ACCEPTED
01-15-00168-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/1/2015 3:58:10 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00168-CR
In the
COURT OF APPEALS FILED IN
1st COURT OF APPEALS
For the HOUSTON, TEXAS
FIRST SUPREME JUDICIAL DISTRICT12/1/2015 3:58:10 PM
At Houston CHRISTOPHER A. PRINE
Clerk
Appeal in No. 14-CCR-175454
County Court at Law Number One of Fort Bend County, Texas
GEORGE RAY MICHEAUX, JR.
Appellant
v
THE STATE OF TEXAS
Appellee
STATE’S APPELLATE BRIEF
Counsel for Appellee JOHN F. HEALEY
DISTRICT ATTORNEY
268TH JUDICIAL DISTRICT
FORT BEND COUNTY, TEXAS
JOHN J. HARRITY, III
ASSISTANT DISTRICT ATTORNEY
FORT BEND COUNTY, TEXAS
SBN # 09133100
John.Harrity@fortbendcountytx.gov
309 South Fourth Street, 2nd floor
Richmond, Texas 77469
281-341-4460 (Tel.)
281-238-3340 (Fax)
IDENTIFICATION OF PARTIES
Pursuant to Tex. R. App. P. 38.1, a complete list of the names of all interested
parties is provided below so the members of this Honorable Court may at once
determine whether they are disqualified to serve or should recuse themselves from
participating in the decision of the case.
Appellant: Appellee:
GEORGE RAY MICHEAUX, JR. THE STATE OF TEXAS
Counsel for Appellee/State: Address(es):
JOHN F. HEALEY, JR. Fort Bend County
District Attorney District Attorney’s Office
of Fort Bend County, Texas 301 Jackson Street, Rm 101
268TH Judicial District Richmond, Texas 77469
REBEKAH SAUNDERS (Same)
Assistant District Attorney
Fort Bend County, Tx.
(Trial)
LAUREN VALENTI (Same)
Assistant District Attorney
Fort Bend County, Tx.
(Trial)
JOHN J. HARRITY, III (Same)
Assistant District Attorney
Ft. Bend County, Tx.
(Appeal Only)
ii
Counsel for Appellant: Address(es):
KIRBY TAYLOR 2818 Cleburne
Houston, Texas 77004
(Trial and Appeal)
Trial Judge:
The Hon. Christopher G. Morales
County Court at Law Number One of Fort Bend County, Texas
iii
TABLE OF CONTENTS
SECTION PAGE
IDENTIFICATION OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
REPLY TO APPELLANT’S FIRST POINT OF ERROR. . . . . . . . . . . . . . . . . . . . 2
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iv
INDEX OF AUTHORITIES
CASES PAGE
Hicks v. State, 255 S.W.3d 351, 354 (Tex. App. - Texarkana 2008, no pet.). . . . . 6
Klepper v. State, No. 2-07-412-CR, 2009 Tex. App. LEXIS 1081 (Tex. App. - Fort
Worth Feb. 12, 2009, no pet.) (not designated for publication) . . . . . . . . . . . . . . . 6
Markert v. State, 2011 WL 2937428 (Tex. App. – Corpus Christi, July 21, 2011, no
pet.) (not designated for publication). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
STATUTES AND RULES
Tex. R. App. P. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Tex. R. App. P. 38.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Tex. Transp. Code Ann. § 541.304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tex. Transp. Code Ann. § 544.007(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8, 9
Tex. Transp. Code Ann. § 545.062. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
Tex. Transp. Code Ann. § 545.302. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 6, 7
v
STATEMENT REGARDING ORAL ARGUMENT
The State does not believe oral argument is necessary in the present case.
However, should the Court decide that it wants to hear oral argument in this case, the
State would request that it be allowed to present oral argument.
vi
No. 01-15-00168-CR
In the
COURT OF APPEALS
For the
FIRST SUPREME JUDICIAL DISTRICT
At Houston
Appeal in No. 14-CCR-175454
County Court at Law Number One of Fort Bend County, Texas
GEORGE RAY MICHEAUX, JR.
