News and Insights

If you're reading this, odds are that you've been ticketed for one or more traffic offenses at some point in your life.  Among the ticket-receiving public, misconceptions and misunderstandings abound regarding whether you should "fight" a ticket. Below is some advice from a former municipal prosecutor in the Dallas Fort Worth metroplex...

1) It is unlikely that you can just "talk to a prosecutor" and get your ticket dismissed.
Two to three times a week, most courts hold conferences between the prosecutor and citizens who have violated traffic offenses. During these conferences, most people go to the prosecutor immediately to ask for a dismissal on their citation. I would venture to say that in a metropolitan area, a municipal prosecutor gets asked for a dismissal between 25-50 times per week. Starting your conversation off with a prosecutor by asking for a dismissal is the least effective approach for negotiating a favorable result. The concept of a dismissal is WIDELY misunderstood and the bottom line is that dismissals are rare.

2) Instead of demanding your dismissal, start by pointing out legitimate issues with your ticket.
There are legitimate issues with citations. Those issues can result in dismissals. But for every one legitimate issue, there are one-hundred ridiculous excuses. A municipal prosecutor has heard them all and there is a really good chance that the prosecutor has heard your specific excuse many, many times. Most of the time, people come go to court with an assumption about the law and they hang on to it with everything they are worth. Do some research before coming to court to determine whether you have a "legitimate issue" or just "another excuse". Whether that means consulting with an attorney or jumping onto Google, come to court with a little research and you may actually put the prosecutor in a better mood.

3) Document your defense.
If you have documentation (especially on vehicle equipment issues, inspections, registrations, licenses, and insurance), bring it to court and have it ORGANIZED and ready for the prosecutor to look at. If there is some legitimate discrepancy between the status of your vehicle or license (on the date of the citation) and the citation you received you might actually get that all-elusive dismissal, but you had better have documentation to support your defense.

4) "Fine, I'll take it to trial."
It's got a nice ring to it, but the reality of a trial is that most cases will come down to the officer's testimony versus the defendant's testimony. More than likely, the officer will testify that he's been an officer for multiple years, been through training and education specifically for observing and enforcing traffic violations. He'll also testify that he spends 90% of his 8-10 hour shift in and amongst traffic observing traffic and that he was focused solely on looking for your vehicle violating a traffic law. Meanwhile, you'll testify (if you choose to testify) that you're number one priority was not following the traffic laws (I dare you to say that it was), but that you were on the way to work, dropping kids off at school, going to the grocery store or had some other objective in mind. The bottom line with trial: The officer will testify that he observed you commit a traffic violation and you'll testify you didn't and the judge or jury will decide who they believe.

5) If you really want a chance...
..hire an attorney. He or she will analyze your citation based on current law and the rules of evidence and procedure and not just based on what you heard from your neighbor's friend's ex boyfriend. Ultimately, you may decide that hiring an attorney would cost more than it is worth, but it you really want a fighting chance, you should hire an attorney.

In 2002, the United States Supreme Court determined that the Eighth Amendment to the U.S. Constitution's prohibition against cruel and unusual punishment bars the execution of mentally retarded persons. Atkins v. Virginia, 536 U.S. 304 (2002).

The Court reasoned that neither retribution nor deterrence could be achieved by executing mentally retarded persons and that, because mentally retarded persons have a reduced ability to participate in their own defense, there is an enhanced risk that they would be sentenced to death unnecessarily.  However, the Supreme Court left it to the individual states to determine which offenders fit the definition of "mental retardation," in order to enforce this constitutional restriction.

In Ex Parte Briseno, the Texas Court of Criminal Appeals established non-mandatory guidelines to determine "that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty." 135 S.W. 3d 1 (2004).  If an offender meets the definition of mental retardation, then the guidelines are designed to consider some more subjective criteria. The definition of mental retardation that the CCA adopted was:

(1) Significantly subaverage general intellectual functioning, generally shown by an IQ of 70 or less, (2) accompanied by related limitations in adaptive functioning, (3) the onset of which occurs prior to the age of 18.

