People Versus Bates

Slow Moving Motor Vehicle in Downtown Waxahachie

• Ellis County at Law 2, Waxahachie, Texas
• Judge A. Gene Calvert, Jr
• Cases 10010052 and 10010829 (I'm not absoluetely positive I got this second number correct)
• Kristin Barnes, Prosecuting Attorney
• Bob Jones, Defense Attorney
• Representing an allegation of Reckless Driving on January 13, against Reed Bates by Ellis County

STEVE NOTE OVERALL: Looking at these notes, I clearly made more notes about the prosecution claims and assertions than I did about the defense. Overall, I did not observe the defense saying things that seemed peculiar, which probably reflects my bias to some extent – I have actually ridden with the defendant and I’ve read much that he has written. This bias is probably exacerbated by Mr Jones being a fairly soft spoken gentleman, while the prosecutor took a livelier style. I have no reason to believe that the difference in approaches affected the verdict, and the issues at hand were much different than in the previous Ennis City case. Keep this note in mind while reading the following.

Abbey A Optimistic Before Trial

Preliminaries
Proceedings began with a discussion about defense appeal of an Ennis City case, summarized here. That case was held on February 16 in Ennis Municipal Court. The prosecutor claimed that the appeal was filed too late (March 1). The defense claimed the appeal was timely. The judge abated the appeal discussion to allow an inquiry as to whether a written judgment referred to in the records, but not included, exists from the Ennis Municipal Court. The prosecutor requested to use Ennis judgment against the defendant in the case at hand. As will be seen, I think that request became irrelevant.

Defendant Reed, and Crystal, Before Trial

 Reckless Driving Alleged

In opening statements, the prosecutor indicated that on January 13, the defendant rode in the lane on Texas Highway 287 rather than on the improved shoulder and his actions deliberately, with conscious indifference, endangered people, thus rising to the level of reckless driving despite the defendant being on a bicycle.

 Three witnesses were called for the trial itself by the prosecutor. They were one of the 911 dispatchers, a firefighter who made one of the 911 calls, and the arresting Deputy Sheriff. Two added witnesses were sworn but did not testify during the trial itself. One testified briefly after the judgment.

First Witness
The first witness to testify was the 911 dispatcher, Nancy, who works in the Communication Division of the Sheriff’s Office. She indicated that 25 911 calls were made and that she took 15 of them. A CD was requested to be introduced as evidence. The defense objected to this as hearsay, but the CD was admitted as a basis for the initial stop.

The CD was quite long. After a few calls, callers were informed that an officer was on the way. Some were also informed that dispatch was familiar with the cyclist and he rode this route twice a week to and from the unemployment office.

CLARIFICATION UPDATE ON 911 CALLS
While the 911 calls on the CD were only admitted as to their relevance as the basis for sending an officer to contact Bates, I can't say what other importance the judge might have placed on them once they were heard. One thing I found interesting is that in at least a half dozen or so cases, callers were careful to note that it was NOT an emergency. The defense later emphasized this, as you might have expected them to. In several more cases, the caller didn't have a chance to actually complain about the cyclist. Upon hearing they were calling from Highway 287 between Waxahachie and Ennis, the dispatcher cut off the call with "The bicyclist? We have an officer on the way." After that, the caller would simply say thank you and hang up. The second witness was one of the callers. As I recall (I can't be certain so don't take it as Gospel), he was one of the ones that indicated it was not an emergency, but he also indicated it would become one. Perhaps that is why the Prosecutor did the "DRT" thing as noted in the paragraph below.

Second Witness
The second witness to testify was the firefighter, Lonnie, who has been a firefighter for 23 years in Ennis. Queried about the conditions, he stated it was “not night and not raining.” Traffic was characterized as normal (medium). In his testimony, he indicated that he saw tail lights coming on “quick” and that he was frightened that a collision would occur shortly. He stated that an 18 wheeler ran up on the cyclist and apparently didn’t see him. During questioning, he indicated he was a cyclist and rode in rallies, and he estimated the defendant’s speed as 15-20mph. He stated the cyclist was in the outside lane in the middle. He was asked about the slang term “DRT” and he responded that it stood for “Dead Right There.” There was no further pursuit of this item. He also indicated he knew who the cyclist was, though it was never clarified if he knew the cyclist from before the incident, afterwards, or during.

