*1 Emily Hiram HARDY and Myers, Appellants
K. Tеxas. STATE No. PD-608-08. Appeals of Texas. of Criminal
OPINION
JOHNSON, J., delivered opinion the Court in PRICE, WOMACK, HOLCOMB, COCHRAN, JJ., joined. Cindy son, Sheehan lost her Casey, in the Iraq War in 2004. In August Ms. Sheehan Crawford, traveled to Texas, in an attempt to meet with President Bush about her son’s death. Ms. Sheehan’s ef- forts turned into an anti-war demonstra- tion that extended over an eight-month period.1 Appellants Emily Hardy and Hir- Myers am participated in the demonstra- tion. August
As the gained demonstration momentum, demonstration leaders cooper- ated with the McLennan County Sheriffs Department to ensure that the demonstra- tors violating were not any laws or creat- ing hazardous conditions. Because some demonstrators were encroaching on the roadway, Captain Sheriffs Vanek suggest- ed that the demonstrators move to a trian- (the gle of land triangle) by created intersection of three roads: Morgan Road west, on the Chapel Prairie diagonal- Road ly (229 east, on the north and and a short feet) unnamed road on the south. This triangle Camp was called Casey Appel- I. lants and other demonstrators erected small tents in this area. Because of com- plaints neighbors, from Captain Vanek asked the demonstrators to move from the Broiles, Worth, David Fort Appel- triangle shoulder, moved lant. from triangle to the bar on ditches John R. Messinger, Assistant Criminal Morgan west side of Road and the south Atty., Waco, District Jeffrey Horn, L. Van side the unnamed They road. were told Austin, Atty., State’s for the State. deputies sheriffs could be in 1. The during main grew demonstration occurred demonstration local Crawford resi- August Some demonstrators returned dence donated an acre for the demonstrators again challenge November and use; Camp Casey this was identified as II. constitutionality of ordinances enacted purchased Ms. Sheehan later five acres of county response August demon- land near Crawford. This area was named original stration. The area used in the dem- Camp Casey III. Camp onstration Casey was called I. As the IV)2 placed right-of-way being ditches, had to off of
the bar “right-of- and defined themselves. roads way” area the fences on as the between grew number of demonstrators II).3 *3 order (part The suf- county roads many as as 2000 and sometimes over and, because of poor drafting fered landowner neighboring A on a weekend. penalty no drafting, provided the poor land, of and an acre the use of offered the except removal of tent erecting a tent to that the demonstrators moved most of a pub- it was by county personnel because the congestion of area, alleviating much the lic order stated traffic. nuisance. and “in accor- county prosecute violators 2005, ma- there were no During August trespass of the criminal laws dance with and involving demonstrators jor incidents ordinance, response In to the new Texas.” At roadway. arrests for no changed policies the Office its as Sheriffs time, Department’s poli- the Sheriffs to the demonstrators. was to allow cy to the demonstrators as ditches to use bar because them the 2006, effort to On in an chal- on which could “public property lenge constitutionality of the tent ordi- the and their Demonstrators express views.” nance, tent on appellants erected a the deputies cooperated keeping in sheriffs in the south of the unnamed road area side sug- areas unobstructed. At the paved part in the new ordinance as of the defined deputies, parked of demonstrators gestion Captain in- right-of-way.4 Vanek was and cars in went to the site their Crawford of their in- formed the demonstrators suggestion dep- of by shuttle. Also at Along in advance.5 with 15 other tentions uties, and they used roads between the site officers, to the Captain Vanek went site. way create de such Crawford Smith6 Lieutenant read demonstra- one-way frequen- to reduce roads facto tors a “Notice.” meeting Captain other vehicles. Va- cy of that the demonstrators nek also testified safe, keep you In inter- order up the before left. cleaned area traffic, protect and ference with traveling public, we must safety of at After the demonstration ended first you of the stay insist off road. receiving of and after August, the end Furthermore, vehicles must nearby complaints from residents about parked stay on the road. You should heavy Camp congestion and traffic at road, park the bar ditches I, Casey September McLennan any vehicles the ditch area with no County Commissioners issued III) part sticking of the vehicle out into the prohibited (part tents “order” sewage receptacles (portable toilets)(part road. terms, part II and other
