Lester Guy Burney v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00071-CR
__________________

LESTER GUY BURNEY, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 21-02-01762-CR
__________________________________________________________________

MEMORANDUM OPINION

Appellant Lester Guy Burney appeals his conviction for driving while

intoxicated which was enhanced to a third-degree felony by two prior DWI

convictions. See Tex. Penal Code Ann. §§ 49.04(a), 49.09(b)(2). Burney filed a

written motion to suppress the initial traffic stop, arguing that the State Trooper

lacked probable cause to initiate the stop. The trial court found that Burney’s

detention was supported by reasonable suspicion, and the trial court denied Burney’s

motion to suppress. In two issues, Burney argues that the trial court erred in denying

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Burney’s motion to suppress because the warrantless traffic stop was

unconstitutional, and the Trooper lacked reasonable suspicion to stop Burney. We

affirm the trial court’s judgment.

Background

Trooper Silvia with the Texas Department of Transportation testified at trial

that on February 2, 2021, at approximately 9:45 p.m., he was on patrol driving south

on Fostoria Road in Montgomery County, and Burney, who was driving north on

the same road, twice momentarily “flashed” his high beams or “brights” at Silvia’s

oncoming patrol car. According to Trooper Silvia, Burney’s flashing of his vehicle’s

high beams obscured Silvia’s vision and “it was bright.” Trooper Silvia explained

that Burney’s flashing of his vehicle’s high beams was dangerous because the road

has “really no shoulder[,]” has heavy foot and bicycle traffic, and if a driver is

blinded by high beams, they could accidentally hit a pedestrian or bicyclist. Trooper

Silvia testified that flashing high beams at another vehicle could also cause a road-

rage incident. According to Trooper Silvia, Burney’s flashing of his high beams

constituted a Transportation Code violation, so Trooper Silvia turned his patrol car

around to initiate a traffic stop and to give Burney a warning and to inform Burney

of the dangers of flashing high beams. During Trooper Silvia’s testimony, Burney

requested a hearing on his motion to suppress the traffic stop. Defense counsel stated

that although a motion to suppress had already been filed, he had “drafted a specific

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one with caselaw regarding this issue that we haven’t filed yet,” and defense counsel

provided copies of the new pleading to the State and the trial court.

The trial court then held a suppression hearing, and Burney argued that the

traffic stop and everything following the alleged illegal stop should be suppressed

because (1) under Chubb v. State, it is not a violation of the Transportation Code to

flash your brights; (2) a person may flash their “brights” as a response to another

vehicle’s high beams that are flashing in the person’s eyes; and (3) a driver’s right

to flash their brights is protected speech under the First Amendment of the United

States Constitution. 1 At the hearing outside the jury’s presence, Trooper Silvia then

testified that it is a violation of section 547.333 of the Texas Transportation Code

for a driver to flash their vehicle’s high beams within 500 feet of an oncoming

vehicle even if the person is signaling the oncoming driver that their high beams are

on, and Silvia explained that he usually tries not to ticket a driver for flashing their

vehicle’s high beams and usually gives them a warning instead. According to

Trooper Silvia, he routinely measures distance in his crash investigations, and based

on his training and experience, Burney’s vehicle was “actually quite close” and

within 100 feet of Trooper Silvia’s patrol car when Burney flashed his high beams.

The trial court denied the motion to suppress, and the trial continued. We have not

1
Two days after the suppression hearing, Burney filed his Brief in Support of
Motion to Suppress Traffic Stop, wherein he made the arguments he made orally at
the hearing.
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included a discussion of the evidence and additional testimony because it is

unnecessary to a resolution of the issue on appeal. See Tex. R. App. P. 47.1.

At the conclusion of the trial, the jury found Burney guilty as charged in the

indictment. Burney pleaded “not true” to the enhancements alleged in the

indictment, and then elected to have the trial court assess punishment. The trial court

found the enhancement allegations “true,” and the trial court sentenced Burney to

forty years of confinement. Burney filed a motion for new trial, which was overruled

by operation of law.

The trial court entered Findings of Fact and Conclusions of Law with respect

to the ruling on the motion to suppress. The trial court’s findings of fact included the

following:

[] On February 2, 2021, around the time of his encounter with the
defendant, Lester Guy Burney, Silvia left another unrelated traffic stop
near Fostoria Road.

[] At approximately 9:45 in the evening, Silvia drove southbound on
Fostoria Road. There was not much traffic on the road. As he drove
southbound, Silvia observed a car, later found to be driven by the
defendant, coming towards him in the opposite lane of traffic driving
northbound. The car flashed its high beams at him twice.