Appellant
v
THE STATE OF TEXAS
Appellee
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
This is an appeal of the trial court’s guilty finding of guilt where Appellant was
charged with the offense of stopping, standing or parking prohibited in certain places.
Tex. Transp. Code Ann. § 545.302. (C.R. 35).
vii
STATEMENT OF FACTS
The State challenges all factual assertions in the Appellant’s brief pursuant to
Tex. R. App. P. 38 and submits its account of the facts as follows and within its reply
to Appellant’s point of error.
SUMMARY OF THE ARGUMENT
The trial court correctly interpreted § 545.302 of the Texas Transportation
Code in finding Appellant guilty.
1
REPLY TO APPELLANT’S FIRST POINT OF ERROR
The trial court correctly interpreted § 545.302 of the
Texas Transportation Code in finding Appellant guilty.
Appellant was charged with the offense stopping, standing or parking
prohibited in certain places. Tex. Transp. Code Ann. § 545.302. (C.R. 35).
Specifically, the State charged that on or about the 4th day of September, 2013, within
the territorial limits of Sugar Land, Fort Bend County, Texas to wit: Elkins Road at
its intersection with Sweetwater Boulevard, [Appellant] did then and there unlawfully
stop, stand, or park said motor vehicle upon a public street in the city, county and
state of aforesaid, in an intersection and the operator was not stopping momentarily
to pick up or discharge a passenger when the same was not necessary for the
avoidance of conflict with other traffic and the operator was not complying with the
law or the directions of the police officer or official traffic control device and against
the peace and dignity of the State. (C.R. 9)(2 R.R. 5).
Officer Krachala testified that he was patrolling the area near Clements High
School, at Sweetwater and Elkins. (2 R.R. 14). Krachala testified, and the video
confirms that Appellant stopped in an intersection at Elkins and Sweetwater. (2 R.R.
15, 16). Appellant’s vehicle was on Elkins before he stopped in the intersection
2
heading north onto Sweetwater. (2 R.R. 19). By doing so, Appellant was blocking
Sweetwater southbound traffic. (2 R.R. 36). Krachala was in the left turn lane on
Sweetwater at Elkins and had a clear, unobstructed view of Appellant’s vehicle. (2
R.R. 20). Appellant entered the intersection “on green; and when he did, he stopped
in the middle of the intersection blocking traffic.” (2 R.R. 21). “His vehicle was
blocking all of the southbound Sweetwater traffic as well as the opposing direction
on Elkins.” (2 R.R. 21). Appellant was not able to maintain his speed to make a
complete turn because traffic had backed up into the intersection for at least a few
seconds before Appellant entered. (2 R.R. 22)(State’s Exhibit 2). The video does not
reveal exactly when Appellant entered the intersection, but it does show that it took
Appellant approximately thirty seconds to complete the turn. Appellant remained
stopped for “a total of nine or ten seconds.” (2 R.R. 27). Krachala testified that
Appellant never picked up or discharged any passengers, nor was his stop in the
intersection necessary to avoid conflict with any other traffic. (2 R.R. 27). Krachala
also testified that Appellant’s stop was not in compliance with the law or directions
of a police officer or in compliance with an official traffic control device. (2 R.R.
27). At one point Appellant’s light “changed to red” as he continued through the
intersection. (2 R.R. 23-24). Krachala then initiated a traffic stop just north of Elkins
based upon the violation. (2 R.R. 24). Krachala testified that it is legal to make the
3
turn “as long as he has somewhere to turn to.” (2 R.R. 30). Once the traffic ahead
of Appellant moved, Appellant moved forward, but Appellant should not have
entered the intersection. Rather, he should have waited at the stop line before he
entered the intersection until it was clear for him to go. (2 R.R. 31-32). Krachala
testified that under the circumstances, it was not legal for Appellant to enter the
intersection and that Appellant’s stopping in the intersection by itself makes it a
violation. (2 R.R. 33, 38, 47).
In his sole point of error, and without citing to the record, Appellant complains
that the “trial court erred in its interpretation of Texas Transportation code § 545.302;
and the trial court erred in failing to apply the exception to violations of Texas
Transportation Code § 545.302 found in Texas Transportation Code § 545.302(f).”