2. Part I dealt with demonstrators erected defined nuisances, arrested, charges V part against with civil dealt tents and were but enforcement of the order. were never them filed. definition, triangle 3. Under this existed, Although roadway 5. no public right-of-way, of of the owner Department voluntarily the Sheriffs closed abutting produced warranty deed some land adjacent to ditch the road the bar where the triangle private prove proper- were located. tents ty- offense, the time of the she was a appellants’ At ser- attempt 4. This was second to chal- geant. lenge Day Thanksgiving the order. On 27th, warnings, By September road. order dated give reasonable how- willWe County 2005 the McLennan commission- ever, with the di- comply fail to general ers court virtue of its author- road, of the or to off rectives county ity prohibited of [sic] appli- off of the move a vehicle way right erection shelters of the State of Texas will be cable laws county’s right of con- roads. enforced. county’s roads it a gives trol over the text continued with the The notice possession. Your use superior right 42.03(a) state- Tex. Penal Code way right violation B that violation was a Class misde- ment county’s regulation trespass. *4 in the towing and could also result meanor Therefore, please you be that warned offending vehicles. It concluded with immediately right must remove from the your cooperation for in maintain- ask “[w]e way you erected. the tents which have and safe over ing unobstructed so, you you may refuse to do be possibility road” and the of criminal in trespass arrested for criminal accor- they private property. if on trespass were Pe- dance with sub-section 30.05 of the then read to the demon- Lieutenant Smith In ease- public nal Code. addition the “warning.” strators upon property ment is limited to erection of a tent or tents Your incidents thereof. The travel and the Chapel of Prairie Road and right-of-way legal belongs underline title [sic] presents public Road Morgan have adjoining landowner owners who concerns and is hazardous. The that informed the Sheriffs Office right-of-way its are dedicated to object to the erection of such items on passes traffic both travel. Vehicular and considers such to property [sic] Occasionally, the road. direction easement. be in access [sic] may stray right-of-way into the vehicles Therefore, you are further warned accident, error, driver mechanical due to way the right remove from the tents problems, road conditions or will [sic] upon property trespass as such is a persons cause. It is unsafe for adjoining of the landowners. interest occupying proximi- structures in such your may do so result Failure to Furthermore, roadway. such ty to trespass. arrest for criminal action, for presents a hazard evasive a tent that had Appellants went into forcing the driver to choose whether grassy area on the been erected on take evasive action to avoid accident and re- of the unnamed road south side running person over a who possibly until were arrested. mained there erected occupying could be the structure the scene a line tapes Both video show right-of-way. on the chairs folding seated in of demonstrators Therefore, you are ordered to remove five feet up approximately that set wеre right-of-way out of the immedi- the tents and to the edge pavement of the ately. Failure to do so result pavement. closest to the of the tent west pursuant arrest to 42.03 of the your that are of the One of the two videos Penal Code. that, dep- before the sheriffs record shows arrived, property parked a full-size sedan7 was Please take notice uties of the tent closest directly erected a tent is to the east upon which have completely pave- off the County the road. It is right way of a McLennan shape grill suggests that the car is a late model Buick. 7. The ment, trial, and the Captain tent was farther off the road At Vanek testified tents dangerous people because in- than the All sedan wide. of the chairs side could not going see what was closer to the road than was that tent. around them and “could not react to some- A placed dirеctly second tent was thing that happen from the road- tent, of the first west next to the line of way.” testimony His indicated that his slightly chairs and behind it. A third tent concern the hazard created was erected behind the other two tents demonstrators was based on the specula- and was close to the fence. All three were tive and the abnormal: too two vehicles “pup” small average-size tents which an other, to pass wide each sudden mechani- adult upright could sit in the center. failure, cal equipment traveling farm at Everyone who inwas of the three such a speed pedestrians could not arrest, tents was arrested. Before each get back from the road quickly enough.8 Sgt. tent, approached Channon ex- When asked tents that have no sides plained prohibited tents were acceptable, would be he said that asked the demonstrator to the tent. leave would not be and agreed that the issue was Sgt. Channon can be heard on the video not *5 the protection people inside the tape informing the demonstrators tents, canopy; even if tents were they being violating were arrested for allowed, if unoccupied. even When tent any ordinance. He did not at time questioned about the April events of he approach anyone sitting in a chair. Dem- conceded that no one’s any