                                                                               PD-1248-14
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                           Transmitted 3/12/2015 10:36:51 PM
                                                             Accepted 3/13/2015 10:32:33 AM
                                                                                ABEL ACOSTA
                                                                                        CLERK

                                     PD-1248-14

              COURT OF CRIMINAL APPEALS OF TEXAS




                            ROBERT J. CRIDER, II

                                            V.

                                STATE OF TEXAS




              PETITIONER’S MOTION FOR REHEARING

                     FILED BY ROBERT J. CRIDER, II




                ON APPEAL FROM
THE COUNTY COURT AT LAW NO.5, COLLIN COUNTY, TEXAS
               CASE NO. 005-84506-08.

     THE EIGHTH COURT OF APPEALS AT EL PASO, TEXAS
                 CASE NO. 08-12-00332-CR.


                                                  Robert Jackson Crider, II
                                                    14026 County Road 550
                                                  Farmersville, Texas 75442
           March 13, 2015                                    (972)743-9448
                                                                    No Fax
                                                    RJC5004@hotmail.com
                                                             PETITIONER



Petitioner’s Motion for Rehearing: page 1
                          INDEX OF AUTHORITIES
Case                                                         Page
Busic v. U. S., 446 U.S. 398, 406,
      100 S. Ct. 1747, 1753, 64 L. Ed. 2d 381 (1980)………………..     8

Bynum v. State, 767 S.W.2d 769, 774 (Tex.Cr.App., 1989)…………..            9

Crider v. State, No. PD-1248-14, 2015 WL 925176
      (Tex.Crim.App. Feb. 25, 2015)………………………………….                       5-6

Davis v. State, 61 S.W.3d 94, 99 (Tex.App.-Amarillo, 2001)…………...        9

Engelking v. State, 750 S.W.2d 213, 215 (Tex.Crim.App. 1988)………          8

Ex parte Williams, 786 S.W.2d 781, 783
      (Tex.App.-Hous. [1st Dist.], 1990)……………………………….                    8

Geeslin v. State Farm Lloyds, 255 S.W.3d 786, 794
      (Tex.App.-Austin, 2008)…………………………………………                            7

Getts v. State, 155 S.W.3d 153-158 (Tex.Crim.App., 2005)……………            8

Mahaffey v. State, 316 S.W.3d 633, 635, 639 (Tex.Crim.App. 2010)… 5, 6

Papachristou v. City of Jacksonville, 405 U.S. 156, 162,
     92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972)………………………..                 8

Rewis v. United States, 401 U.S. 808, 812,
     91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971)……………………..                8

Robinson v. State, 377 S.W.3d 712, 722 (Tex.Crim.App. 2012)…..……         5

State v. Johnson, 198 S.W.3d 795, 797 (Tex. App.-San Antonio, 2006)..    9

State v. Johnson, 219 S.W.3d 386, 388 (Tex.Crim.App.2007)………….           9

Thomas v. State, 919 S.W.2d 427, 430 (Tex.Crim.App.1996)…………. 8-9

United States v. Bass, 404 U.S. 336, 347,
      92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971)………………………..                8

Petitioner’s Motion for Rehearing: page 2
Statutes and Rules                              Page
Sec. 545.104(a), Tex.Transp. Code……………………………………     4

Texas Rule of Appellate Procedure 44.2(a)……………………………   9




Petitioner’s Motion for Rehearing: page 3
        IN THE COURT OF CRIMINAL APPEALS OF TEXAS

ROBERT JACKSON CRIDER, II §
                          §
V.                        §                   CASE NO. PD-1248-14
                          §
THE STATE OF TEXAS        §

              PETITIONER’S MOTION FOR REHEARING

       NOW         COMES          ROBERT     JACKSON      CRIDER,         II,

PETITIONER, and moves this court to rehear his Petition for Discretionary

Review. In support, Petitioner shows:

       On rehearing, Petitioner presents the following issues restating and

amplifying Issue 1 C set forth in his Petition:

ISSUE 1.      Should Mr. Crider’s Motion to Suppress have been granted?

              ISSUE1 A. When is a turn signal required at a “Y”
                        intersection?

              ISSUE 1 B. Did the movement of Mr. Crider’s vehicle require
                         a turn signal pursuant to Sec. 545.104(a),
                         Tex.Transp. Code?

              ISSUE 1 C. Is     Sec.   545.104(a), Tex.Transp. Code
                         unconstitutional as applied to Mr. Crider’s
                         situation?

