Alejos v. State
| Citation | 555 S.W.2d 444 |
| Decision Date | 27 April 1977 |
| Docket Number | No. 52789,52789 |
| Parties | Charles F. ALEJOS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
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:
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.
This appeal is from a conviction for evading arrest under V.T.C.A., Penal Code, § 38.04. In a bench trial following a not guilty plea, punishment was assessed at fifteen (15) days in the county jail and at a fine of $125.00. The court then placed the appellant on misdemeanor probation for twelve (12) months. See Article 42.13, Vernon's Ann.C.C.P.
On original submission we reversed the conviction holding that Article 6701d, § 186, Vernon's Ann.C.S. (fleeing or attempting to elude a police officer) and said § 38.04 of the new Penal Code were in pari materia and that the civil statute as a special statute controlled over the general statute (said § 38.04) since the penalties varied.
On rehearing the State urges reconsideration of the question. We shall do so.
The record reflects that Officer Richard Garansuay of the San Antonio Police was the only witness to testify, and the sufficiency of the evidence is not challenged by the appellant. About 11:30 p. m. on May 8, 1975, while in uniform, Garansuay was on patrol northbound on South Flores Street when he heard screeching tires and then observed a motor vehicle at a high rate of speed on the wrong side of the road. The vehicle was southbound but driving in the northbound lane. Garansuay swerved his clearly marked police vehicle to avoid a collision and turned to follow the other vehicle. The officer turned on the emergency lights on top of his police vehicle as well as his siren. The other vehicle continued at a high rate of speed and would not stop. Garansuay then advised the police dispatcher he was chasing a vehicle that would not stop. Another police unit joined the pursuit. Soon the other vehicle turned on Big Foot Street, a dark side street, and when Garansuay turned onto Big Foot he did not see the other vehicle on the street but observed it in a driveway without lights and without the motor running. The individuals in the car were trying to conceal themselves by "ducking down." The appellant was discovered to be the driver of the fleeing vehicle. It was determined that the residents of the address where appellant had parked did not know him or any of the passengers in appellant's vehicle.
Appellant was charged with evading arrest and speeding, etc.
V.T.C.A., Penal Code, § 38.04 (Evading Arrest), provides:
"(c) An offense under this section is a Class B misdemeanor." 1
The Practice Commentary to said § 38.04 reads:
See V.T.C.A., Penal Code, § 2.02.
The Explanatory Comment of Branch's Texas Annotated Penal Code, 3rd Ed., Vol. 3, § 38.04, p. 116, has a similar explanation. It reads:
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