on onstrators in who sat lawn chairs on the the three roads had been obstructed9 and side of the main next to the tents and the tents were not pavement, closer to the were not asked to paved area. Other law-enforcement wit- move, nor they were arrested. It is clear nesses also testified that pro- tents were testimony from the and the tapes video safety hibited for the of the demonstrators. that the offense for appellants Captain they Vanek also testified that arrested was not being so close to a road problems had had with the tents in the it, as to obstruct but for in being a tent set past, problems but no day existed on the in up in the “right-of-way” county road, aof however, question; they keep wanted to described in the ordinance. under got control before it out of hand. However, charged were later When asked whether were ob- violating 42.03, Ob- Tex. Penal Code structing the Captain said Vanek structing Highway or Passageway. Other “No, they not obstructing the actual The trial court granted appellants’ motions paved part street; of the were ob- joint trial, for a and the cases were tried to structing right-of-way.” He also stat- jury. ed that 8. The tlieme warning was continued in the hide off triangle to the side of die road on the that was read to the demonstrators: "vehicles give рickup additional clearance. Dur accident, stray right-of-way due to demonstration, ing April triangle error, driver problems, mechanical will [sic] off, roped and no demonstrators were in that Reporters conditions or other cause.” area. photographs State's exhibits 29-32 are Record, 3, p. vol. showing portable placed tents and toilets area, edge paved photo but these photographs 9. State’s exhibits 18-24 are graphs during August were all taken dem showing pickup a full-size truck and a white onstration. passing Suburban each other on the unnamed road. State's exhibit 20 shows the white ve- staying individuals tents this that all [w]ith tents were off of paved erected area, narrow, area, type very the roads are but “in the right-of-way” as defined barely enough county ordinance,10 wide for two vehicles to that a road is safely, and the pass right-of-way ditch, the same as a bаr that the notice the road to the fences is narrow also. she read instructed the demonstrators to if driving And someone was down the bar ditch park and to their type road and had some ditch, mechanical vehicles the bar and that failure on the possibly they gave vehicle or order she “to prevent intended thought oncoming another vehicle something that hadn’t happened yet.” She them, might that, hit have to take also testified at the time of the ar- rests, action and possibly go evasive into the “the entire roadway was closed be- sitting ditch. And someone in a tent cause of media or protestors or law en- be able to see the wouldn’t hazard com- forcement.” ing them ... toward are enclosed Defense counsel also asked Lieutenant tent, you
in a wouldn’t able to react Smith whether the demonstrators were on way. It is a issue. the roadway, and she rеplied, “No.” She
stated that the posed tents a hazard to the demonstrators because of the passing vehi- 14th, On we did not have to divert cles.11 Lieutenant Smith also testified that day. traffic that gotWe out there it would not be considered an obstruction and took care of the situation before it of the roadway to leave car the bar became a hazard. ditch, tent, but residing inside a or a tent *6 Lieutenant Smith testified that no traffic semi-permanent structure, as a would limit diverted, was no vehicles tried to drive a person’s ability to the surrounding view the unnamed area; therefore, down and no one was it was an deemed obstruc- unable to get by on the road. She agreed tion.12 page warning
10.[Defense]: The third is a and erected not on the street but off street. Is protesters County tells the about a McLennan that correct? 27, September order dated 2005. Is that right-of-way, yes, cor- Lt. Smith: In thе sir. Record, 79, rect? Reporter’s pp. vol. 82 Yes, Lt. Smith: sir. Department completely 11. The Sheriff's had order, copy It's not a [Defense]: but closed road closest to the bar ditch be- summary it's that someone wrote of the— crowd, large cause of the media and thus inteipretalion their of the order because the making an obstruction of traffic or a hazard- County McLennan passed Commissioners unlikely. ous condition prohibited being right- order that tents in the of-way defined as the line between questioned 12. When about what he consid- space the fences—or the between the fences. obstruction, stated, Sgt. ered an Channon "In that Is correct? mean, my opinion if I have a vehicle in the —I Lt. Smith: Yes. country middle of the and its tires are not touching roadway but two vehicles cannot your writing And pass going opposite [Defense]: observation in hitting directions without 14, 2006, report this was that depu- something, then its an obstruction of that responded Chapel ties to Prairie roadway.” Road at Mor- pass But if two vehicles cannot gan regards protesters erecting Road in safely to "obstructing” when the vehicle is com- is, roadway. tents pletely Is that correct? roadway, roadway off of the Yes, Lt. Smith: sir. necessity, so narrow it that violates Tex. video, 251.007, You’ve now [Defense]: seen the Trans. Code Classification of that, fact, Roads; you minimum, know County all of the tents were at a guilty, them and the trial jury exhibit found shown state’s was Sgt. Channon appellant court each depicted two fined conceded that $150.00. 