[] Silvia testified that there are two different lamp settings in a
vehicle—the regular driving lamps and high beams.

[] Silvia’s attention was drawn to the oncoming car flashing its high
beams at him. The high beams were bright and obscured his vision.

[] Silvia testified that he considered the driver’s actions dangerous
because there is no shoulder on Fostoria Road. He stated that there is
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foot traffic and bicyclists on this road, and that a blinded driver could
accidently hit someone. Silvia also testified that, in general, there are
road rage incidents related to flashing lights.

[] Silvia testified that his observation of the oncoming vehicle flashing
its high beams at him within 500 feet was a violation under the Texas
Transportation Code 547.333. Silvia also testified, although there are
instances when motorists flash their high beams to signal other drivers
or relay a message, that it is still considered a violation under the Texas
Transportation Code.

[] Silvia testified that he routinely conducts crash investigations and is
familiar with distance measurements on roads. Based on his training
and experience, Silvia estimated that the oncoming vehicle that flashed
its high beams was within 100 feet of Silvia’s vehicle.

[] Based on the observed traffic violation, Silvia turned around to
initiate a traffic stop with the intent of issuing a warning to the driver.
...
[] Silvia testified, based on the two Texas Transportation Code
violations he observed, that he initiated a traffic stop on the vehicle with
the intent of issuing warnings for flashing high beams and possessing
an obscured license plate.

[] Texas Transportation Code section 547.333(c) requires that: “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.

The trial court’s conclusion of law was that “[t]he defendant’s detention was

supported by reasonable suspicion[]” under the Fourth Amendment. See U.S. Const.

amend. IV. Burney appealed.

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Issues on Appeal

In his first issue, Burney argues that the trial court erred in denying Burney’s

motion to suppress because he was unconstitutionally seized based on his

momentarily flashing of his high-beams or “brights” which is not illegal and Trooper

Silvia’s misunderstanding of the law cannot establish a particularized suspicion

justifying the stop. In his second issue, Burney argues that the trial court erred in

denying Burney’s motion to suppress because he was unconstitutionally seized

based on Trooper Silvia’s belief that his license plate was obscured more than one

half of the “X” in “Texas” which is prohibited by section 504.945(a)(7)(B) of the

Texas Transportation Code, and Trooper Silvia’s misunderstanding of the law

cannot establish particularized suspicion justifying the stop.

Standard of Review and Applicable Law

We review a trial court’s denial of a motion to suppress under a bifurcated

standard of review. See Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.

2013); Lopez v. State, 610 S.W.3d 487, 494 (Tex. Crim. App. 2020). At a

suppression hearing, the trial court is the sole trier of fact and judge of the credibility

of the witnesses and the weight to be given their testimony, and a trial court may

choose to believe or disbelieve all or part of a witness’s testimony. Valtierra v. State,

310 S.W.3d 442, 447 (Tex. Crim. App. 2010); Wiede v. State, 214 S.W.3d 17, 24-

25 (Tex. Crim. App. 2007) (quoting State v. Ballard, 987 S.W.2d 889, 891 (Tex.

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Crim. App. 1999)); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When

reviewing a trial court’s ruling, the appellate court does not engage in its own factual

review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). In

conducting our review, “[w]e afford almost total deference to the trial court’s

findings of historical facts that are reasonably supported by the record and to its

resolution of mixed questions that turn on credibility or demeanor[.]” Lopez, 610

S.W.3d at 494. “We review de novo a trial court’s legal conclusions and its

resolution of mixed questions that do not turn on credibility or demeanor.” Id. When

the trial court makes explicit fact findings, we determine whether the evidence, when

viewed in the light most favorable to the trial court’s ruling, supports those findings.

State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). We will uphold the

trial court’s ruling if it is reasonably supported by the record and is correct on any

theory of law applicable to the case. State v. Story, 445 S.W.3d 729, 732 (Tex. Crim.

App. 2014); Arguellez v. State, 409 S.W.3d 657, 662-63 (Tex. Crim. App. 2013);

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We reverse the trial

court’s ruling on a motion to suppress only if it is outside the zone of reasonable

disagreement. Wexler v. State, 625 S.W.3d 162, 167 (Tex. Crim. App. 2021) (citing

State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018); Story, 445 S.W.3d at

732). We must review the trial court’s ruling in the light of what was before the court

at the time the ruling was made. Weatherred v. State, 35 S.W.3d 304, 311 (Tex.