STEVE NOTE: I have no idea what prompted the “DRT” question from the prosecutor, other than I’d not heard it before and found it interesting. Perhaps she thought better of another line of questioning.

Upon cross examination, Mr Jones asked Lonnie if he drove to the rallies and Lonnie indicated he did. In response to questions, he indicated he rides the shoulder because it is safer and the event organizers request them to. He stated he has never ridden on Highway 287.

Third Witness
The third witness to testify was the arresting deputy, Emiliano. Emiliano patrols and answers calls for service and is a certified peace officer for the Ellis County Sheriff’s Department. He was dispatched to make contact with the defendant on Highway 287 “in the middle of the road.” He made contact about 5PM (1720 in his report). At the time, Deputy Emiliano was northbound. He sighted the defendant (southbound) on the southbound shoulder where an Ennis Police Officer had completed a contact. The deputy completed a U turn and went to speak with the defendant so the 911 call could be closed out. He indicated the defendant stated he had a right to be there and cited Texas law. He also said the defendant stated that if he’d been driving a horse-drawn buggy, he had a right to be there. In response to prosecution questions, he stated that "impeding" meant “going slower than the other traffic. He indicated that traffic was heavy.

STEVE NOTE: Watching the video, I would not characterize the traffic as particularly light or heavy. There were “clumps” of motor vehicles that included three or four vehicles, and gaps of ten seconds or more between “clumps.” Testimony matches fairly closely with Reed's account of the event, here, here, and here. You can probably find more accounts in his blog as well, but those should get you the basic idea.

The deputy stated he told the defendant to stay on the shoulder and not to get back on the roadway or he’d be arrested. The prosecutor asked additional questions about the rights and duties of cyclists and the deputy affirmed that cyclists have the same rights and duties as motor traffic. He further stated that if the cyclist had been against the white line, it wouldn’t have been a problem. After this questioning, a video was shown. The video consisted of two distinct portions. In the initial portion, there was no video other than that which could be heard from inside the Deputy’s cruiser. It shows the deputy conversing with the defendant. Notable items detectable from the sparse audio were “impeding,” “riding on the road,” and “knows the law.” At the conclusion of this first portion, which appeared to be immediately after the warning (no citation had been given at this point), the Deputy went back to his cruiser and, as he opened the door, the defendant merged back onto the roadway and proceeded on it. The second portion consisted of the Deputy putting his lights back on, and then arresting the defendant. The video went on for a long time on this second portion, but there was little in the audio beyond an indication that the defendant was cooperative, which the deputy had stated, and an assertion, by the defendant at the beginning that the deputy was endangering the defendant by telling him to ride on the shoulder.

In cross examination, the defense attorney made the point that Bates was attempting to explain the law and safe riding practice. He also elicited a clarification that “middle of the roadway” actually meant “middle of the right lane.”

Prosecution Rests
At the conclusion of the Deputy’s testimony and cross examination, the defense made a motion for a directed verdict on the grounds that the prosecution had not presented any evidence that the defendant was “willfully or wantonly” endangering anybody. The motion was denied. The prosecution rested.

L-R, Defense Attorney Jones, Waco, and PM

Defense Presents
The defense called Reed Bates as its witness. He is currently employed in Dallas, but at the time in question, he was unemployed and had to go to the unemployment office over about a four month period. He stated that he rode his bike everywhere, including Waxahachie, because he had no motor vehicle and no means of obtaining rides.

During questioning, he described Highway 287 as a 4 lane, 2 way highway with a median. He also went into added detail about his attempts to explain why he was operating within the Texas Vehicle Code. Specifically, he stated he was operating in accord with The Texas Transportation Code 551.103, exceptions 4a and 4b, and these were read to the court. He further stated in response to questions that he’d ridden Highway 287 at least 20 times with no incidents and considered the road perfectly safe. He also discussed alternate routes during questioning, and stated that neither alternate was practical or safe.