21 and “on the little road” trucks, by side side Ap- to the Tenth appeal On road. The not off the that argued that the evidence peals, appellants continued. cross-examination to their legally was insufficient sustain probability it—what’s the the state failed to Is convictions because [Defense]: demonstrators people prove these with that created an obstruction that them beside a tent standing meaning Hardy all around 42.03. within State, a car come at such going (Tex.App.-Waco to have 250 S.W.3d are 2008). he can’t on the road that it speed argued The state obligation to drive on an ob- legal necessary prove fulfill its there was are the chances? of the street because pavement? What struction is it to assume that’s charged How reasonable with happen? street, going disobeying a reasonable by peace or request order move issued very I it’s Sgt. think Channon: officer to an obstruction of the reasonable. appeals The court of street. Id. reversed Record, 3, p. 109. Reporter’s vol. appellants’ judg- convictions rendered trial if she asked at When acquittal. It held that ments of stated, Hardy appellаnt potential possibility or for obstruc- know, roadway present must be you I tion of I in a street. And wasn’t for immediate conviction under testimony,] sheriffs’ [the listened —if 42.03(a)(2)(A). The not in- danger- ‘This is a statute does the officer had said: your possibility dicate that the remote of an concerned about place. ous We’re up to back obstruction is a violation. statute safety. We need tense, present statutory uses the and a are concerned about get out because we fu- possible I construction included your safety,’ gotten I would out. have entirely too being arrested for ture obstructions would be get didn’t want *7 By speak plain language, I to be able to broad. its section unsafe. wanted requires 42.03 that there be an actual get out.... I wanted to arrested as a immediately possible of ordinance. obstruction or an [the no-tent] result a passageway. obstruction of strеet or examination, Myers appellant On direct Id.13 that, stated if he have known that charged petitioned to be obstruct- The state this for dis- going he was with review, gotten he out ing roadway, cretionary asserting the would have that the court appeals the counsel also asked of not the of tent. Defense did review evidence intentionally knowingly light him he or the most favorable to the verdict whether street, replied, he “I absolute- it that the obstructed a when found evidence was insuf- ly Specifically, was not a street.” ficient. the state asserts that twenty causeway 311.012(a); must be feet wide a of § 13. But see Tex. Gov’tCode (In context, "causeway” at 12 least feet. this present future "Words the tense include the "shoulder,” seems to mean but it does not tense.” statute.) appear Twenty to be defined in enough feet is more than wide to allow two pass normal-sized vehicles to without inсi- dent.
421 42.03(a)(2)(A) § require proof beyond does a reasonable doubt of every there be an actual obstruction an imme- or necessary fact to constitute the crime with diately possible of or a obstruction a street State, charged. which he is v. Gollihar 46 that the court of in- passageway, appeals S.W.3d 243 (Tex.Crim.App.2001). Suffi- correctly its legal-sufficiency conducted ciency of the evidence by is measured the analysis by ignoring sup- evidence that the elements of offense as defined a verdict, and that offi- ported peace a hypothetically Malik, correct jury charge. subjective cer’s intent is to a irrelevant 235; Jackson, 953 at S.W.2d 443 U.S. at sufficiency of review the of the evidence. 307, 99 2781.14 S.Ct. granted We petition the state’s to review the court of appeals’s holding. Arguments of the Parties of Appellants
Standard contend that Review evidence insuffiсient legally to convict them of reviewing When challenge to disobeying prevent reasonable order to legal sufficiency of evidence to estab of obstruction a highway or street. Fur- offense, penal lish the of a elements we ther, assert of appeals court whether, viewing must all determine after correctly held that to convict defendant light the evidence in most favorable disobeying officer’s order move to verdict, any rational trier of fact could potential have found the essential elements of be hypothet- obstruction must more than a beyond offense a reasonable doubt. Kutz ical it possibility; must (Tex. imminently State, ner 994 S.W.2d 184 probable. Crim.App.1999); Virgi see also Jackson v.