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App.—Beaumont 2001, pet. ref’d). Therefore, our review of the relevant evidence

is confined solely to that elicited during the suppression hearing. Id. Statutory

construction is a question of law that we review de novo. Mehaffey v. State, 316

S.W.3d 633, 637 (Tex. Crim. App. 2010).

A warrantless traffic stop is analogous to a temporary detention, and it may

be justified when the Trooper has “reasonable suspicion.” State v. Hardin, 664

S.W.3d 867, 872 (Tex. Crim. App. 2022) (citing Derichsweiler v. State, 348 S.W.3d

906, 914 (Tex. Crim. App. 2011)). Generally, a stop is reasonable when a police

officer has probable cause to believe that a traffic violation has occurred. Whren v.

United States, 517 U.S. 806, 810 (1996); Walter v. State, 28 S.W.3d 538, 542 (Tex.

Crim. App. 2000). We examine the reasonableness of a temporary detention in light

of the totality of the circumstances. See United States v. Cortez, 449 U.S. 411, 417

(1981) (explaining “the totality of the circumstances—the whole picture—must be

taken into account[]” when determining whether reasonable cause for a traffic stop

exists); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).

Reasonable suspicion requires more than a hunch, and it exists if the officer has

specific articulable facts that, combined with rational inferences from those facts,

would lead the officer to reasonably conclude the person is, has been, or soon will

be engaged in criminal activity. Hardin, 664 S.W.3d at 872 (citing Castro v. State,

227 S.W.3d 737, 741 (Tex. Crim. App. 2007)); Delafuente v. State, 414 S.W.3d 173,

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177 (Tex. Crim. App. 2013). For reasonable suspicion to exist, it is not necessary

that an actual violation has occurred; all that is necessary is that the officer

reasonably believed that a violation was in progress. Shirley v. State, No. PD-0239-

22, 2023 Tex. Crim. App. Unpub. LEXIS 369, at *17 (Tex. Crim. App. Aug. 23,

2023); Tex. Dep’t of Pub. Safety v. Hargroder, No. 09-21-00070-CV, 2021 Tex.

App. LEXIS 7068, at *11 (Tex. App.—Beaumont Aug. 26, 2021, no pet.) (citing

Green v. State, 93 S.W.3d 541, 545 (Tex. App.—Texarkana 2002, pet. ref’d); Cook

v. State, 63 S.W.3d 924, 929 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d));

Tex. Dep’t of Pub. Safety v. Fisher, 56 S.W.3d 159, 163 (Tex. App.—Dallas 2001,

no pet.).

The standard for determining whether reasonable suspicion exists for a
temporary investigative detention is quite low. It is lower than the
probable cause standard and applies only to those brief detentions
which fall short of being full scale searches and seizures. A police
officer has reasonable suspicion to detain if he has specific, articulable
facts that, combined with rational inferences from those facts, would
lead him reasonably to conclude that the person detained is, has been,
or soon will be engaged in criminal activity. The relevant inquiry is not
whether particular conduct is innocent or criminal, but the degree of
suspicion that attaches to particular non-criminal acts.

Shirley, 2023 Tex. Crim. App. Unpub. LEXIS 369, at *16 (footnotes omitted). In

determining whether an officer’s suspicion was reasonable, we employ an objective

standard: whether the facts available to the officer at the moment of detention

warrant a person of reasonable caution to believe that the action taken was

appropriate. See id. at **16-17; Hargroder, 2021 Tex. App. LEXIS 7068, at *11
9
(citing Terry v. Ohio, 392 U.S. 1, 21-22 (1968); Davis v. State, 947 S.W.2d 240, 243

(Tex. Crim. App. 1997); Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.—

Austin 1998, pet. ref’d)). “A mistake about a statute’s application can be objectively

reasonable when the statute’s application is unclear and the statute has not previously

been definitely construed by a court.” Shirley, 2023 Tex. Crim. App. Unpub. LEXIS

369, at **17-18 (citing Heien v. N. Carolina, 574 U.S. 54, 67-68 (2014)).

Section 547.333(c)(1) of the Texas Transportation Code states

(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[.]

Tex. Transp. Code Ann. § 547.333(c)(1).

