*1
187
§
of dollars
assemble the data needed to
(requiring factfinder to consid-
damages
determine its
er nature of the wrong, character of con-
—information
Retamco asserts Paradigm possessed and
involved,
duct
degree
culpability,
of
Agreement.
owed it under the 1984
extent
to which conduct
public
offends
justice
sense of
in determining exemplary
Although punishment may be a
damages); see also
ofGoher,
In the Matter
legitimate consequence
discovery
of a
Specialty Inc. v. reversed and the case is remanded to the 472, (Tex.2008); S.W.3d In re SCI Tex. trial court for further proceedings consis- Servs., Inc., Funeral 236 S.W.3d tent with our opinion. (Tex.2007) curiam). Moreover, (per dis covery primarily sanctions are intended to Justice GREEN did not participate in remedy discovery abuse and should be. tai the decision. purpose. lored serve their remedial It apparent barring is not Paradigm’s
participation post-default damages
phase any purpose case served punishment.
than
Compensatory damages post-default
awarded should compensate loss, injured party penalize for its not LOTHROP, Donald Appellant, Adams wrongdoer plaintiff allow the Stutzman,
windfall. See Torrington Co. v. (Tex.2000) (noting 848-49 STATE Texas. that the role of compensatory damages is No. PD-1489-11. fairly compensate the plaintiff, pun- defendant). ish the although punitive And Criminal of Texas. damages are punish intended to 9,May wrongdoer, they nevertheless must bear some relationship liability-producing
conduct. See Tex. Prao. & Civ. Rem.Code *2 Green, Decatur, Appellant. for
Barry (a) Stainton, may An Carper, operator drive on Robert an im- James proved State. of the main traveled roadway if that WOMACK, J., opinion delivered operation be done *3 Court, MEYERS, PRICE, in which the safely, only: JOHNSON, HERVEY, COCHRAN, and (1) stand, stop, park; to or ALCALA, JJ., joined. (2) to accelerate before entering the to construe the requires This case us traffic; main of traveled lane driving on the shoul- regulates statute (3) to before making decelerate a road. der of turn; driving west on appellant High- The was (4) pass to another vehicle that Boyd. crossing, 114 in At a railroad way slowing or on the stopped main trav- down, car front of him slowed the portion highway, disabled, eled of the appellant the used an turn; or preparing to make a left they slowing the ear crossed the to Estel tracks. Police Officer was (5) to allow another vehicle traveling driving 114. Estel east on ob- pass; faster to appellant’s driving stopped the served (6) permitted required by or an illegally driving for on an him device; official traffic-control For reasons not contained in shoulder. (7) to avoid a collision. record, was appellant the the arrested for driving appellant while argued intoxicated. The he was “passing] vehicle that [was] slow- another trial, appellant Prior to his the DWI ing ... on the main traveled of the to suppress moved all evidence obtained as highway....” court The trial denied the on the a result of the traffic basis that stop to suppress appellant motion and the pled stop improper Estel’s traffic because was to DWI. guilty did not have Estel reasonable appellant the a crimi- had committed of Appeals Second Court The affirmed hearing, nal At the suppression offense. that driving the conviction.1 It held was the He Estel witness. testified regardless of circum- he saw the car that was stance, prima facie evidence of an of- appellant front the down at the slow fense, 545.058(a) and that merely Section the appellant railroad and he saw establishes defenses that defendant slowing car on shoulder. Es- at trial.2 of Appeals raise The Court anal- stop tel said that he initiated traffic ogized the it read in “defenses” Section solely based on that behavior. He did not 545.058(a) self-defense, to the defense of testify that appellant’s driving was un- and determined that same burdens of safe, or that violated appellant applied: produce must proof the State evi- laws. offense, only of the basic and it dence produce to appellant argued that his the defendant’s burden evi- legal under of each element of the defense. In Transportation Code sec- dence 545.058(a): Appeals determined Court Id.., 02-10-00317-CR, Lothrop 2011 at *3. No. Tex.App. LEXIS WL 7, 2011) (Tex.App.