Frederick H. Garrett v. StateFrederick H. Garrett v. State
timony in violation of the Dead Man’s improper judgment. In addition, Gibbs Rule, which must be disregarded by this waived her complaint that the trial court Court in its review of the evidence.’’ She erred when it overruled her objections to also maintains that ‘‘Excluding said illegal- testimony that she claims violates the ly admitted evidence, but considering all of Dead Man’s Rule. Finally, the evidence is the other probative evidence admitted in a legally and factually sufficient to support light most favorable in support of the the jury’s answer to question no. 1. jury’s answer to Question No. 1, said re- The trial court’s judgment is affirmed. maining evidence is still legally, or alterna tively, factually insufficient, to support the affirmative answer to Question No. 1.’’ Specifically, Gibbs argues the testimony of Johnson, Turner, Steed, Waldroup, and Ramey relating to statements made to them by Finney have no probative value and cannot be considered as evidence to support the jury’s answer to question no. 1.
In issue three, we concluded that the testimony of Johnson, Turner, Steed, and Ramey was cumulative of other evidence, in particular, Bickley’s testimony. That testimony relates to Bickley’s performance and care of Finney and is described in our analysis of issue three. Further, in issue four, part (a), Gibbs acknowledges that Bickley’s testimony was corroborated by other witnesses.
We conclude the trial court did not err when it denied Gibbs’s motions for judg ment notwithstanding the verdict and new trial because there was legally and factual ly insufficient evidence to support the jury’s answer to question no. 1. Issue five is decided against Gibbs.
V. CONCLUSION
Gibbs has not shown that the trial court erred when it excluded evidence of lifetime gifts, transfers, benefits, and remuneration that Finney gave to Bickley. Also, even if the trial court erred when it overruled Gibbs’s hearsay and parol evidence objec tions, Gibbs has not shown that the errors were reasonably calculated to cause and probably did cause the rendition of an
Devon Anderson, Harris County District Attorney, Alan Curry, Assistant District Attorney, Harris County, Houston, TX, for State.
Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.
LAURA CARTER HIGLEY, Justice.
In Harris County municipal court, a jury found appellant Frederick H. Garrett guilty of the Class C misdemeanor offense of violating the rule adopted by the director of the Texas Department of Public Safety that prohibits a person from driving a commercial motor vehicle unless he is wearing a seat belt.1 The jury assessed punishment at a $250.00 fine. Appellant appealed to the county criminal court at law, which affirmed the conviction.2
In his appeal to this Court, appellant asserts the same two arguments that he originally raised in municipal court in his motion for new trial and then repeated in the county criminal court at law.3 He argues that the municipal court erred in denying his motion to quash the complaint because, based on the doctrine of in pari materia, he should have been charged under a different, more lenient statute, which makes it an offense to ride in a passenger vehicle without wearing a seatbelt.4 Appellant also contends that the trial court erred by incorrectly instructing the jury under the wrong statute.
We affirm.
Background
On September 4, 2009, Houston police officer J. Whitehead was assigned the duty of spotting commercial truck drivers who were committing seat belt violations. The officer was parked at a gas station located at an intersection when he saw appellant, who was driving a truck tractor hauling a load of gasoline. As appellant slowed down for a red light, Officer Whitehead observed that, although the truck tractor was equipped with a seat belt assembly at the driver‘s seat, appellant was not restrained. Officer Whitehead pulled appellant over and issued him a citation for failing to wear a seatbelt while driving a commercial vehicle.
The State‘s complaint charged appellant as follows: “... Frederick H. Garrett ... on or about September 4, 2009 ... unlawfully operate[d] a commercial motor vehicle which had a seat belt assembly installed at the driver‘s seat ... when not properly restrained with the seat belt assembly.” The basis for the charged offense is Title 49, Part 392, section 392.16 of the Federal Motor Carrier Safety Regulations (“Regulation 392.16“). The regulation prohibits a commercial motor vehicle, equipped with a seat belt assembly at
Texas law makes the violation of an adopted rule a Class C misdemeanor. See
Before trial, appellant moved to quash the complaint on the basis that Regulation 392.16, requiring drivers of commercial vehicles to wear a seat belt, is in pari materia with Section 545.413(a)(1) of the Texas Transportation Code, which makes it an offense for persons over the age of 15 years not to wear a seat belt when riding in a passenger vehicle equipped with a seat belt assembly. See
The case was tried to a jury in a municipal court of record. Officer Whitehead testified for the State. He stated that he saw appellant driving a commercial motor vehicle, equipped with a seat belt assembly at the driver‘s seat, and observed that appellant was not restrained by the seat belt.