(App. Br. p.2)
Section 545.302(a)(3) of the Texas Transportation codes prohibits a driver
from stopping, standing, or parking in an intersection. Tex. Transp. Code Ann.
§545.302. Further, Tex. Transp. Code Ann. § 544.007(b) requires that an operator
of a vehicle must yield the right-of-way to other vehicles and to pedestrians lawfully
in the intersection or an adjacent crosswalk. Tex. Transp. Code Ann. § 544.007(b).
Section 545.302(f) provides that subsections (a), (b) and ( c) do not apply if
the avoidance of conflict with other traffic is necessary or if the operator is complying
4
with the law or the directions of a police officer or official traffic-control device.
Appellant argues that Appellant stopping momentarily in the intersection was
necessary for him to be in compliance with Texas Transportation Code § 545.062(a)
which states that “an operator shall, if following another vehicle, maintain an assured
clear distance between the two vehicles so that, considering the speed of the vehicles,
traffic, and the conditions of the highway, the operator can safely stop without
colliding with the preceding vehicle or veering into another vehicle, object or person
on or near the highway.” Tex. Transp. Code Ann. § 545.062(a). Appellant argues
that he was forced to stop as he crossed the intersection due to traffic in front of him
stopping and that in order for him to be in compliance with § 545.062(a), he must
follow at a “distance stop safely and not collide with the vehicle in front of him.
Here, this is what occurred.” (App. Br. p. 3). The testimony and video clearly reveal
that there were cars stopped in the intersection in Appellant’s left turn lane as he
entered the intersection. Appellant was not stopping to comply with § 545.062(a) by
keeping a safe distance, rather he created a situation where he had to stop due to
congestion already in the intersection known and visible to him, thereby violating §
545.302. This is not a situation where while making a left turn another pedestrian
or vehicle darted into his turn lane and he had to stop to avoid a collision. Rather,
Appellant could have stopped and waited before entering the intersection, which
5
would have left plenty of space between his truck and the vehicles stopped in the
intersection ahead of him. Stopping in the intersection was not necessary to comply
with § 545.062. Appellant’s actions were in violation of § 545.302(a)(3); Hicks v.
State, 255 S.W.3d 351, 354 (Tex. App. - Texarkana 2008, no pet.). Hicks argued that
“stopping or standing in an intersection for the brief time of three to five seconds does
not constitute ‘stopping, standing, or parking’ in an intersection as prohibited by
§545.302(a)(3) of the Texas Transportation Code. We disagree. The statute defining
the offense does not prescribe a minimum time the vehicle must be stopped for the
act to constitute an offense.” Hicks at 354. The record reveals that Appellant stopped
his vehicle several times in the intersection when it was clear that there was
congestion in front of him. Appellant was stopped in violation of Texas
Transportation Code Sec. 545.302. In Klepper v. State, No. 2-07-412-CR, 2009 Tex.
App. LEXIS 1081 (Tex. App. - Fort Worth Feb. 12, 2009, no pet.) (not designated for
publication) testimony from the arresting officer that he had observed Klepper
stopped in the middle of the intersection, past the limit line in the intersection,
partially in the left turn lane and partially inside the turn lane. After conducting a
traffic stop, Klepper admitted to being parked in the middle of the roadway. The
court of appeals held that the arresting officer’s statements that the defendant had
stopped completely past the limit line at a red light and that the defendant’s vehicle
6
was parked in the middle of the intersection, along with the defendant’s own
admission to conclude that the defendant had committed one or more traffic
violations.
Relying on § 544.004(a) of the Texas Transportation Code, Appellant argues
that he was complying with an official traffic-control device by entering the
intersection of Elkins and Sweetwater Blvd. on a protected left-turn arrow. Section
544.004(a) provides that:
(a) The operator of a vehicle or streetcar shall comply with an applicable
official traffic-control device placed as provided by this subtitle unless the
person is:
(1) otherwise directed by a traffic or police officer; or
(2) operating an authorized emergency vehicle and is subject to
exceptions under this subtitle.
Tex. Transp. Code Ann. § 544.004(a).
