## IN THE COURT O F CRIMINAL APPEALS OF TE XAS

N O . P D
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D O N A L D A D A M S L O T H R O P , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E S E C O N D C O U R T O F A P P E A L S

W I S E C O U N T Y

J O H N S O N , J . , f

i l e d a c o n c u r r i n g o p i n i o n . C O N C U R R I N G O P I N I O N Driving on the shoulder over a railroa d crossing is, in most place s, very u n wi s e. I n rura l

are as, the shoulder

sometimes does not continue ac ross the cr ossing, making for a very roug h ride and difficulty in maintaining control of a vehicle. I f the crossing has been improved by leveling and the installation of metal plates be tween the trac ks, the leveling and plates ma y not ext end as f

ar to the sides as the shoulder does. I f there are crossing signs or g ates, driving on the shoulder puts one in close, perha

ps too close, proxi mity to the supporting posts and protruding parts. All in all, driving

over a railroa d trac k on the should er , i m p ro v ed or not, is g ener ally unsafe

. L ack of safe ty is2

exacer bated by crossing the trac ks on the shoulder without slowing. Boy d is a town of about 1,000 persons that lies t o t h e n o rt h west of For t Worth at the inters ection of state Hig hway 114, a paved undivided highw ay , and Fa rm to Marke t Road 730. During the suppression hea ring , the state c alled the a rre sting off

icer

. Q. [H] ow did y ou come a bout coming into conta ct with Mr. L othrop?
A. I was trave ling east bound on 114 about the 200 bl o ck al s o co n s idere d Rock I sland. I observe d two vehicles approa ching the railroa d trac ks. I observe d one vehicle to slow down to cross t h e ra i l ro ad trac ks. I saw the second vehicle pass on the shoulder at the railroa d trac ks. Both continued g oing westbound. I initiated a traff ic stop on the second vehicle that stopped on the shoulder. Q. L et m e clarify a couple of t hings here. 114 coming into Boy d from the east is a–is it a two lane r oad? A. Right. I t’s a two lane road a t the railroa d trac ks.
I R.R. at 4-5.
On cr oss-examination, the office r’s testimony beca me somewha t confusing

. Q. And y ou saw two ve hicles . . . g oing thr oug h the ra ilroad trac ks. A. Right. Q. All rig ht. A. They wer e side by

side. Q. Okay

. And once the Def endant was on the shoulder, did he actua lly pass the vehicle that was be side him to his–
A. Yes. Q. –left? Okay

Did he g et bac k on to the main portion of the–
A. I f y ou come back up here [t o defe nse ex hi b i t 1 ] , I ’ll show y ou about t he road actua lly splitt ing in front of Rock I sland wher e it g oes to t wo lanes. When they passed, they wer e both in their lanes.3

Q. Did he g o–so the vehicle he passed rema ined on the inside lane and he proce eded over to the outside lane; is that cor rec t?
A. Yes.
I R.R. at 9-10. The office r’s testimony sug g ests that Hig hway 114 is a two-lane road coming into Boy d from the east, but just west of the trac ks, it be comes a four- lane road, with two lanes on eac h side. This is confirmed by

defe nse exhibit 1.
L ater in cross-e x amination, defe nse counsel asked about the office r’s vi ew o f t h e two vehicles. Q. Did y ou tell me that the vehicle that had been in f ront of the Def

endant that that vehicle had slowed? A. Right. I t had slowed sown. Q. Tell me about–tell me about that. Some people, if they ’re very familiar with an are a, roll over the trac k. Other people if they ’re g oing throug h an are a and don’ t know the nature of the ra ilroad trac k don’t know how roug h that’s g oing to be

. A. R i gh t

. T h at ’s the way I took it, y ou know, m ost people that have driven t hroug h Boy d they know to slow down beca use there is a dip at the railroa d trac k. That’s what it appea red that the car slowed down, ease over the dip instead of g oing the speed limit and bouncing around. Q. And safe to say that the Def endant’ s vehicle did not make that same slow stop or hit his brake in the same manne r? He we nt acr oss the railroa d trac ks faster ? A. Right. Q. And we nt on to the shoulder to pass that other ve hicle? A. Right.
I R.R. at 13-14.
Common sense leads me to think that appellant’ s decision to cross the railroa d trac ks on the4

shoulder, even if “nec essar y ” to pass the slower vehicle and in anticipation of the four- lane road just ahea d, was likely unsafe and definitely not a g ood idea. But in this case , there was no testimony that his driving over the trac ks on the shoulder was unsafe

. We cannot discern from the rec ord whether the office r believed that passing on the shoulder a t that place was unsafe , only that he thought that it wa s unlawful. L ack of such testimony is the sole rea son that I fee l compelled to join the Court’s opinion.

Filed: May

9, 2012 Publis h