If a person meets that definition, the following guidelines were designed to help factfinders in criminal trials focus upon weighing the evidence as indicative of mental retardation or of a personality disorder:

• Did those who knew the person best during the developmental stage - his family, friends, teachers, employers, and authorities - think he was mentally retarded at that time, and, if so, did they act in accordance with the determination?
• Has the person formulated plans and carried them through, or is his conduct impulsive?
• Does his conduct show leadership, or does it show that he is led around by others?
• Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?
• Does he respond coherently, rationally, and on point to oral or written questions, or do his responses wander from subject to subject?
• Can the person hide facts or lie effectively in his own or others' interests?
• Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

The CCA cautioned that these factors should not be considered in isolation, but rather in the context of the concerns expressed by the Supreme Court in the Atkins decision.

In 2012, the CCA considered a capital murder habeas case (Ex Parte Sosa) wherein the applicant alleged that he was mentally retarded at the time of the offense.  The habeas court found that the applicant established mental retardation.  The CCA cited some inconsistencies and ultimately remanded the case back to the convicting court for the judge gather more information and consider the Briseno factors in determining whether the applicant was (or is) indeed mentally retarded.

This is an interesting area of law to me.  I've had the occasion to dig into some literature on autism, and at first glance it would seem that some autistic indviduals (those that are higher on the spectrum) might satisfy the factors laid out by the CCA.  Of course, the Briseno and Atkins cases deal only with the death penalty and capital punishment, but as far as retribution and deterrence go, this could be good extenuation and mitigation evidence for the factfinder to consider in other cases as well.

Domestic Violence Case Law Update.  Continuous Family Violence.

Except for the military context, you've always heard that a jury verdict must be unanimous, right?  Well, not exactly.

Recently, the Sixth Court of Appeals (Texarkana) held that a jury does not have to unanimously agree upon which assaults occurred in order to convict a defendant for Continuous Family Violence, as long as the jury agrees that the defendant committed at least two assaults within the time allotted by statute. Under section 25.11 of the Texas Penal Code, a person who assaults a family member two or more times within twelve months commits Continuous Family Violence. The relevant statutes provides:

(a) A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71. 0021(b), 71.003, or 71.005, Family Code.

(b) If the jury is the trier of fact, members of the jury are not required to agree unanimously on the specific conduct in which the defendant engaged that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a) or the exact date when that conduct occurred. The jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a).

In Hill v. State, the appellant was charged with Continuous Family Violence after the State alleged that the appellant assaulted his girlfriend three times on two different dates within a twelve-month period. The jury returned a guilty verdict, and on appeal, the appellant contended that the trial court erred when it did not instruct the jury that in order to convict, the jury must unanimously agree upon which assaults transpired. Thus, of the possible assaults that may have happened, the appellant argued that some of the jurors cannot find sufficient evidence for one assault and the other jurors find sufficient evidence for another because "it is axiomatic that Texas law requires a unanimous verdict in a felony case."

Nevertheless, the Court rejected this reasoning. The State advocated following the way of the Continuous Sexual Abuse statute and allow jurors to not unanimously agree on which assaults occurred, so long as the jury agrees beyond a reasonable doubt that at least two assaults did occur within twelve months of each other. Adopting this rationale, the Court ultimately held, "In the circumstances of construing the statute under examination here, it is sufficient to allow a jury to select from a menu of possible bad acts and agree that a defendant committed two of them without the concomitant requirement that the jurors be shown to all concur as to which of the acts did occur."

As such, as long as a jury unanimously agrees that a defendant assaulted a family member at least twice within twelve months, it does not need to agree upon which assaults actually occurred.  (Note: this same logic applies to continuous sexual abuse cases as well.)