nia, 307, 318-19, 61 U.S. S.Ct. argues The state court ap- (1979). L.Ed.2d 560 peals erred in its interpretation 42.03(a)(2)(A)
The Due Process because relied on protects Clause case against upon an accused conviction except pertains exclusively law that “Highway” Penal is defined in the obstruction of to-wit: Prairie Road, charge Crawford, jury "highway” Code. The Chapel Morgan defined Road and using part Transpor- Texas, of the definition found in public which the or substantial “ 472.021(d)(2): ‘highway tation access, Code public group you had then boundary street’ means the width between guilty. you will find Defendant do publicly way any part lines of a maintained you not so find and believe have a open for vehicular thereof, doubt reasonable then will find travel.” Transportation The definition in the guilty. the Defendant not *8 Code is more detailed. Further, you if find and from the believe beyond evidence a reasonable doubt that application charge The portion of the order, given, manifestly if was reason- jury Hardy’s appellant case read: NOW, scope, you THEREFORE, able in then shall find the Defеn- you if be- find and guilty. you dant If do do find and not beyond lieve from the evidence a reason- believe, Defendant, you or if have a reasonable doubt Emily Virgi- able doubt that the thereof, you will find Defendant Hardy, nia not McLennan Texas, guilty. State of heretofore on or about A.D.2006, you if Finally, find and day April, 14th believe did then there, beyond legal privilege authority, evidence a doubt that without reasonable order, given, intentionally promptly knowingly disobey rea- you obeyed, guilty. request sonable shall find the or order to move Defendant issued Smith, believe, Sgt. person you you Janet the defendant do not so find and or if thereof, authority peace knew to be officer with to have a reasonable doubt will premises, guilty. control the use of to Defendant find the 422 interest is favored (5)public over 42.03(a)(1), present is used for
§ private interest. Threadgill that It contends obstructions. State, 241 156 Tex.Crim. S.W.2d
v. Aids, 311.023, Sec. Statute Cоnstruction (1951), should not be used as 151, 152-53 tells us that pertains present it because to precedent statute, or not construing a whether [i]n The potential and not a one.15 obstruction ambiguous the statute is considered plain language also asserts state face, among consider its a court 42.03(a)(2)(A)makes that an ac- §of clear matters immediately possible is tual or (1) attained; object sought be Thus, argues it not a prerequisite. (2) circumstances under which the stat- for an actual obstruction requirement “the enacted; ute is absurd.” (3) legislative history; (4) statutory or former common law Statutory Construction Rules including upon the same provisions, laws of statutory first rule construc subjects; Our or similar presume legislature tion is (5) consequences particular of a con- Vasilas, it State v. 187 meant what said. struction; (Tex.Crim.App.2006) 489 S.W.3d (6) construction of the administrative State, (quoting Seals v. 187 S.W.3d statute; and The (Tex.Crim.Aрp.2005)). Code Con (7) title, emergency pro- preamble, “[wjords Act instructs that struction vision. con phrases shall be read context and 1.05(a) Code, Section of the Penal Con- according grammar to the rules of strued Code, instructs us that struction of usage.” Tex. and common Gov’t.Code strictly penal “rule that a statute is 311.011(a). code, § Section 311.021 of that apply construed does not to this code. Statutes, in Enactment of states Intention provisions of this code shall be con- import the fair their according strued statute, enacting presumed is [i]n terms, justice and effect the promote that: objectives of the code.” (1) compliance with constitutions Analysis of this state and United States is All of the few reported but one intended; import cases that address violation (2) statute is to be the entire intended primary § 42.03 offense ac as the involve effective; passageway tual obstruction of a and the (3) just and reasonable is in- result 42.03(a)(1). interpretation ' tended; specifically case deals (4) State, 42.03(a)(2), feasible of Bustillos a result execution intended; in- (Tex.Crim.App.1992), S.W.2d 668 also *9 roadway Threadgill Threadgill 15. fireworks with the in- sold from two semi- parked on the side of a in Harris charging trailers stead the customers cars of whose paved County and off the Customers area. roadway. were in the This Court held that stopped vehicles the their and on parking prohibit a vehicle statute did not creating a traffic hazard when of the some only parking public highway, in such part paved obstructed a customers’ cars of the way passage. to obstruct portion charged of road. The state of a passageway. county actual obstruction volved ordinance barred in structures appears that this case is one of right-of-way, Thus the statute under ap- which imрression: does a convic proof first what pellants prohibits were charged obstruc- 42.03(a)(2)(A) § pursuant require tion to tion of a road easement no actual obstruction occurred? when that is used for vehicular travel. In the statute, obstruct “means to render impass- § Penal Tex. Code 42.03 states that able or to passage render unreasonably (a) if, A