Prosecution Questions
The prosecutor questioned the defendant about the Texas Statute involving shoulders, particularly the portion that allows a cyclist to ride on the shoulder. In some rather argumentative questioning (most of which was successfully objected to), the prosecution claimed that the law gives the cyclist a choice, and he chose the dangerous choice, the middle of the lane. The words “common sense” were used quite a bit in this line of questioning. She also tried to elicit a concession that bike is less visible in the dark, which the defendant did not agree with, including a brief description of his Planet Bike Superflash.

STEVE NOTE: In the Deputy’s video, it is light when the initial contact was made, but was getting dark by the time the second portion was done. The stop was in January and my recollection is that things are pretty dark in North Texas by about 5:45 or so. I like the Superflash as well, though I have not customized my own, other than bending the contact a bit so it is more reliable than it used to be.

Everyone Rests & Closes

Bike Rack at Ellis County Court, but No Cyclists This Day!

Closing Statements
The prosecutor stated that a bike is a vehicle and the cyclist is subject to all of the rights and duties of any vehicle operator. She further emphasized that the cyclist had a choice to make whether to ride the shoulder or the traffic lane. Her contention was that he deliberately chose the dangerous option in view of the “heavy traffic” and “near collisions” when he had another legal option available that common sense indicated would be safer, and certainly would be safer to the other road users the defendant was endangering willfully.

The defense attorney stated “the law is the law” and the defendant was riding in full accord with two exceptions to the “far to right” rule. What’s more, he was riding in a manner that was safe, on a road he rode many times before, and that he had reason to believe that riding on the shoulder was more dangerous. What was more, the prosecution presented no evidence he was doing anything dangerous at all other than assertions by witnesses.

In prosecution rebuttal, the prosecutor stated that the cyclist did not follow the duties expected.

Before passing judgment, the judge asked about the definition of the edge of the roadway. Neither attorney could state for sure. The defense attorney offered to provide case law the next morning. He opined that he “thought” it probably treated the shoulder and roadway as separate and distinct entities (my words) and the judge indicated he (the defense attorney) was probably right.

Verdict
The judge began by noting that it was fine for a cyclist to ride on the roadway, but it must be in a safe manner. He indicated that Reed may well have actually BEEN safer riding in the lane on Highway 287. He then cited the high level of concern on the day in question and the defendant’s disregard of the officer’s request. He further noted that road safety included not only the defendant, but the other road users who might be unfamiliar with cyclists riding on a road such as the one in question. As a result, he was presenting a hazard and was guilty.

Disposition
The prosecutor called Ennis Officer Lance Watson to testify in support of a request for a stiff sentence. She attempted to show a video that showed a traffic stop by Officer Watson the day after the event just tried. Defense objected, the objection was sustained, and the Watson video was not shown.

The judge noted that traffic statutes needed to be considered as a body, including the minimum speed statute. He went on to note that the defendant’s actions were, in many ways, admirable and lawful. However, he drew an analogy from baseball. It is good for people to swing a bat and play the game. However, this good action can become dangerous as added people crowd into a space and swinging the bat can become a danger. Good judgment is required, since conditions vary.

After this, there was some discussion about how many days the defendant spent in jail. Records showed him there for 18 days. The sentence was as follows:

• 13 days in jail and $100 fine, with credit for time served.
• 5 days of jail time served credited against court costs (estimated at $512.10)
• The judge also offered to arrange a payment plan or community service if the defendant wished.

Postscript
Mr Jones and the other observers I knew expressed the sentiment that the judge was about the best that could have been obtained to hear the case. Reed indicated he wanted to appeal. Mr Jones also stated that he felt the decision was a close one and that was one reason the penalties were mild, and the judge did not press the defendant to accept the deal.

STEVE NOTE: I'm inclined to agree with Mr Jones regarding the judge and the judgment. It was definitely not your usual "racing, embracing, or 20 mph over the speed limit" reckless driving charge you learn about in Driver's Ed. On the way home, I observed a white pickup run off the right side of the traffic lane, across the rumble strip, and partway onto the shoulder of Highway 287, before recovering and moving back into the right hand lane.

This Truck Ran Off Onto the Shoulder Before Recovering as We Drove Home.
You'll Note It is Now Hugging the Lane Left Side. We Passed it with EXTRA Care

Applicable Texas Statute Links
Texas Reckless Driving
Texas Bicycle Operation on Road
Texas Operation on Shoulder