Appellant testified in his own defense. He stated that he was delivering a load of gas to a station five miles away when he was stopped by Officer Whitehead. Appellant claimed that he was wearing his seat belt at the time. He stated that Officer Whitehead must have been mistaken regarding his belief that appellant was not restrained by a seat belt when he saw appellant driving the truck.
After the close of evidence, appellant objected to the proposed jury charge. He asserted that the jury was being instructed regarding the wrong offense. He claimed that the jury should be instructed regarding the offense of failure to wear a seat belt while a passenger in a passenger vehicle, as defined by Transportation Code Section 545.413(a)(1). Appellant argued that he should have been charged under Section 545.413 because that statute more specifically defines the offense of driving a truck tractor without wearing a seat belt in Texas. The trial court overruled appellant‘s objection and instructed the jury regarding the offense for which appellant was charged in the complaint; that is, violating Regulation 392.16. Concomitantly, the trial court instructed the jury that, if it found appellant guilty, it could assess a fine not to exceed $500, the fine associated with violating Regulation 392.16.
The jury found appellant guilty as charged in the complaint. It assessed a $250 fine against appellant.
Appellant filed a motion for new trial, raising two issues. He reasserted his argument that the trial court should have quashed the complaint. He maintained that the offense of driving a commercial vehicle without wearing a seat belt (Regulation 392.16) and the offense of failure to wear a seat belt while riding in a passenger vehicle (Transportation Code Section 545.413(a)(1)) are in pari materia. Appel-
Appellant also reasserted his claim that the trial court should have instructed the jury regarding the offense of failure to wear a seat belt while riding in a passenger vehicle, as defined by Transportation Code Section 545.413(a)(1). Specifically, appellant claimed that the municipal trial court should have instructed the jury that it could assess a fine of $25 to $50, as provided in Section 545.413(d).
The trial court denied appellant‘s motion for new trial. Appellant appealed to the county criminal court at law.5 In his brief, appellant presented the same two issues that he raised in his motion for new trial.6
In its written opinion, the county criminal court at law affirmed the trial court‘s judgment. It held that the trial court had not erred in denying appellant‘s motion to quash the complaint because Regulation 392.16 and Transportation Code Section 545.413 are not in pari materia. The county court also held that, because appellant had been charged under the correct statute, the trial court did not err by instructing the jury regarding the law under Regulation 392.16.
Appellant now appeals to this Court. The record and briefs from the county criminal court at law have been filed in this Court and constitute the record and briefs in this appeal. See
Motion to Quash Complaint
Appellant first challenges the trial court‘s denial of his motion to quash the State‘s complaint. In support of this issue, appellant claims that the offense of driving a commercial vehicle without a wearing a seat belt (Regulation 392.16), which carries a fine up to $500, and the offense of riding in a passenger vehicle without wearing a seat belt (Transportation Code Section 545.413(a)), which carries a fine of $25 to $50, are in pari materia. To support this claim, appellant asserts that the statutes cover the same general subject matter and have the same general purpose. Appellant argues that he should have been charged under Section 545.413(a)(1) because it “more specifically defines the offense of operating a truck without a seatbelt in Texas.” Appellant points out that a violation of Section 545.413(a)(1) carries a lower penalty. For these reasons, appellant asserts that his motion to quash the complaint should have been granted.
