Drive on Those Improved Shoulders!

Donald Lothrop drives up behind another driver who has slowed down before crossing railroad tracks in Boyd, Texas. Lothrop passes that other driver on an improved shoulder as they are both crossing the tracks. A cop stops Lothrop because the pass is illegal. That stop is the occasion for Lothrop's getting arrested for DWI. Was Lothrop's driving illegal? Judge Melton D. Cude of the Wise County Court of Law Number One thought so. The Second Court of Appeals in Fort Worth agreed. But not the Court of Criminal Appeals.  Judge Paul Womack  delivered the opinion of the Court, in which Judges Meyers, Price, Johnson, Hervey, Cochran, and Alcala joined. Lothrop cited the Court to Transportation Code section 545.058(a): "An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only . . . to pass another vehicle that is slowing or stopped on the main traveled
portion of the highway, disabled, or preparing to make a left turn . . . or . . . to avoid a collision." The CCA agreed that Lothrop was passing another vehicle that was slowing on the main traveled portion on the road and that "necessary" in the statute couldn't mean what necessity would normally mean in such a statute, that is, necessity to avoid a wreck, since avoiding a collision is one of the other enumerated allowances for driving on the improved shoulder. Judge Cheryl Johnson wrote a concurrence, emphasizing that driving as Lothrop did is normally very unsafe, but that the testimony in favor of the stop was the testimony of the arresting officer only, who only said that Lothrop's driving was illegal, not that it was unsafe. Johnson says that the result would have been different had the cop testified that Lothrop had been driving unsafely. Judge Michael E. Keasler dissented without an opinion. Presiding Judge Sharon Keller concurred without an opinion: no paper trail for her, she's running for reelection.
Appellate advocacy lesson here is that if the precise language of statute makes the ordinary understanding of an expression in another part of the statute supererogatory, if might make it meaningless.
Thanks to Michael Falkenberg of the CCA staff for correcting an error in an earlier edition of this post.

The Court of Criminal Appeals Supports a Marginal Traffic Checkpoint against El Paso

In a per curiam opinion joined by seven of the nine judges, the Texas Court of Criminal Appeals held that the presence of a drug-sniffing dog at a license-and-insurance traffic checkpoint did not violate the defendant's right to be secure in his person in the absence of probable cause.
Let's discuss this in order by time. At a night traffic checkpoint, the officers asked all the drivers for license and registration. Lujan said he didn't have his license with him. Lujan said that he and his passenger had been to see one friend. The name of the friend that the passenger gave was different. Lujan was patted down for officer safety, and the patdown showed the officer's Lujan's possession of about $1,562. The officers then had a dog sniff the vehicle. The dog alerted and cocaine was found in the car doors. At trial, Lujan moved to suppress on the ground, that instead of being merely an allowable license-and-insurance checkpoint, the checkpoint was also looking for other violations of law, especially for driving while intoxicated. The trial court overruled the motion. The Eighth Court of Appeals in El Paso reversed and remanded. The CCA took the case on a petition for discretionary review, and reversed El Paso. They held that even though the officers might have found violators of laws in addition to license and insurance violations, the officers would have let anybody who had a driver's license and proof of financial responsibility pass in the absence of reasonable suspicions or probable cause arising because the officers could see the vehicle, just as they could see the vehicles if they had merely been watching the traffic from the side of the road. Lujan got extra attention because he lacked his license, which was a legitimate reason for officers to stop him. He appears to have consented to a search of the vehicle. The CCA judges also found that the dog sniff was OK, which seems consistent with checking the plain smell of a public object. Judge Cheryl Johnson concurred saying that she didn't like having a drug dog at a checkpoint, but in this case, the officers would have found the dope even if the dog had not alerted. Judge Lawrence Meyers dissented. He thought that the Eights had correctly assessed the purpose of the checkpoint. Its purpose was illegal, and the majority gave too much credit to the trial judge's assessment of the evidence.

Defendant Held to Have Opened the Door for State’s Plea-Bargain-Discussion Question

The Texas Court of Criminal Appeals overturned a decision of Amarillo's Seventh Court of Appeals. Amarillo reversed and remanded defendant Troy A. Bowley's felony Driving While Intoxicated conviction. Amarillo did it because trial judge Cecil G. Puryear did not grant Bowley's motion for a jury instruction to disregard a State's question about plea-bargain-discussions.

Bowley admitted that he was guilty in his prior cases. He said that he had pleaded not guilty in the case he was being tried for because he was, in fact, not guilty. The State asked on cross-examination: "Could it be that it's because we couldn't agree on a plea agreement that you preferred?" The defense objected. The court sustained. The defense then asked for a jury instruction to disregard the improper question. The trial court denied.

Amarillo disagreed. The CCA held that any harm was Bowley's fault. He'd opened the door about why he'd made the prior pleas.

Judge Michael E. Keasler wrote the majority opinion. Other majority judges were Presiding Judge Sharon Keller and Judges Paul Womack, Barbara Parker Hervey and Cathy Cochran.

Judge Tom Price wrote a dissent that Judges Laurence E. Meyers, Cheryl Johnson and Charles R. Holcombe joined. It said that the trial judge sustained Bowley's general objection without indicating what his legal basis was. Bowley's brief assumed that his objection was on Texas Rule of Evidence 410(4). Even though the objectionable question would not have elicited a particular statement of his, it would have told the jury that he had been involved in plea negotiations. Amarillo didn't consider this issue. It had said that the question might have been proper under TRE 403. Price didn't think that was the right issue, though he couldn't tell from the record. If the issue had been 403, and that ruling was right, 410(4) would have required reversal and remand to Amarillo instead of rendition.

Judge Holcombe filed a dissent joined by Judges Meyers, Price and Johnson. It said the State's question was objectionable even if Bowley had opened the door. Rule 410 would have trumped Rule 403.

Additionally, Judge Johnson wrote an additional lone dissent. She would have held that the State's use of prior DWIs here conflicted with
Phifer v. State, 787 S.W.2d 395 (Tex. Crim. App. 1990). She said Penal Code § 49.09(g) "may be a validation of Phifer (emphasis mine)." Furthermore, Phillips v. State, 992 S.W.2d 491 (Tex. Crim. App. 1999) "did not overrule Phifer." Judge Johnson is the only lawyer I know or have heard of who does not believe that § 49.09(g) is the legislature's overruling of Phifer. And that Phillips proves that.

    Bowley's lawyer preserved this point properly. (From time to time the CCA has required defense counsel to make very detailed objections so as to put appeals courts on notice of the exact objection. If Bowley's lawyer had said, "Your honor, objection, statement made in the course of plea discussions," Bowley would have been no better off.) To preserve an evidence issue, one must:

• object to the evidence.
  
• If the trial judge sustains your objection, then ask for an instruction for the jury to disregard.
  
• If that instruction is given, move for a mistrial.
  

Ambitious defense lawyers will likely use Judge Johnson's dissent as the basis for a motion to quash, arguing that the only reason it didn't fly in Bowley was that Bowley had not properly preserved the error. Careful trial judges will learn from Judge Puryear to grant defendants their motions to disregard to save the system from a world of headaches even though they will likely be vindicated in the end. Were I prosecuting such a case, I would be inclined to:

• ask a group of questions confirming that there was one bad piece of evidence after another in the oldest case,
  
• then confirming that the defendant took a plea in the case,
  
• confirm the punishment, and
  
• repeat for each prior case.
  
• Lastly, I would go through each of the damning pieces of evidence in the trial case, then ask, "You've decided to go for a jury in this case, huh?"