an person offense commits hazardous,” inconvenient or but the state’s or legal privilege authority, without he emphasized evidence “obstruction” as the intentionally, knowingly, recklessly: or of ability lack of the demonstrators to view (1) obstructs a highway, side- their surroundings and thereby to be walk, elevator, railway, waterway, any impending aware of danger. Persons aisle, entrance, hallway, or exit sat who chairs next the tents were public which the aor substantial charged arrested and with obstructing access, group of the hаs or any highway chair because a “typically isn’t place the passage used for of large enough to obstruct one’s view.” The vehicles, conveyances, persons, or re- obstructed view of a demonstrator does of of gardless creating the means satisfy the definition of “obstruct” in obstruction and whether the obstruc- the statute —to impassable render or to tion arises from his acts alone or from render passage unreasonably inconvenient others; his of acts and the acts or or In usage, hazardous. common “high- (2) disobeys request or reasonable way” anis area that has been modified so person order to move issued it may used vehicular travel. actor knows to be or informed is a This meaning comports with the text of officer, fireman, person or a peace (a)(1), § prohibits which obstruction any authority to with control use of placе used for persons, premises: vehicles, or conveyances. The statute ex- (A) of a high- presses concern for the of those who way or areas those mentioned are traveling, not those who be on the (1); in Subdivision or side the road. state must therefore (B) to public safety by maintain dis- prove more than demonstrators persing gathered dangerous those gathered ditches, bar fire, riot, to a or other proximity haz- are areas that are not intended to be used ard. for vehicular travel.16 (b) section, purposes For of this “ob- impassable struct” means to render Appellants charged disobey- with render passage unreasonably incon- an ing reasonable to move order so that venient hazardous. they would not become obstruction as 42.03(b).17 appears The state county to conflate the defined Tex. Penal Code grammar, and the Read in with ordinance statute. While the accordance con- deputies keep 16. The stated intent of Both testified that under- persons point stood that the the civil-disobedience the tent from harm from im- challenging demonstration was or- danger pending apparently did not extend to tents, prohibiting dinance were in- way persons right seated in the and within violating charged stead 42.03 of the pavement. ten feet of the Code, Obstructing Highway Penal or Other Passageway. *10 pres- are at a time no vehicles usage, when text, person and a commits common obstruction, They present not a ent. are if, legal privilege or without an offense being impeded, not but as is authority, he to become an obstruc- potential have the (1) disobeys not they do approach tion if vehicles and (2) order move a to reasonable If is parade approaching move. the (3) authority a has by person who issued off the get them to authority an orders of premises, the use the to control so, any no of road and do violation (4) the is issued for reasonable order not do part of 42.03 is shown. the of obstruc- purpose preventing move, they be of diso- may then convicted of the other highway tion of a an prevent an intended to beying order (a)(1). §in areas mentioned a might “obstruct” obstruction. One also statutory of construc- Applying the rules by a at on- highway aiming light strobe tion, effect to the entire give we must traffic, coming thereby rendering passage just a arrive at and reasonable statute and hazardous, cavorting on but unreasonably feasibly be executed. We result that can gorilla the sidewalk while dressed as sought to object also be consider large A highway. would “obstruct” partic- consequences of attained and road, the side but object placed on of ular construction. sight in the line on curve in the of “obstruct,” might although also smaller object sought to be obtained
The clear
object in
location
not.
In
the same
ability
is to maintain
of
this section
sum,
to
an ob-
an
to move
order
vehicles,
to
conveyances
move
persons,
in the pre-
be reasonable
struction must
(§§ (a)(1),
freely
passageways
along public
vailing circumstances.
(a)(2)(A))
to
and to enable authorities move
away
citizens
from hazardous conditions
lan-
plain
This
follows the
interpretation
(§
(a)(1)
(a)(2)(B)).
unambigu-
Section
statute,
an
produce
of
does not
guage
actual
ously
to criminalize
ob-
intended
legislature
could not
absurd result
passageway,
of a
thus
struction
intended,
just
yet
possibly
produces
have
(a)(2)(A)
thing
mean
cannot
the same
feasibly
that can be
and reasonable result
we,
directed, give
part
to each
effeсt
of
circumstances,
present
In the
executed.
the statute.
an
to move would be reasonable
such
order
persons
milling
as to
about and
who
that,
conclude
because the
We
straying
highway.
onto the
It would
use
rather
legislature
“prevent”
chose to
applied
persons,
unreasonable when
to
“remove,” an actual
is not
than
obstruction
to
appellants,
such as
who were ordered
required,
we also conclude that
use
of the road
remain
the bar ditch and off
“prevent”
potential
of
indicates that a
ob
did so.