Analysis

In his first issue, Burney argues that the trial court erred in denying Burney’s

motion to suppress because he was unconstitutionally seized based on the

“momentarily flashing of his high-beams” or “brights” which he argues is not illegal

and Trooper Silvia’s misunderstanding of the law cannot establish a particularized

suspicion justifying the stop. According to Burney, Trooper Silvia’s belief that

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Burney had violated section 547.333(c)(1) of the Texas Transportation Code was

incorrect because the Legislature did not intend the word “select” in the statute to be

a blanket prohibition against momentarily flashing of high beams or “brights” when

signaling approaching vehicles to dim their own high-beams or “brights.” Burney

argues that Trooper Silvia misunderstood the law, and therefore the Trooper did not

have particularized or reasonable suspicion to stop Burney. Burney also argues that

because Trooper Silvia’s continuous selection of this high-beams or “brights”

obstructed Burney’s view, Burney’s “selection” of his high-beams or “brights” was

justified. Burney contends that even if the flashing of his high-beams or “brights”

violated section 547.333(c)(1), Trooper Silvia’s seizure of him violated the Fourth

Amendment because Silvia “manufactured the violation through his own actions

making his seizure unreasonable.” Burney also argues that his momentary flashing

of high beams to signal Trooper Silvia was protected First Amendment speech

because here Burney was warning Trooper Silvia that Silvia’s “continuous use of

high beam lights was obstructing [Burney’s] view” as Trooper Silvia’s patrol car

was “approach[ing] within 100 feet on the two-lane roadway.” On appeal, Burney

does not argue that he was not within 500 feet when he flashed his high beams at

Trooper Silvia’s vehicle, nor does Burney argue that the flashing of his vehicle’s

high beams did not obstruct Trooper Silvia’s view.

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The State argues that the trial court did not err in denying the motion to

suppress because the plain language of section 547.333 prohibits a driver from

flashing his high beams at an oncoming vehicle within 500 feet if it obstructs the

other driver’s vision. According to the State, the trial court found Trooper Silvia’s

testimony credible regarding the Trooper’s belief that Burney violated section

547.333, and even if Trooper Silvia had misinterpreted the statute, it would still

constitute reasonable suspicion. As for Burney’s First Amendment claim, the State

argues that there is no credible evidence that Burney’s flashing of his brights was

expressive conduct, and section 547.333 is a content-neutral regulation that passes

intermediate scrutiny.

We first address Burney’s arguments pertaining to section 547.333. When

construing statutes, our primary goal is to ascertain and give effect to the

legislature’s intent. See Tex. Gov’t Code Ann. § 312.005; Tex. Lottery Comm’n v.

First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). In doing so, we

necessarily focus our attention on the literal text of the statute in question and attempt

to discern the fair, objective meaning of the text at the time of its enactment. Watkins

v. State, 619 S.W.3d 265, 271-72 (Tex. Crim. App. 2021). In interpreting the text of

the statute, we must presume that every word in a statute has been used for a purpose

and that each word, phrase, clause, and sentence should be given effect if reasonably

possible. State v. Rosenbaum, 818 S.W.2d 398, 400-01 (Tex. Crim. App. 1991)

12
(citing Tex. Gov’t Code Ann. §§ 311.025(b), 311.026(a)); State v. Hardy, 963

S.W.2d 516, 520 (Tex. Crim. App. 1997). When a particular term has not been

legislatively defined, we construe that term according to common usage. Watkins,

619 S.W.3d at 272. We may consult standard or legal dictionaries to determine the

meaning of undefined terms. Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App.

2001); Ex parte Rieck, 144 S.W.3d 510, 512-13 (Tex. Crim. App. 2004).

Section 547.333 contains no definition of the word “select.” We note that the

general definition of the word does not contain a temporal element. See Webster’s

Third New Int’l Dictionary, 2058 (2002) (“select” means “chosen from a member or

group by fitness or preference”). Burney cites to Chubb v. State, 821 S.W.2d 298,

300 (Tex. App.—Corpus Christi 1991, pet. ref’d) and other cases 2 in support of his

argument that law enforcement commonly utilizes the flashing of high beams to

signal drivers. Although the facts in Chubb and the other cases Burney cites involve

an officer flashing a patrol vehicle’s high beams at another vehicle, nothing in those

opinions stands for the proposition that the act of flashing “brights” or “high beams”

does not violate section 547.333(c)(1). See also McCurtain v. State, No. 05-15-

00959-CR, 2016 Tex. App. LEXIS 7544, at *4 (Tex. App.—Dallas July 14, 2016,

2
Guitierrez v. State, 422 S.W.2d 467, 468 (Tex. Crim. App. 1968); Jezek v.
State, No. 03-09-00575-CR, 2010 Tex. App. LEXIS 7234, at *3 (Tex. App.—Austin
Aug. 31, 2010, no pet.) (mem. op., not designated for publication); State v . McCray,
986 S.W.2d 259, 260 (Tex. App.—Texarkana 1998, pet. ref’d).
13
no pet.) (mem. op., not designated for publication) (Chubb and other cases may