A. Standard of Review
An issue raised by an indictment, or as in this case a complaint, may present a question of law. See Bearnth v. State, 361 S.W.3d 135, 141 (Tex.App.-Houston [1st Dist.] 2011, pet. ref‘d) (citing Hollin v. State, 227 S.W.3d 117, 120 (Tex.App.-Houston [1st Dist.] 2006, pet. ref‘d)). The question is subject to de novo review when
B. The Doctrine of In Pari Materia
“The doctrine of in pari materia is a rule of statutory construction that seeks to carry out the Legislature‘s intent.” Jones v. State, 396 S.W.3d 558, 561 (Tex.Crim.App.2013) (citing Mills v. State, 722 S.W.2d 411, 413 (Tex.Crim.App.1986)). Statutes are in pari materia when they “deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons and things.” Id. (quoting Azeez v. State, 248 S.W.3d 182, 191 (Tex.Crim.App.2008)). The Court of Criminal Appeals has made clear that the statutes’ purposes are the most significant factor. Id.
The doctrine arises “where one statute deals with a subject in comprehensive terms and another [statute] deals with a portion of the same subject in a more definite way.” Id. (quoting Azeez, 248 S.W.3d at 192). The Court of Criminal Appeals has determined statutes to be in pari materia “where one provision has broadly defined an offense, and a second has more narrowly hewn another offense, complete within itself, to proscribe conduct that would otherwise meet every element of, and hence be punishable under, the broader provision.” Azeez, 248 S.W.3d at 192. The Court of Criminal Appeals has also made clear, however, that “[t]he adventitious occurrence of like or similar phrases, or even of similar subject matter, in laws enacted for wholly different ends will not justify applying the rule.” Jones, 396 S.W.3d at 561 (quoting Alejos v. State, 555 S.W.2d 444, 450 (Tex.Crim.App.1977)).
When two statutes are in pari materia, the doctrine requires that the statutes be “taken, read, and construed together, each enactment in reference to the other, as though they were parts of one and the same law.” Id. (quoting Azeez, 248 S.W.3d at 192). “Any conflict between their provisions will be harmonized, if possible, and effect will be given to all the provisions of each act if they can be made to stand together and have concurrent efficacy.” Azeez, 248 S.W.3d at 192. When statutes irreconcilably conflict, “the more detailed enactment ... will prevail, regardless of whether it was passed prior to or subsequently to the general statute, unless it appears that the legislature intended to make the general act controlling.” Jones, 396 S.W.3d at 562 (quoting Azeez, 248 S.W.3d at 192). “[S]uch conflict implicates due process rights that require the State to prosecute the defendant under the special statute where two statutes are in pari materia.” Id. (citing Ex parte Smith, 185 S.W.3d 887, 892-93 (Tex.Crim.App.2006)).
C. The Statutory Provisions
Section 644.051 of the Transportation Code, found in Chapter 644, “Commercial Motor Vehicle Safety Standards,” provides, in part, as follows:
(a) The director [of the Department of Public Safety] shall, after notice and a public hearing, adopt rules regulating:
(1) the safe transportation of hazardous materials; and
(2) the safe operation of commercial motor vehicles.
(b) A rule adopted under this chapter must be consistent with federal regulations, including federal safety regulations.
(c) The director may adopt all or part of the federal safety regulations by reference.
(d) Rules adopted under this chapter must ensure that:
(1) a commercial motor vehicle is safely maintained, equipped, loaded, and operated;
(2) the responsibilities imposed on a commercial motor vehicle‘s operator do not impair the operator‘s ability to operate the vehicle safely; and
(3) the physical condition of a commercial motor vehicle‘s operator enables the operator to operate the vehicle safely.
See
Under the authority of Section 644.051, the public safety director adopted a number of the Federal Motor Carrier Safety Administration‘s regulations in Section 4.11 of Title 37 of the Texas Administrative Code. See
(a) ... The director of the Texas Department of Public Safety incorporates, by reference, the Federal Motor Carrier Safety Regulations, Title 49, Code of Federal Regulations, Parts ... 390-393.... The rules adopted herein are to ensure that:
(1) a commercial motor vehicle is safely maintained, equipped, loaded, and operated;
(2) the responsibilities imposed on a commercial motor vehicle‘s operator do not impair the operator‘s ability to operate the vehicle safely;
(3) the physical condition of a commercial motor vehicle‘s operator enables the operator to operate the vehicle safely;
(4) commercial motor vehicle operators are qualified, by reason of training and experience, to operate the vehicle safely; and
(5) the minimum levels of financial responsibility for motor carriers of property or passengers operating commercial motor vehicles in interstate, foreign, or intrastate commerce is maintained as required.