-Fort Worth December (mem. op., designated publication). not shoul- allows a driver to use in Section that the “defenses” to make a preparing a vehicle der elements: defendant of three consist turn, an action would never left but such driving on the shoulder “that must show could (2) absolutely necessary-the driver (1) necessity, out was done left- to a behind the simply come (3) one of the seven to effectuate turn. vehicle and wait for turning Af- in the statute.”3 enumerated defenses However, plainly the statute envi- since appellant determining then ter shoul- legally using improved drivers sions passing that his produced evidence had vehicles, pass left-turning ders order safely and of the shoulder was done “necessary” mean interpreting absolute- deter- necessity,4 *4 legislative necessary would thwart the ly carried his burden that he had not mined intent. and that Estel had reason- production stop. for the traffic able driving, “nec- general In the context of a essary” may necessary refer to to avoid Appeals’s with the Court of disagree We collision,5 the But that cannot be how First, we do not read statutory analysis. “necessary” in stat- legislature meant “necessary” is a free- the statute such ute, avoid a collision” is one of because “to discussing When standing requirement. enumerated reason to drive on an seven “necessary,” particular a action is whether legislature shoulder.6 If the had improved Necessary inquiry always: is the relevant be used improved intended that shoulders a By treating necessity as to what end? collisions, it would not have only to avoid requirement, without con- free-standing listed the other six allowable reasons.7 text, Appeals ignored the Court were, inquiry. question If the “When meaning to only way give improved on an shoulder absolute- every word of Section while us necessary?” agree we would with ly ing meanings avoiding redun common Appeals imagine that it is hard to Court of “necessary” is to read in the con dancies in which it is. a scenario permissible reasons. text of the seven 545.058(a)(5) a Thus Section would read: legislature gave But the us statute may improved “An drive on an operator several situations in which driv- that lists right to the of the main traveled may permitted, be shoulder ing on shoulder absolutely portion roadway operation of a if that most of which would never be (a)(4) instance, safely ... necessary may be done necessary. For subsection word, clause, phrase, and each and sentence Ibid. given reasonably possi- be effect if should ble."). ("It imagine a Ibid. would be difficult to an action would be either scenario when such safe, Indeed, presented by necessary "necessary” only and none was if meant 7.See id. collision,” appellant.”) "necessary legisla- to avoid a not have listed of the seven ture would reasons, State, "necessary” appears in the first as 5. See Prudholm v. 333 S.W.3d ("[W]e may presume If we insert this defini- (Tex.Cr.App.2011) clause of statute. statute, "necessary” purpose, in a tion of into the subsec- each word the statute has (a)(7) wholly defined in the statute are used becomes redundant: "An that words not sense.”). ordinary operator may in their and common drive of the main traveled necessary roadway operation if that Dowthitt v. 6. See 1996) (We may done "[ejvery avoid a collision and (Tex.Cr.App. presume that purpose avoid a collision.” been for a word a statute has used traveling proved allow another vehicle faster to shoulder. Estel testified that the pass.”8 Allowing another vehicle driving car in front of appellant slowed down pass necessary, faster to is not but if a noticeably, and appellant then driver wanted to allow a vehicle driving used the shoulder to pass the necessary faster to and it was to drive car, slowed authorized Section so, improved shoulder order to do 545.058(a)(4). Estel did testify 548.058(a)(5) Section allows the driver to using shoulder car was un- do that so as it long safely. be done necessary to (ie., slowing vehicle appellant could have safely passed in This does up shifting- not set traffic), the lane by oncoming used and the burden, framework, self-defense-style fact that Estel himself was driving toward Rather, Court of believed. the appellant strongly implies that the lane illegally shows that the offense of by oncoming used traffic was unavailable on an improved shoulder can be proved passing. Estel did not testify that ways: one of two either driving on the using the shoulder to was unsafe. shoulder was not a Thus there was no evidence that Estel saw part achieving ap one of the seven *5 the appellant driving in a manner inconsis- proved purposes, or driving on the im 545.0548(a)(4). tent with Section proved shoulder could not have been done safely. Merely on driving improved an of Appeals erred in affirming prima shoulder is not facie evidence of an the trial court’s denial of the appellant’s offense. Thus if an officer sees driver motion to suppress. We reverse the Court shoulder, and it of Appeals’ judgment and remand this case appears that driving on the to the trial court for proceedings consisr shoulder was achieving one of tent opinion. with this approved purposes, seven and done that officer does not have JOHNSON, J., concurring filed a suspicion reasonable that an offense occ opinion. urred.9 While there be circum in arguably legal stances which behavior KELLER, J.,P. concurred in the might produce reasonable suspicion of an judgment. offense, legislature here the explicitly legal.