SUBSTANTIAL INTERVENING OR OTHER SIGNIFICANT
CIRCUMSTANCES:
    This Court of Criminal Appeals authored and published two (2)

opinions on this appeal (February 25, 2015), in which Mr. Crider’s Petition

for Discretionary Review was refused, and in which four justices



Petitioner’s Motion for Rehearing: page 4
participated.    There was a dissenting and a concurring opinion.          See

Appendix. However, both opinions share common concern that the statute

at issue is unconstitutionally vague and overbroad as applied to “Y”

intersections.

       Presiding Judge Keller wrote an opinion in which Judge Hervey

joined. That opinion observed that whether a motorist is required to signal

or not is dependent upon whether the “vehicle deviates from the direct

course of the roadway”. Citing Mahaffey v. State, 316 S.W.3d 633, 639

(Tex.Crim.App. 2010). That opinion recognized several questions of law

(Robinson v. State, 377 S.W.3d 712, 722 (Tex.Crim.App. 2012)) that arise

when motorists and police officers are confronted with a “Y” intersection.

The questions need to be answered:

       Do they all “require a turn signal?”

       Must motorists consider “which part of the “Y”” they are
       driving on?

       Are the angles at the “Y” intersection a factor to be considered?

       Does the interruption of the continuous course of the roadway
       by a stop sign “make a difference?”

       If the roadway changes names between the branches being
       traversed, “[d]oes it matter”?

       Justice Newell’s concurring opinion, in which Justice Johnson joined

(Crider v. State, No. PD-1248-14, 2015 WL 925176 (Tex.Crim.App. Feb.

Petitioner’s Motion for Rehearing: page 5
25, 2015)), leaned toward the stop sign interrupting the “direct flow of the

roadway” at the “Y” requiring that Mr. Crider use a turn signal. However, if

a car stops at a stop sign (or red light) where each of the intersecting streets

is at a 90o angle, there is no requirement that a motorist signal to go straight.

Indeed, cars are not equipped with a “straight signal.” Driving straight is the

default option.

       In the concurring opinion, Justices Newell and Johnson observed that

this Court has established the “common meaning” of the word “turn” as used

in Section 545.104(a), Tex.Transp. Code: “…‘turn’ means to change

directions-to turn the vehicle from a direct course of the roadway. You

either turn left, or you turn right out of the direct course or flow of normal

traffic.” Mahaffey, supra at 635. The concurring opinion acknowledges that

the above questions are “very good”, and “hope[s] the legislature answers

them.”    Because the legislature has not answered them yet, this Court

should. At this juncture, the legislature has no impetus to answer these

questions by clarifying the statute. Here, the concurring and dissenting

opinions find common ground: “I share the desire to provide more guidance

to both police and motorists…” Concurring Opinion at 3.

       Mr. Crider was stopped for allegedly failing to signal a turn at a “Y”

intersection. As assumed, the traffic stop was initiated by a police officer,



Petitioner’s Motion for Rehearing: page 6
who in this case is actually a sergeant (police supervisor). Unusually, the

motorist in this case was also a police sergeant. They were both licensed

Texas Peace Officers, sworn to uphold the laws of Texas. Like this Court,

the disagreement between police supervisors indicates the need for these

issues to be clarified so that common motorists who are not as informed can

know what conduct the criminal statute prohibits.

       In this case, the intersection at issue has three (3) roadways that

converge at a corporate municipality’s boundary, each with different names.

The Southbound traffic traveling the same two roadways has no stop sign

and is considered a continuous course of the road so that no signal is

required. The only difference is that the Northbound traffic on those same

two roadways which Petitioner was traveling has a stop sign.          (State’s

exhibit 6, at RR V4). A view of the roadway in question clearly shows Mr.

Crider’s movement followed what amounted to little more than a slight

curve. (CR 50).

BRIEF IN SUPPORT OF MOTION
    An as-applied challenge to constitutionality requires a showing that

“the statute is unconstitutional when applied to that particular person or set

of facts.” Geeslin v. State Farm Lloyds, 255 S.W.3d 786, 794 (Tex.App.-

Austin, 2008).




Petitioner’s Motion for Rehearing: page 7
       A person of ordinary intelligence must have fair notice that conduct

contemplated is forbidden by the statute, and the statute may not encourage

arbitrary and erratic arrests and convictions. See Engelking v. State, 750

S.W.2d 213, 215 (Tex.Crim.App. 1988); citing Papachristou v. City of

Jacksonville, 405 U.S. 156, 162,92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972).