Id.
In adopting Part 392 of the Federal Motor Carrier Safety Regulations, the public safety director adopted Regulation 392.16. See id.; see also
Regulation 392.16 was promulgated pursuant to Subchapter III, “Safety Regulations,” of the Federal Motor Carrier Safety Act. See
Here, the State‘s complaint against appellant tracked the language of Regulation 392.16. The complaint alleged that appellant “unlawfully operate[d] a commercial motor vehicle, which had a seat belt assembly installed at the driver‘s seat ... when not properly restrained by the seat belt assembly.” The Texas Legislature has made the violation of a federal regulation adopted by the state public safety director, such as Regulation 392.16, a
Appellant asserts that he should have been charged with the offense defined in Transportation Code Section 545.413(a)(1), failing to wear a seat belt while a passenger in a passenger vehicle. Section 545.413 is found in Subchapter I, “Miscellaneous Rules,” of Chapter 545, “Operation and Movement of Vehicles.” See
Under Section 545.413(a)(1), a person commits an offense if he (1) is at least 15 years of age; (2) is riding in a passenger vehicle while the vehicle is being operated; (3) is occupying a seat that is equipped with a safety belt; (4) and is not secured by a safety belt. See
B. Analysis
We begin our analysis of whether Regulation 392.16 and Section 545.413(a)(1) are in pari materia by considering the plain language of each provision and its contextual placement. When each provision is viewed in the framework of its respective statutory scheme, it becomes clear that, while the two provisions have similar subject matter, they were not written with the same purpose in mind or to achieve the same objective.
Regulation 392.16 is part of the regulatory scheme designed to minimize the threat to the public‘s safety posed by the operator of a commercial motor vehicle. As part of this regulatory system, Regulation 392.16‘s apparent purpose is to ensure the safe operation of commercial motor vehicles by requiring operators of these vehicles to wear a seat belt. This reading is confirmed (1) by the purposes stated in section 31131 of the Federal Motor Carrier Act, under which Regulation 392.16 was promulgated, (2) by the requisites of Transportation Code Section 644.051, the enabling statute authorizing Regulation 392.16‘s adoption, and (3) by the reasons stated in Administrative Code section 4.11 for adopting Regulation 392.16. See
The reading is also confirmed by the plain language of Regulation 392.16, which prohibits the driving of a commercial motor vehicle, equipped with a seat belt assembly, unless the driver is restrained by a seat belt. See
In contrast, Section 545.413(a)(1) targets a different class of people. It applies broadly to anyone over the age of 15 years riding in a passenger vehicle equipped with a safety belt. See
We further note that punishing the driver of a commercial motor vehicle for the
In contrast, the lower fine imposed on a passenger who fails to wear a seat belt indicates that the gravamen of that offense is the potential injury to the passenger. The lower fine supports the reading that the purpose of Section 545.413(a)(1) is to protect the passenger from injury resulting from his own conduct; it is not to ensure the safe operation of the vehicle in which he is riding.
Given that Regulation 392.16 and Section 545.413(a)(1) have different legislative purposes and target different groups of people, it is clear that the two provisions are not in pari materia.7 We conclude that appellant was properly charged under the complaint. The county criminal court at law correctly held that the trial did not err when it denied appellant‘s request to quash the complaint.
We overrule appellant‘s first issue.
Charge Error
In his second issue, appellant claims that “the trial court erred in charging the jury on the fine range of $0-$500 under the federal regulation instead of the $25-$50 [range] pursuant to the Texas Transportation Code.” Appellant‘s assertion is predicated on his argument in his first issue that he was incorrectly charged with the offense of violating Regulation 392.16, which carries a fine not to exceed $500. As discussed above, appellant was properly charged with the Class C misdemeanor offense of violating an adopted federal regulation, more specifically he was properly charged with violating Regulation 392.16. See
Conclusion
We affirm the judgment of the county criminal court at law.