mention facts of a vehicle’s high beams being flashed at another car but the cases do

not stand for the proposition that the action of flashing high beams is not a violation

of section 547.333). Burney has not cited a definition or case that provides that the

term “select,” as used in section 547.333 is limited to the permanent selection of

high beams. The trial court found that Trooper Silvia testified that: he was driving

southbound and observed the vehicle driven by Burney coming towards Silvia in the

opposite lane of traffic driving northbound; the car flashed its high beams at him

twice; based on his training and experience the oncoming vehicle that flashed its

high beams was within 100 feet of Silvia’s vehicle; his observation of the oncoming

vehicle flashing its high beams at him within 500 feet was a violation under section

547.333 of the Texas Transportation Code; based on the observed traffic violation

Trooper Silvia turned around to initiate a traffic stop with the intent of issuing a

warning to Burney; and that although there are instances when motorists flash their

high beams to signal other drivers or relay a message, it is still considered a violation

under the Texas Transportation Code.

We need not decide whether Burney’s momentary flashing of his high beams

constituted an actual violation of section 547.333 because we conclude the trial court

did not err in finding that Trooper Silvia’s belief that Burney’s conduct violated

section 547.333(c)(1) of the Texas Transportation Code was reasonable. See Heien,

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574 U.S. at 65-67 (A traffic stop based on an officer’s mistaken understanding of the

law of the offense, so long as that mistake was objectively reasonable, is valid.);

McCurtain, 2016 Tex. App. LEXIS 7544, at **4-5 (appellate court did not need to

determine whether section 547.333 requires a vehicle’s high beams to be

permanently or continuously selected to constitute a violation of section

547.333(c)(2) because the appellate court concluded that the officer’s belief that

appellant’s conduct violated the statute was reasonable) (citing Heien, 574 U.S. at

65-67).

We next address Burney’s arguments that (1) his flashing of his high beams

was somehow legal or justified because it was in response to Trooper Silvia’s alleged

use of high beams towards Burney’s direction and his argument that it was protected

speech under the First Amendment; and (2) his argument that even if Burney’s

flashing of his high beams was illegal, Trooper Silvia manufactured or invited the

violation by using his brights to get Burney to respond by flashing his brights.

Burney’s appellate brief makes these arguments and cites to purported evidence in

support of his allegation that he flashed his “brights” in response to Trooper Silvia’s

brights being selected. Defense counsel also argued during the suppression hearing

that Burney flashed his high beams at Trooper Silvia because Trooper Silvia’s patrol

car’s high beams were blinding Burney and Burney was signaling to Trooper Silvia

to dim his lights. There is no evidence in the record at the time the trial court denied

15
the motion to suppress that Trooper Silvia’s high beams were on, flashed, or selected

prior to Burney’s selection of and flashing of Burney’s brights, and we cannot say

the trial court erred in rejecting this argument at the time it denied the motion to

suppress. See Weatherred, 35 S.W.3d at 311 (our review of the relevant evidence is

confined solely to that elicited during the suppression hearing). Also, we note that

the trial court did not find that Trooper Silvia engaged his vehicle’s high beams prior

to the traffic stop.

Based on the totality of the circumstances and in the light of what was before

the trial court at the time it denied Burney’s motion to suppress, we conclude that

the trial court could have reasonably concluded that Trooper Silvia’s initial detention

of Burney was objectively reasonable, that Silvia had reasonable suspicion that

Burney had violated section 547.333 of the Texas Transportation Code, and that

probable cause existed to support the traffic stop. See Heien, 574 U.S. at 67-68;

Whren, 517 U.S. at 810; Cortez, 449 U.S. at 417; Shirley, 2023 Tex. Crim. App.

Unpub. LEXIS 369, at **16-18; Walter, 28 S.W.3d at 542; Carmouche, 10 S.W.3d

at 328; Hargroder, 2021 Tex. App. LEXIS 7068, at *11; Weatherred, 35 S.W.3d at

311. The trial court’s ruling denying the motion to suppress was not outside the zone

of reasonable disagreement. See Wexler, 625 S.W.3d at 167. We overrule issue one.

Accordingly, we need not address Burney’s second issue. See Tex. R. App. P. 47.1.

We affirm the trial court’s judgment.

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AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on September 30, 2025
Opinion Delivered October 15, 2025
Do Not Publish

Before Johnson, Wright and Chambers, JJ.

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