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.

Texas Court of Criminal Appeals Overturns Mitigation Expert Strike

The Texas Court of Criminal Appeals overturned the punishment phase of a capital murder trial because the district court excluded the testimony of a criminal justice professor who would have testified that the defendant's responsibility was lessened and that he was less of a future danger because an older woman groomed him for a sexual relationship for approximately five years before the crime. It found that Dr. Donna Vandiver qualified as an expert on female sex offenders, that her testimony would assist the jury in determining Christian Olsen's moral responsibility for the crime and the likelihood that he would be a danger in the future, and that her testimony would have a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The erroneous exclusion of constitutionally relevant mitigating evidence offered by a defendant facing a possible death sentence requires reversal unless beyond a reasonable doubt it did not contribute to the punishment.
The district court thought that the opinion to be offered was psychological, and Vandiver admitted that she wasn't a psychologist. Vandiver's testimony was the best evidence that the defense had that Olsen shouldn't get a lethal injection.
I understand that one of Olsen's lawyers was Billy Carter. The error in the case seemed particularly well preserved.
Michael E. Keasler wrote the opinion for the CCA. Presiding Judge Sharon Keller concurred, explaining why she thought that this exclusion-of-evidence issue, normally not error of constitutional magnitude, was such in this case. Judge Lawrence E. Meyers dissented without opinion.
In short, it's easier to get a mitigation expert into a capital trial than it is other kinds of experts in other cases.
Thanks to CCA staffer Michael Falkenberg for correcting an error in an earlier edition of this post.

A Texas Trial Judge Cannot Rule Pretrial that Appellate Delay Makes Seeking the Death Penalty Unfair.

Texas's Court of Criminal Appeals has overruled a trial judge who stated that a capital defendant on retrial could not receive due process after being in the appellate system for approximately 30 years. Judge Cathy Cochran wrote the opinion for the majority which, along with her consisted of Presiding Judge Sharon Keller and Judges Paul Womack, Cheryl Johnson, and Elsa Alcala. Judge Michael E. Keasler wrote a concurring opinion in which he was joined by Judges Laurence E. Meyers and Barbara Parker Hervey. Judge Tom Price dissented.
Longtime Dallas judge John Creuzot made a pretrial ruling that the State of Texas, represented by the District Attorney Craig Watkins's office, could not seek the death penalty against defendant Jonathan Bruce Reed in his current retrial because the passage of approximately 30 years had rendered some of his punishment mitigation evidence unavailable. The State filed writs of mandamus and prohibition to undo Cruezot's actions. The Court of Criminal Appeals majority held that the State had no remedy at law and that the trial judge had a ministerial duty to not make such a ruling for the following reasons:

• There is no authority that Judge Creuzot has the power to make such a ruling pretrial;
• The United States Supreme Court has not recognized a claim like Reed's;
• The thirty years' delay worked in Reed's advantage-- when he was first tried SCOTUS had not changed the law so as to provide a legal basis for his claims;
• Although he may have lost mitigation evidence from his youth, the evidence of his behavior during his 30 years of incarceration will be fresh, better evidence than he would have had before;
• The harm of the delay challenges the State-- it has the burden of proof;
• Reed's complaint about the evidence is not yet ripe-- he might be acquitted; his mitigation evidence might be sufficient to save his life-- all his injury is hypothetical;
• SCOTUS says that problems from delay must be shown at a trial;
• The delay is not the State's fault-- it should not be punished for a delay it had no hand in.

Judge Keasler's opinion would be narrower. It would reach the same conclusion as the majority, but based only on the majority's last reason-- the State shouldn't be prejudiced for something that is not it's fault.
Judge Price did not think that it was categorically impossible that a prejudicial degradation of evidence caused by delay could not be determined pretrial. Therefore,the trial court does not have a ministerial duty to rescind its order-- that is, the State does not have a clear right to the relief it seeks.