








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1489-11


DONALD ADAMS LOTHROP, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS

WISE  COUNTY



 Johnson, J., filed a concurring opinion.

C O N C U R R I N G   O P I N I O N


	Driving on the shoulder over a railroad crossing is, in most places, very unwise.  In rural
areas, the shoulder sometimes does not continue across the crossing, making for a very rough ride
and difficulty in maintaining control of a vehicle.  If the crossing has been improved by leveling and
the installation of metal plates between the tracks, the leveling and plates may not extend as far to
the sides as the shoulder does.  If there are crossing signs or gates, driving on the shoulder puts one
in close, perhaps too close, proximity to the supporting posts and protruding parts.  All in all, driving
over a railroad track on the shoulder, improved or not, is generally unsafe.  Lack of safety is
exacerbated by crossing the tracks on the shoulder without slowing.
	Boyd is a town of about 1,000 persons that lies to the northwest of Fort Worth at the
intersection of state Highway 114, a paved undivided highway, and Farm to Market Road 730.
During the suppression hearing, the state called the arresting officer.
	Q.   [H]ow did you come about coming into contact with Mr. Lothrop?
	A. I was traveling east bound on 114 about the 200 block also considered Rock Island.  I
observed two vehicles approaching the railroad tracks.  I observed one vehicle to slow down
to cross the railroad tracks.  I saw the second vehicle pass on the shoulder at the railroad
tracks.  Both continued going westbound.  I initiated a traffic stop on the second vehicle that
stopped on the shoulder.

	Q.  Let me clarify a couple of things here.  114 coming into Boyd from the east is a-is it a
two lane road?

	A. Right.  It's a two lane road at the railroad tracks.

I R.R. at 4-5.

	On cross-examination, the officer's testimony became somewhat confusing.

	Q. And you saw two vehicles . . . going through the railroad tracks.

	A. Right.

	Q. All right.

	A. They were side by side.

	Q. Okay.  And once the Defendant was on the shoulder, did he actually pass the vehicle that
was beside him to his-
 
	A. Yes.

	Q. -left?  Okay Did he get back on to the main portion of the- 

	A.  If you come back up here [to defense exhibit 1], I'll show you about the road actually 			splitting in front of Rock Island where it goes to two lanes.  When they passed, they were
both in their lanes.

	Q. Did he go-so the vehicle he passed remained on the inside lane and he proceeded over to
the outside lane; is that correct?

	A. Yes.

I R.R. at 9-10.

	The officer's testimony suggests that Highway 114 is a two-lane road coming into Boyd from
the east, but just west of the tracks, it becomes a four-lane road, with two lanes on each side.  This
is confirmed by defense exhibit 1.
	Later in cross-examination, defense counsel asked about the officer's view of the two
vehicles.
	Q. Did you tell me that the vehicle that had been in front of the Defendant that that vehicle
had slowed?

	A. Right.  It had slowed sown.

	Q. Tell me about-tell me about that.  Some people, if they're very familiar with an area, roll
over the track.  Other people if they're going through an area and don't know the nature of
the railroad track don't know how rough that's going to be.

	A. Right.  That's the way I took it, you know, most people that have driven through Boyd
they know to slow down because there is a dip at the railroad track.  That's what it appeared
that the car slowed down, ease over the dip instead of going the speed limit and bouncing
around.

	Q. And safe to say that the Defendant's vehicle did not make that same slow stop or hit his 
 	brake in the same manner?  He went across the railroad tracks faster?

	A. Right.

	Q. And went on to the shoulder to pass that other vehicle?

	A. Right.

I R.R. at 13-14.

	Common sense leads me to think that appellant's decision to cross the railroad tracks on the
shoulder, even if "necessary" to pass the slower vehicle and in anticipation of the four-lane road just
ahead, was likely unsafe and definitely not a good idea.  But in this case, there was no testimony that
his driving over the tracks on the shoulder was unsafe.  We cannot discern from the record whether
the officer believed that passing on the shoulder at that place was unsafe, only that he thought that
it was unlawful.  Lack of such testimony is the sole reason that I feel compelled to join the Court's
opinion.


Filed: May 9, 2012
Publish
