these traffic violations, Nash stopped appellant and later arrested him for DWI. Nash admitted he did not know appellant's intent when he made the left turn without signaling.

Discussion

In his first issue, appellant complains that Nash lacked reasonable suspicion to believe that he had the intent to turn left and therefore he could not have violated transportation code section 545.104(b), which provides that an operator “intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.”   Tex. Transp.  Code Ann. § 545.104(b) (West 2011).   Nash observed appellant violating section 545.104(a), which requires that a driver use a signal to indicate his intent to turn.   See id. § 545.104(a).   Because appellant made the left turn, Nash could reasonably conclude that it was his intention to make it.   Moreover, Nash also observed appellant making a wide left turn onto a one-way street, in violation of section 545.101(d), which requires that a driver turning left onto a one-way street “make the turn as closely as practicable to the left-hand curb or edge of the roadway.”   Id. § 545.101(d).  Thus, Nash was authorized to stop appellant for violating both section 545.104(a) and section 545.101(d).  See Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App.2000).   Appellant's first issue is without merit, and we resolve it against him.

In his second issue, appellant complains that Nash lacked reasonable suspicion to believe he had violated 545.101(d) because the statute requires only that the driver turn “as closely as practicable” to the left-hand curb.   Tex. Transp.  Code Ann. § 545.101(d).  Appellant argues that his wide turn at the intersection was necessary because he was going to be making a right-hand turn immediately after his left turn.   As discussed above, Nash was authorized to stop appellant for failing to signal his left turn, so whether he was authorized to stop him for this additional traffic violation is immaterial to whether the trial court erred in denying his motion to suppress.

Furthermore, as explained by Nash at the motion to suppress hearing, making the turn “as closely as practicable” under section 545.101(d) would require appellant to “turn into the first available lane unless there's something blocking the car․  You turn into the first available lane, make sure everything's clear and then you can go over and make a right turn into where you're going.”   Nash observed appellant violate this traffic code section and was thereby authorized to stop him.   We resolve appellant's second issue against him.

In his third issue, appellant complains that both transportation code section 545.104(b) and section 545.101(d) are unconstitutionally vague.   It is clear from Nash's testimony that he did not stop appellant for violating section 545.104(b), but rather for violating 545.104(a), which appellant does not challenge.   Accordingly, he has no standing to challenge section 545.104(b), and we will not address his arguments pertaining to that statute.   See Johnson v. State, 853 S.W.2d 527, 534 (Tex.Crim.App.1992).

In his challenge to section 545.101(d), appellant contends the statute is unconstitutionally vague because the term “practicable” is not defined.   He does not, however, cite to any portion of the trial record where he asserted that the statute was unconstitutionally vague.   Because he did not make this argument in the trial court his complaint is not preserved for review.   See Mays v. State, 318 S.W.3d 368, 388 (Tex.Crim.App.2010).   We resolve appellant's third issue against him.

Appellant complains in his fourth issue that the trial court failed to file findings and facts and conclusions of law with respect to his motion to suppress.   The record, however, contains no request by appellant that the trial court do so.   Appellant's counsel admits in his brief, “I have in my files a copy of such a request, but it is not dated, nor do I find it in the Court's record.”   The trial court is required to file findings of facts and conclusions of law “upon the request of the losing party on a motion to suppress evidence.”  State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App.2006).   Because the record fails to show the trial court ever received a request by appellant to file findings of fact and conclusions of law, the court did not err in failing to file them.   We resolve appellant's fourth issue against him.

We affirm the trial court's judgment.

JOSEPH B. MORRIS JUSTICE

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