Saturday, February 03, 2018

What is a catch? What is driving on the shoulder? Video leaves CCA judges and NFL refs parsing fine details #DezCaughtIt

With this being Super Bowl weekend, Grits can't help but observe that the debate at the Texas Court of Criminal Appeals over whether someone is driving on the shoulder greatly resembles the debate in the National Football League over what constitutes a "catch." (#DezCaughtIt)

The amount of hair splitting that's possible in interpreting both rules - abetted by instant replay in the NFL and dashcams on police cars - nearly beggars belief. The Austin Statesman offered rare coverage of the latest CCA case deciding matter.

In this instance, the Government-Always-Wins faction split (with Judge Barbara Hervey joining Bert Richardson's main opinion) and common sense prevailed, but not without a hot debate over whether driving on the "fog line" separating the road from the shoulder is the same as driving on the "improved shoulder," which is a criminal offense.

The Seventh Court of Appeals had ruled that a traffic stop based on a vehicle's tire touching the fog line was invalid, upholding the trial court's suppression of evidence garnered from the stop. Judge Bert Richardson's opinion endorsing that parsimonious view ruled the day, but Presiding Judge Sharon Keller, joined by Judge Keasler, offered a spirited, hair-splitting defense of the officer's decision to arrest. According to Judge Keller:
the trial court found that the traffic-stop video showed Appellee’s vehicle’s 'right rear tire (or its shadow) . . . to come in the proximity to and possibly touch the inside portion or more of the white line delineating the roadway from the improved shoulder . . . but not to extend past the . . . outermost edge of the fog line.'
And since she considered the line part of the "improved shoulder," she would uphold the stop and subsequent search. Judge Yeary offered another, suggesting the majority reached the issue improperly.

This was a debate about pretext stops. How pretexty can they really be? Does the pretext matter at all?  Can the excuse for the stop be complete bullshit, or will mostly bullshit suffice? In this rare pro-defense ruling, the CCA sided with judicial restraint and common sense. But among members of the court, it appears to have been a hard-fought victory.


Anonymous said...

I'm not sure I would call it pro-defense, as much as common-sense. From the start of this case at the District Court, all the way through two trips to the COA and two trips to the TCCA, a total of 13 judges were involved in the process. Of those 13, only 3 thought this was a valid stop - or wanted to send it back to the COA for a 3rd time. Ten judges had enough common sense to stop the run-away train, thank God!

Anonymous said...


Steven Michael Seys said...

This is another case that illustrates to Texas voters that it's past time to replace Killer Keller and her clique on the CCA. These so called justices make a mockery of Texas jurisprudence and a laughing stock of the state.

Gritsforbreakfast said...

@8:02, pro-defense in the sense that the prosecution lost and the defense won. Also, the fact that even three out of 13 ruled that way - especially when the 3 are all on the CCA and include the presiding judge - still is concerning.

@ Steven, you have a chance to vote against Keller in the GOP primary. I have no first-hand knowledge, but word among Republicans is she may be in trouble.

Anonymous said...

Obviously judges have too much time on their hands and the ranks need to be thinned.

Once again the huge jobs program of Texas so called crime and punishment shows how tax dollars are wasted by pseudo judicial "pole vaulting over mouse turds."

Time to cut back on this waste, fraud and abuse and put the money into the road network---something that will help all.