made certain behavior It would vio KEASLER, J., dissented. legislative
late intent to allow that behav JOHNSON, J., a concurring filed ior to serve as the basis of a traffic or opinion. arrest. Driving on the shoulder over a
Applying interpretation railroad is, crossing in places, very facts of this we most hold that Estel did unwise. areas, not have ap reasonable that the In rural the shoulder sometimes pellant illegally driving on an im- does not continue the crossing, across only" 8. We omit "but specific, because it does not ists if the officer has articulable facts appear any given that, to have a functional role in when combined with rational inferences application conveys only of the statute. It facts, from those would lead him to reason- that the statute’s list of to drive reasons ably particular person conclude that a actual- improved shoulder is exclusive. is, been, ly engaged has or soon will be activity.”). criminal 9. See Castro v. ("Reasonable (Tex.Cr.App.2007) suspicion ex- A. difficulty Right. and very rough for a ride making a vehicle. If the maintaining control of Q. right. All by leveling has been crossing by They A. were side side. be- plates of metal and the installation Defendant was Q. Okay. And once the plates leveling and tween the shoulder, actually pass the on the did he as the may not extend as far to sides him to his— vehicle that was beside crossing signs are does. If there A. Yes. one ‘driving puts on the shoulder gates, or Q. Okay get he back on to Did —left? close, close, perhaps proximity too the main of the— posts protruding parts. supporting here de- you up [to A. If come back all, a railroad track on All in over 1], you I’ll show about the fense exhibit not, generally in front of Rock actually splitting road safety is exacerbated unsafe. Lack of goes where it to two lanes. Island the shoulder with- crossing the tracks on both in they passed, they When were slowing. out their lanes. 1,000 persons a town of about he Q. go passed Did he the vehicle —so the northwest of Fort Worth at lies to pro- lane he remained on the inside the intersection of state lane; is that ceeded over to outside Farm to paved highway, undivided correct? During suppression Market Road 730. A. Yes. offi- hearing, arresting the state called the *6 cer. I R.R. at 9-10. Q. you coming did come about [H]ow testimony suggests that The officer’s Lothrop? with Mr.
into contact coming 114 is a two-lane road traveling east, A. I east bound on 114 was Boyd just into from the west of road, also considered about the 200 block it becomes a four-lane Island. I observed two vehicles Rock each This is con- with two lanes on side. the railroad tracks. I ob- approaching firmed defense exhibit 1. down to cross served one vehicle to slow cross-examination, Later defense I
the railroad tracks. saw second counsel asked about the officer’s view of at the rail- vehicle on the shoulder the two vehicles. going road tracks. Both continued Q. you tell me that Did that vehicle on I initiated a traffic westbound. that had been in front of the Defendant stopped vehicle that on second that vehicle had slowed? shoulder. Right. A. It had slowed sown. Q. clarify couple things Let me Q. Tell me about—tell me about that. here. 114 into from the coming people, they’re very if familiar Some it a two lane road? east is a-is area, with an roll over the track. Other Right. A. It’s a two lane road at the they’re going through if an area people railroad tracks. nature of the rail- and don’t know the I R.R. at 4-5. rough road track don’t know how that’s cross-examination, going the officer’s testi- to be. On mony confusing. became somewhat it, Right. way you I took A. That’s know, ...
Q. you going people And two vehicles most that have driven saw they know to slow down through through Boyd the railroad tracks. dip at the railroad there is a because appeared
track. That’s what down, in- ease over the dip slowed
car speed limit and going
stead
bouncing around. say Defen- And safe to
Q. not make that same
dant’s vehicle did stop or hit his brake the same
slow across the railroad
manner? He went
tracks faster? Right.
A.
Q. And went on to shoulder to vehicle? Right.
A. at
I R.R. 13-14. sense leads me to think that
Common
appellant’s decision cross the railroad “necessary”
tracks on the even if anticipa- the slower vehicle and ahead, just the four-lane road was
likely definitely good unsafe and not a But in
idea. there was no testi-
mony that his over the tracks on
the shoulder dis- was unsafe. We cannot
cern from the whether record the officer passing
believed that the shoulder at unsafe, place thought that he it was Lack unlawful. of such testi-
mony is the com- sole reason that I feel join
pelled opinion. the Court’s
MEMORANDUM OPINION DENTON, Appellant,
CITY OF PAPER, Appellee.
Rachel
No. 02-10-00239-CV. Texas,
Court of
Fort Worth.
May
Rehearing Overruled June