Section 541.304 fo the Texas Transportation Code reads:
In this subtitle:
(1) “Official traffic-control device” means a sign, signal, marking or device
that is:
(A) consistent with this subtitle;
7
(B) placed or erected by a public body or officer having jurisdiction; and
( C) used to regulate, warn, or guide traffic.
(2) “Railroad sign or signal” means a sign, signal or device erected by a
railroad, public body, or public officer to notify traffic of railroad tracks or an
approaching railroad train.
(3) “Traffic-control signal” means a manual, electric, or mechanical device that
alternately directs traffic to stop and to proceed.
Tex. Transp. Code Ann. § 541.304.
Section 541.304 provides two different definitions for “traffic-control signal”
and “traffic-control device”. Complying with a traffic control signal displaying a
green arrow does not give an operator an absolute right to enter an intersection.
Rather, Tex. Transp. Code Ann. § 544.007 ( c) allows an operator to “cautiously enter
then intersection to move in the direction permitted by the arrow” and to yield to
pedestrians and other traffic lawfully using the intersection. Tex. Transp. Code Ann.
§ 544.007( c). This clearly prohibits the operator of a vehicle from stopping in the
middle of an intersection. In Markert v. State, 2011 WL 2937428 (Tex. App. –
Corpus Christi, July 21, 2011, no pet.) (not designated for publication), the court of
appeals held that § 545.302(3) of the transportation code provides that an operator
may not stop, stand, or park a vehicle in an intersection. In the present case, the trial
8
court noted that it believed that Appellant entered the intersection legally on a green
light, the light did turn red while he remained stopped in the intersection. (2 R.R.
53). As the trial court noted, once the light turned red, Appellant was no longer
complying with the traffic-control signal because he was not stopped at a clearly
marked stop line as required by §544.007(d). (2 R.R. 32, 37). Appellant did not wait
at the designated stopping point until he could safely enter the intersection. Rather,
he entered the intersection and had to stop in order to avoid causing a collision.
The evidence shows that Appellant entered the intersection knowing that he
could not pass through it safely, creating the situation where he had to stop to avoid
colliding with other vehicles that were already stopped in the intersection.
Appellant’s actions compounded the gridlock seen on the video. Texas
Transportation Codes sections 545.103 and 545.151(a)(2) all speak to the requirement
that before an operator may enter an intersection, he must be able to enter safely.
Tex. Transp. Code Ann. § 545.103; Tex. Transp. Code Ann. § 545.151(a)(2). Here
there was no place for Appellant to enter the intersection safely. Once the light
changed for the cross-traffic to pass or if an emergency vehicle had needed cross the
intersection Appellant would have prevented them from safely proceeding through
the intersection. The trial court correctly interpreted § 545.302 of the Texas
Transportation Code in finding Appellant guilty and Appellant’s sole point of error
9
should be overruled.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, it is respectfully submitted that
all things are regular and that this Court find no reversible error in Appellant’s
conviction, affirm the judgment and sentence in all things, and order execution of the
judgment and sentence in accordance with the opinion of the Court.
Respectfully submitted,
John F. Healey, Jr.
District Attorney, Fort Bend County
268th Judicial District
/s/ John J. Harrity, III
John J. Harrity, III
Assistant District Attorney
Fort Bend County, Texas
SBN # 09133100
John.Harrity@fortbendcountytx.gov
301 Jackson Street, Room 101
Richmond, Texas 77469
281-341-4460 (office)
281-341-8638 (fax)
10
CERTIFICATE OF COMPLIANCE
This is to certify that in accordance with Texas Rule of Appellate Procedure
9.4(i)(3), this State’s Appellate Brief has been reviewed by the word count function
in WordPerfect, and contains 2689 words in its entirety.
/s/ John J. Harrity, III
John J. Harrity, III
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has
been forwarded to Appellant’s attorneys of record, Kirby Taylor, 2818 Cleburne,
Houston, TX 77004 or via email at attorney.taylor@yahoo.com, or via e-filing on the
date of the filing of the original with the Clerk of this Court.
/s/ John J. Harrity, III
John J. Harrity, III
11