Considering
po
struction
must exist.
the initial
gave
Smith
tential
in relation
the When Lieutenant
14th,
on
she
warning
definition
used
“highway”
place
as a
vehicles,
the bar ditches
persons,
or con
instructed them
passage of
safe,
“keep you
veyances,
any potential
and off
the road
conclude that
we
traffic,
pro-
prevent intеrference with
capable
rendering
obstruction must be
pas
traveling public.”
to render
tect
highway impassable or
bar
warning
This
indicates that the
ditches
sage unreasonably inconvenient or hazard
the authorities
might
presence
An
considered
example
ous.
be the
demon-
road and that the
persons
area of a be a
standing
paved
*11
light
all
highway
Viewing
the evidence
not obstruct the
would
strators
verdict, no
most
to the
rational
favorable
in the bar ditch.
they remained
trier of fact could have found the essential
all testified
The state’s witnesses
beyond a
elements of the offense
reason-
actually
ob-
did
the demonstrators
Although
adopt
we do not
able doubt.
and that
the demonstra-
the road
struct
reasoning,
properly
court of
appeals’s
remained at all
tors, including appellants,
was legally
concluded that
the evidence
ditch,
сommonly
an area
in the bar
times
the verdict.
support
insufficient
parked
and
vehicles.
standing
used
court
judgment
ap-
affirm the
We
appel-
indicates that
Nothing in the record
peals.
lants,
in a small tent erected
by sitting
conduct,
by any
ditch or
other
the bar
KELLER, P.J.,
dissenting
filed a
unreasonably in-
more
passage
rendered
MEYERS,
opinion in which
KEASLER
by sitting
than
or hazardous
convenient
HERVEY, JJ., joined.
location. Neither is
a chair in the same
them-
that the tents
any
there
evidence
P.J.,
KELLER,
dissenting
filed a
made it haz-
passage or
selves obstructed
MEYERS, KEASLER,
opinion which
cited
the state are
ardous. The cases
HERVEY, JJ., joined.
all
an actual
involve
inapposite,
appeals
with the court of
problem
by an
not an order
passage,
obstruction of
is that it fails to consider
evi-
opinion
prevent
to move to
person
authorized
light
dence in the
most favorable
obstruction.
Unfortunately,
this
re-
verdict.1
Further,
requires disobedi-
the statute
peats the mistake.
prevent
move so as to
ence of an order to
charged by informa-
appellant
Each
The initial “notice” was a
an obstruction.
day
14th
alleging
April,
that on the
tion
required
order that
the demon-
reasonable
appellant:
to,
in, the bar
to move
and remain
strators
there,
legal privi-
did then and
without
However,
ditch,
they complied.
intentionally or know-
lege
authority,
“warning” to the demonstrators instructed
disobey
request
a reasonable
ingly
tents;
it did not
them to take down
by Sgt. Janet
to move issued
order
to move so that neither
order them
Smith,
person
the defendant knew
passage.
ap-
nor the tents obstructed
authority to con-
peace
be a
officer with
collapsed
had
the tents and sat
pellants
premises,
trol the use of
location,
they,
in the same
like
them
Prairie
to-wit:
obstruction of
who sat in chairs nеxt
demonstrators
Crawford,
Road,
Morgan
Chapel and
tents,
not have been arrested.
Texas,
public or a substan-
to which the
prohibition
based on the
The arrests were
had access.
group
tial
tents,
county
erecting
ordinance on
ditch,
ones,
empty
in the bar
not for
even
“Nothing in the records
says,
The Court
disobeying a reasonable order to move
by sitting in a
appellants,
indicates that
thereby
avoid be-
passageway
from a
in the bar ditch or
small tent erected
conduct,
more
appel-
Proof that
rendered
coming
an obstruction.
or hazardous
unreasonably
inconvenient
violated the
ordinance is
lants
42.03(a)(2)(A).
in a chair
the same
by sitting
than
violated
proof
(1979).