A statute must set "a standard sufficiently clear and definite so that an

ordinary person knows what constitutes proscribed conduct." Ex parte

Williams, 786 S.W.2d 781, 783 (Tex.App.-Hous. [1st Dist.], 1990).

       If the Legislature “enacted into law something different from what it

intended, it should amend the statute…”. Getts v. State, 155 S.W.3d 153-158

(Tex.Crim.App., 2005).

       “ ‘[A]mbiguity concerning the ambit of criminal statutes should be

resolved in favor of lenity.’ ” Busic v. U. S., 446 U.S. 398, 406, 100 S. Ct.

1747, 1753, 64 L. Ed. 2d 381 (1980) (superceded on other grounds by

statute); citing United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522,

30 L.Ed.2d 488 (1971), quoting Rewis v. United States, 401 U.S. 808, 812,

91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971). This Court has said that

another way. “Any doubt as to whether an offense has been committed

should be resolved in favor of the accused.” Thomas v. State, 919 S.W.2d




Petitioner’s Motion for Rehearing: page 8
427, 430 (Tex.Crim.App.1996); State v. Johnson, 198 S.W.3d 795, 797

(Tex. App.-San Antonio, 2006).

       "[W]hen challenging the constitutionality of a statute, it is incumbent

upon a defendant to show that in its operation the statute is unconstitutional

to him in his situation." Bynum v. State, 767 S.W.2d 769, 774 (Tex.Cr.App.,

1989) "[C]riminal statutes outside the penal code must be construed strictly,

with any doubt resolved in favor of the accused." State v. Johnson, 219

S.W.3d 386, 388 (Tex.Crim.App.2007)

HARM
   Petitioner has shown harm by the errors complained of. “[T]he fruits

of the illegal search were admitted into evidence at trial and constituted the

basis of the Petitioner’s conviction. If the trial court had suppressed the

evidence, as it should have, there would have been no basis upon which the

State could have prosecuted the Petitioner. Consequently, this Court cannot

but hold that the trial court's error was harmful under Texas Rule of

Appellate Procedure 44.2(a).” Davis v. State, 61 S.W.3d 94, 99 (Tex.App.-

Amarillo, 2001).




Petitioner’s Motion for Rehearing: page 9
                        CONCLUSION AND PRAYER

       WHEREFORE, Petitioner requests that this Court of Criminal

Appeals grant his Petition and afterwards reverse and render judgment or

remand to the trial court for further proceedings consistent with this Court’s

opinion.

DATED: March 12, 2015
Respectfully submitted,


/s/ Robert Jackson Crider, II
Robert Jackson Crider, II
4026 County Road 550
Farmersville, Texas 75442
(972)743-9448
No Fax
RJC5004@hotmail.com
PETITIONER

                    RULE 79.2(c) CERTIFICATE
       This motion for rehearing the order that refused the petition for

discretionary review is grounded only on substantial intervening

circumstances or on other significant circumstances which are specified in

the motion. This motion is so grounded, is made in good faith and not for

purposes of delay.

                                             /s/ Robert Jackson Crider, II
                                             Robert Jackson Crider, II




Petitioner’s Motion for Rehearing: page 10
                      CERTIFICATE OF SERVICE
       A true and correct copy of the foregoing and attached documents were

electronically served to the following recipients, if that option was available

through the electronic filing manager, and if not, it was mailed to Appellee’s

counsel on Thursday, March 12, 2015:

                                    Greg Willis,
                                    Criminal District Attorney
                                    Collin County, Texas
                                    John Rolater
                                    Andrea L. Westerfeld
                                    Appellate Section
                                    Collin County District Attorney's Office
                                    2100 Bloomdale Rd., Suite 100
                                    McKinney, Texas 75071

and in accordance with Rules 68.11 and 79.7, Tex.R.App.P., in the same

manner it was provided to:

                                    Lisa C. McMinn
                                    State Prosecuting Attorney
                                    P. O. Box 13046
                                    Austin, Texas 78711-3046
                                    Telephone: (512) 463-1660
                                    Fax: (512) 463-5724
                                    information@spa.texas.gov


and 10 paper copies will be delivered to the Clerk of this Court of Criminal

Appeals within three (3) business days as required by the Rules.