Jury Trial Sentencing in Texas

Every level of criminal offense in Texas has a corresponding punishment range for the jury to consider.  With the exception of enhancements or other minor differences, the Texas punishment ranges are as follows:

• Class B Misdemeanor = 0-180 days County Jail and $0-$2,000 fine
• Class A Misdemeanor = 0-365 days County Jail and $0-$4,000 fine
• State Jail Felony = 6 months - 2 years State Jail and $0-$10,000 fine
• 3rd Degree Felony = 2-10 years Prison and $0-$10,000 fine
• 2nd Degree Felony = 2-20 years Prison and $0-$10,000 fine
• 1st Degree Felony = 5-99 years Prison and $0-$10,000 fine

A jury verdict on sentencing should be within the punishment range to the particular offense.  But what happens if the jury deviates from the punishment range?

The Court of Appeals for the Seventh District (Amarillo) recently considered this scenario in Melton v. State. In Melton, the defendant was facing 2-20 years and up to a $10,000 fine if convicted.  The jury returned a sentence of 15 years in prison and a $15,000 fine.  Of course, the $15,000 fine was outside the punishment range.

The court of appeals wrestled with the option of remanding the case back to the trial court for a new sentencing hearing on BOTH the term of confinement and the fine or the fine only.  Ultimately, the court reasoned:

Article 37.10(b) contemplates that a jury can assess more than one type of punishment, to-wit: "punishment that is authorized by law for the offense and punishment that is not authorized by law for the offense . . . ." Because this statutory provision contemplates the situation where the period of confinement is authorized by law and the amount of the fine is not authorized by law, we conclude the Legislature intended to allow the reformation of a judgment as to the issue of the fine only.

Accordingly, the COA remanded the case back to the trial court for a new sentencing hearing on the fine only.  The term of confinement was sustained.

DWI Conviction Overturned | Passing on the Shoulder Permitted in Certain Circumstances

In many ways, Texas Court of Criminal Appeals also acts the State's highest traffic court. What follows is a synopsis of Lothrop v. State, wherein the CCA opines on the legality of using the right shoulder of a road to pass a slower vehicle.

In Lothrop, the police stopped Appellant after observing him use the right shoulder of the road to pass a vehicle that was slowing down.  Appellant was later arrested for Driving While Intoxicated (DWI). At trial, he filed a motion to suppress the evidence gained from the stop, arguing that the police officer did not have reasonable suspicion to make the stop. Appellant pointed to Section 545.058(a) of the Texas Transportation Code, which provides:

(a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway of that operation is necessary and may be done safely, but only:

(1) to stop, stand, or park;

(2) to accelerate before entering the main traveled lane of traffic;

(3) to decelerate before making a right turn;

(4) 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;

(5) to allow another vehicle traveling faster to pass;

(6) as permitted or required by an official traffic-control device; or

(7) to avoid a collision.

The trial court denied the motion and Appellant pled guilty to DWI. The 2nd Court of Appeals (Fort Worth) affirmed the conviction, holding that "driving on an improved shoulder, regardless of circumstance, is prima facie evidence of an offense, and that Section 545.058(a) merely establishes defenses that a defendant may raise at trial."

Think again, said the Traffic Court (a.k.a. CCA):

[T]he offense of illegally driving on an improved shoulder can be proved in one of two ways: either driving on the improved shoulder was not a necessary part of achieving one of the seven approved purposes, or driving on an improved shoulder could not have been done safely. Merely driving on an improved shoulder is not prima facie evidence of an offense. Thus if an officer sees a driver driving on an improved shoulder, and it appears that driving on the improved shoulder was necessary to achieving one of the seven approved purposes, and it is done safely, that officer does not have reasonable suspicion that an offense occurred.

With that, the CCA reversed the Court of Appeals and remanded the case back to the trial court.   So there you have it - your traffic lesson for today from the CCA. You are free to drive on the improved shoulder of the road (without worrying that you will be pulled over) IF you are doing it safely and for one of the seven listed purposes.