307, 318-19,
Sergeant Channon testified that people And asked, Lieutenant Smith5 was “And inside a tent would not be aware that a do believe that those tents and the vehicle coming. When cross-exam- people inside posed of the tents an ob- ined about how reasonable it was to as- sti’uction to that roadway?” She an- sume that a car would come at such a swered, “Yes.”6 speed that he couldn’t on the answered, the sei'geant “I think very it’s Video recordings of the offenses were reasonable.” introduced into evidence both the State 2. actually comparative issue is not paved part they were ob- danger of the two. structing right-of-way. People 3. standing chairs and around asked sergeant 5. She was a on the date of the of- arrested, to be but the officers refused to fenses. anyone arrest outside the tents because did not believe it was hazardous. Appellant’s objection question to the sustained, 4. Captain Vanek people also testified that the answer was but no instruction to the tent were disregard requested actual given jury. them, says appears the State The Court I have watched the defense. and the conflate the ordinance stat- support for they provide further ute, but it seems to me that was the do show Lieu- Not convictions. so, that first did and now it is the warnings, defense reading Smith tenant *13 trial, it the defense to the itself. At was close the tents were Court how show the order of the com- sought that to admit roadway. the paved part of objected, say- missioners court. The State appel- that there fact evidence So wаs anything trial doesn’t have to do ing “this lants, in a tent beside the by sitting Claiming ordinance.” the with the evi- unreasonably inconven- passage rendered irrelevant, con- prosecutor dence was the hazardous, in fact and there was ient or tinued, about 42.03 of the “This trial is ob- that the tents themselves evidence the Penal We don’t want confuse Code. made it hazardous. passage or structed an ordinance when it’s not what issue with court, simply reviewing we As charged the defendants have been with.” jury that The was disregard evidence. says, The “Proof that vio- Court it, that and we defer to entitled to believe proof the ordinance is not lated determination.7 42.03(a)(2)(A).” § True that violated assertions are a number of other There point is irrelevant. As far enough, but that refer to evi- opinion in the Court’s concerned, the State this case was as merit deference in a that does not dence ordinаnce; it simply about the never analysis. example, For legal-sufñciency § for violation of 42.03. prosecution says, “The demonstrators were the Court issues, it there confusion about the two is being at the scene that informed doing. is none of the State’s ordinance, violating for the tent arrested Also, “prohibits 42.03 saying ...” That is indeed they had intended of a road obstruction to, but the Hardy testified appellant what travel” easement that is used vehicular to believe obligation under no jury was language of ignore seems Court point, the testimony. More to the of prohibits statute or- county no-camping testimony about used for the “any place legal-sufficiency in a dinance is irrelevant State agree I persons.” do for violation relating to convictions review the lack of “obstruction” as emphasized of a state statute. to view their ability of the demonstrators testimony ap- quotes Court accu- surroundings, but even that were Hardy that if the officers had said pellant rate, legal-suffi- in a not matter protesters’ concerned for the they were Contrary to the conclusion ciency review. out of the gotten have she would Court, does not limit the statute inapt for a number quotation This tent. people on the road “hazardous” either to course, First, jury did of reasons. disagree the road. I must or off Second, testimony. not have to believe statement, expresses “The statute Court’s protesters to the the document read safety of those are concern for the who danger day explicitly of warned may be on the not those who traveling, tents, including by beginning, people in the side of the road.” Third, ...” it is keep you safe “In order to to be other are I believe ap- There what question of whether irrelevant the trial record discrepancies between pellants violated 42.03. State, (2007). Clayton S.W.3d 778 relatively August gotten are The situation in had opinion, and out the Court’s them, however, hand, quite I mention because enforcement minor. law officers— picture reasonably overall the situa- that from they affect the —wanted happening again. portrayed tion Court. be unreason- says the order to move would I respectfully dissent. applied persons “such as
able when appellants, who were ordered to remain
the bar ditch and off of the road and did totally But this misconstrues
so.” both protesters the order and the facts. The *14 They told to off the road. were also told would be arrested they got stayed into a tent. Those that off KARENEV, Appellant Nikolai Ivanov get road and did not into tent were got Appellants arrested. into tent arrested. It is in this sense STATE Texas. “ordered to appellants were remain the bar ditch and off the road and did so.” No. PD-0822-08. Another instance of confusion the Court Appeals Criminal of Texas. in saying agrеed that Lieutenant Smith right-of-way tents were “as 2009. defined ordinance.” I do find this modifier in Lieutenant testimony.8 Smith’s says, “During August
The Court major involving there were no incidents no demonstrators and arrests for obstruct- ing roadway.” testimony There effect, testimony there was also in August major disrup- there were tions and the “gotten situation had out of
control.” parked Several hundred vehicles get the ditches before officers could there and anything that would be a safety anyone. hazard to Photographs tents, cars, August protest show
and port-a-potties encroaching on the pavement, people sitting, standing, walking pavement. on the Implicit
the testimony of one of the officers is that
no arrests were made because there were
so many protesters and so few officers. ary I note publicly way any also that the Court's discussion of of a lines maintained usage "highway” common the term is un- open of which is for vehicu- necessary. charge jury "highway defines lar travel.” or street” as "the width between the bound-