                                             /s/ Robert Jackson Crider, II
                                             Robert Jackson Crider, II

Petitioner’s Motion for Rehearing: page 11
                                APPENDIX
1.     Dissenting Opinion of this Court …………….……………..Pass Im

2.     Concurring Opinion of this Court …………………………..Pass Im




Petitioner’s Motion for Rehearing: page 12
                     PD-1248-14

       COURT OF CRIMINAL APPEALS OF TEXAS




                ROBERT J. CRIDER, II

                         V.

                  STATE OF TEXAS




                       TAB 1

            FILED BY ROBERT J. CRIDER, II




                ON APPEAL FROM
THE COUNTY COURT AT LAW NO.5, COLLIN COUNTY, TEXAS
               CASE NO. 005-84506-08.

  THE EIGHTH COURT OF APPEALS AT EL PASO, TEXAS
              CASE NO. 08-12-00332-CR.


                                       Robert Jackson Crider, II
                                         14026 County Road 550
                                       Farmersville, Texas 75442
                                                  (972)743-9448
                                                         No Fax
                                         RJC5004@hotmail.com
                                                  PETITIONER
           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS

                                       NO. PD-1248-14



                       ROBERT JACKSON CRIDER, II, Appellant

                                                v.

                                  THE STATE OF TEXAS

                     DISSENT TO REFUSAL TO GRANT
            APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE EIGHTH COURT OF APPEALS
                            COLLIN COUNTY

                K ELLER, P.J., filed a dissenting opinion in which H ERVEY, J., joined.


       This case involves a traffic stop for failure to signal a turn at a “Y” intersection. The two

branches of the “Y” are Vinson Road and County Line Road; the base of the “Y” is FM544.

Appellant, traveling on Vinson, failed to signal a turn when he reached and continued onto FM544.

       We have held that a turn signal is required only when a vehicle deviates from the direct

course of the roadway.1 Under this definition, at the place where Vinson meets FM544, a driver



       1
           Mahaffey v. State, 316 S.W.3d 633, 639 (Tex. Crim. App. 2010).
                                                                          CRIDER DISSENT — 2

coming from either direction would seem to be following the normal course of the roadway, while

one traveling from Vinson to County Line would appear to be deviating from the direct course of

the roadway, i.e., turning. Faced with little guidance from this Court, the court of appeals held that

appellant executed a turn when he continued onto the base of the “Y” intersection because “the direct

flow of traffic terminated” at the intersection.2

       There are a number of issues that might—or might not—bear on the answer to whether a turn

signal is required at a “Y” intersection. Do all “Y” intersections require a turn signal? Does it

matter which part of the “Y” intersection the driver is traveling from? Do the angles of the “Y”

intersection matter? In this case, Appellant had a stop sign. Does the presence of one or more stop

signs make a difference? Does it matter whether the name of one branch of the “Y” and the base are

the same? These are questions of law,3 but there are no definitive answers to any of these questions.

I would grant review to answer these questions, so that motorists and police officers will know what

the law requires. Because the Court does not, I respectfully dissent.

Filed: February 25, 2015
Publish




       2
         Crider v. State, No. 08-12-00332-CR, slip op. at 6 (Tex. App.–El Paso June 30, 2014) (not
designated for publication).
       3
          Robinson v. State, 377 S.W.3d 712, 722 (Tex. Crim. App. 2012) (“The only disagreement
in this case was not about the character of the roadway, but about the legal significance of the
character of the roadway. The question whether the appellant was required to use his turn signal was
therefore a question of law.”).
                     PD-1248-14

       COURT OF CRIMINAL APPEALS OF TEXAS




                ROBERT J. CRIDER, II

                         V.

                  STATE OF TEXAS




                       TAB 2

            FILED BY ROBERT J. CRIDER, II




                ON APPEAL FROM
THE COUNTY COURT AT LAW NO.5, COLLIN COUNTY, TEXAS
               CASE NO. 005-84506-08.

  THE EIGHTH COURT OF APPEALS AT EL PASO, TEXAS
              CASE NO. 08-12-00332-CR.


                                       Robert Jackson Crider, II
                                         14026 County Road 550
                                       Farmersville, Texas 75442
                                                  (972)743-9448
                                                         No Fax
                                         RJC5004@hotmail.com
                                                  PETITIONER
        IN THE COURT OF CRIMINAL APPEALS
                    OF TEXAS

                                     NO. PD-1248-14



                     ROBERT JACKSON CRIDER, II, Appellant

                                              v.

                                  THE STATE OF TEXAS

               CONCURRING WITH REFUSAL TO GRANT
          APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE EIGHTH COURT OF APPEALS
                          COLLIN COUNTY

              N EWELL, J., filed a concurring opinion in which J OHNSON, J., joined.

       I agree with this Court’s decision not to grant discretionary review of the unpublished

opinion in this case. I write separately because I believe the court of appeals properly

answered the question before it and because I do not believe this is the case to determine

whether a particular type of roadway requires a “turn” or a “merge” or when a signal is

required at a “Y” intersection.

       The court of appeals described the “Y” intersection at issue in this case as follows:

              The record here indicates that the direct flow of traffic on
                                                             Crider Concurring Opinion - Page 2

              Vinson Road appears to terminate at the stop sign, when the
              road essentially splits into FM 544 and County Line Road.
              Although the right turn from Vinson Road onto County Line
              Road is at a steeper angle than the turn from the same road onto
              FM 544, all three roads are “equally travelled roads,” and
              because a ditch lies opposite the stop sign, a driver on Vinson
              Road stopped at the intersection stop sign must clearly make a
              choice: turn left or turn right.

Crider v. State, No. 08-12-00332, 2014 WL 2993792, at *3 (Tex. App.–El Paso June 30,

2014) (not designated for publication). According to the court of appeals, there was no more

direct flow of the roadway at the intersection because there was a stop sign that forced the

driver to choose a path. Id.

       This is unlike the road in Mahaffey where a road with two southbound lanes dropped

down to one southbound lane. Mahaffey v. State, 316 S.W.3d 633, 635 (Tex. Crim. App.

2010). And it’s unlike the road at issue in Robinson where there were no traffic signs

indicating an intersection that required a signal. Robinson v. State, 377 S.W.3d 712, 715-16

(Tex. Crim. App. 2012).1 I see no reason under the facts of this case to disturb either the trial

court’s application of law to the facts or the court of appeals’ evaluation of that application.

       For better or worse, we have held that the word “turn” in Section 545.104(a) of the

Transportation Code–the statute at issue in this case–is unambiguous, and we have set out

its common meaning. Mahaffey, 316 S.W.3d at 635. According to this Court:


       1
        Notably, this Court did not need to decide in Robinson whether a turn signal was
required because the only issue was whether an article 38.23 instruction was warranted.
Robinson, 377 S.W.3d at 718. And we left undisturbed the lower court’s determination that a
signal was required. Robinson v. State, No. 06-09-00225-CR, 2011 WL 192752, at *5 (Tex.
App.–Texarkana Jan. 13, 2011) (not designated for publication).
                                                               Crider Concurring Opinion - Page 3

               The word ‘turn’ is not a legal term of art–it has no ‘acquired
                technical meaning.’ ‘Turn’ has many dictionary meanings, but
               in the context of driving, ‘turn’ means to change directions–to
               turn the vehicle from a direct course of the roadway. You either
               turn left, or you turn right out of the direct course or flow of
               normal traffic.

Id. Given our recent foray into defining the word “safe,” I think this definition provides

about as much guidance as could be expected regarding the word “turn.” See Butcher v.

State, ___ S.W.3d ___, 2015 WL 359087, at *5 (Tex. Crim. App. Jan. 28, 2015) (setting out

test to determine where location is “safe” for the voluntary release mitigation special issue

in § 20.04 of the Texas Penal Code). And drilling down to find ambiguity in the words used

to define an unambiguous word in a statute–words such as “direct,” “course,” and

“flow”–invites more confusion than clarity.

       As a newly minted Austin motorist, I appreciate the dissent’s intellectual desire to

game out every possible traffic scenario attendant to navigating a “Y” intersection. But if

that’s required in every motion to suppress based upon a traffic stop, I can’t wait to get to

roundabouts.2 The dissent asks some very good, thought-provoking questions about this

traffic offense, and I hope the legislature answers them. I share the desire to provide more

guidance to both police and motorists, but we’re not Google maps. I believe Mahaffey and

the statute provided the trial court and the court of appeals with sufficient guidance to resolve

and review appellant’s motion to suppress. I don’t believe that this case is a suitable vehicle


       2
         TEX . TRANSP . CODE ANN . §545.059(c) (West 2013) (“An operator moving around a
rotary traffic island shall drive only to the right of the island.”); see also NATIONAL LAMPOON ’S
EUROPEAN VACATION (Warner Bros. 1985) (“Big Ben, Parliament”).
                                                          Crider Concurring Opinion - Page 4

to revisit Mahaffey, and that is why I believe discretionary review is unnecessary.

Filed: February 25, 2015
Publish
