Hardy v. State

• Decision Date: 22 April 2009
• Docket Number: No. PD-608-08.,PD-608-08.
• Citation: 281 S.W.3d 414
• Parties: Emily HARDY and Hiram K. Myers, Appellants v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

281 S.W.3d 414

Emily HARDY and Hiram K. Myers, Appellants v. The STATE of Texas.

No. PD-608-08.

Court of Criminal Appeals of Texas.

April 22, 2009.

David Broiles, Fort Worth, for Appellant.

John R. Messinger, Assistant Criminal District Atty., Waco, Jeffrey L. Van Horn, State's Atty., Austin, for the State.

OPINION

JOHNSON, J., delivered the opinion of the Court in which PRICE, WOMACK, HOLCOMB, and COCHRAN, JJ., joined.

Cindy Sheehan lost her son, Casey, in the Iraq War in 2004. In August 2005, Ms. Sheehan traveled to Crawford, Texas, in an attempt to meet with President Bush about her son's death. Ms. Sheehan's efforts turned into an anti-war demonstration that extended over an eight-month period.¹ Appellants Emily Hardy and Hiram Myers participated in the demonstration.

As the August demonstration gained momentum, demonstration leaders cooperated with the McLennan County Sheriff's Department to ensure that the demonstrators were not violating any laws or creating hazardous conditions. Because some demonstrators were encroaching on the roadway, Sheriff's Captain Vanek suggested that the demonstrators move to a triangle of land (the triangle) created by the intersection of three roads: Morgan Road on the west, Prairie Chapel Road diagonally on the north and east, and a short (229 feet) unnamed road on the south. This triangle was called Camp Casey I. Appellants and other demonstrators erected small tents in this area. Because of complaints from neighbors, Captain Vanek asked the demonstrators to move from the triangle to the shoulder, and they moved from the triangle to the bar ditches on the west side of Morgan Road and the south side of the unnamed road. They were told by sheriff's deputies that they could be in the bar ditches, but had to stay off of the roads themselves.

The number of demonstrators grew to over 700 and sometimes as many as 2000 on a weekend. A neighboring landowner offered the use of an acre of land, and most of the demonstrators moved to that area, alleviating much of the congestion and traffic.

During August 2005, there were no major incidents involving demonstrators and no arrests for obstructing a roadway. At that time, the Sheriff's Department's policy as to the demonstrators was to allow them to use the bar ditches because they were "public property on which they could express their views." Demonstrators and sheriff's deputies cooperated in keeping the paved areas unobstructed. At the suggestion of deputies, demonstrators parked their cars in Crawford and went to the site by shuttle. Also at the suggestion of deputies, they used roads between the site and Crawford in such a way as to create de facto one-way roads to reduce the frequency of meeting other vehicles. Captain Vanek also testified that the demonstrators cleaned up the area before they left.

After the first demonstration ended at the end of August, and after receiving complaints from nearby residents about the congestion and heavy traffic at Camp Casey I, in September the McLennan County Commissioners Court issued an "order" that prohibited tents (part III) and sewage receptacles (portable toilets)(part IV)² from being placed on the right-of-way of any county road, and defined "right-of-way" as the area between the fences on county roads (part II).³ The order suffered from poor drafting and, because of the poor drafting, provided no penalty for erecting a tent except removal of the tent by county personnel because it was a public nuisance. The order stated that the county would prosecute violators "in accordance with the criminal trespass laws of Texas." In response to the new ordinance, the Sheriff's Office changed its policies as to the demonstrators.

On April 14, 2006, in an effort to challenge the constitutionality of the tent ordinance, appellants erected a tent on the south side of the unnamed road in the area defined in the new ordinance as part of the right-of-way.⁴ Captain Vanek was informed by the demonstrators of their intentions in advance.⁵ Along with 15 other officers, Captain Vanek went to the site. Lieutenant Smith⁶ read to the demonstrators a "Notice."

In order to keep you safe, prevent interference with traffic, and protect the safety of the traveling public, we must insist that you stay off of the road. Furthermore, vehicles must not be parked on the road. You should stay in the bar ditches along the road, and park any vehicles in the ditch area with no part of the vehicle sticking out into the road.

We will give reasonable warnings, however, if you fail to comply with the directives to stay off of the road, or to move a vehicle off of the road, the applicable laws of the State of Texas will be enforced.

The notice continued with the text of TEX. PENAL CODE § 42.03(a) and a statement that violation was a Class B misdemeanor and could also result in the towing of offending vehicles. It concluded with "[w]e ask for your cooperation in maintaining unobstructed and safe passage over the road" and the possibility of criminal trespass if they were on private property. Lieutenant Smith then read to the demonstrators a "warning."

Your erection of a tent or tents in a right-of-way of Prairie Chapel Road and Morgan Road presents public safety concerns and is hazardous. The road and its right-of-way are dedicated to travel. Vehicular traffic passes in both direction along the road. Occasionally, vehicles may stray into the right-of-way due to accident, driver error, mechanical will [sic] problems, road conditions or other cause. It is unsafe for persons to be occupying structures in such proximity to the roadway. Furthermore, such presents a hazard for evasive action, forcing the driver to choose whether to take evasive action to avoid an accident or possibly running over a person who could be occupying the structure erected on the right-of-way.

Therefore, you are ordered to remove the tents out of the right-of-way immediately. Failure to do so may result in your arrest pursuant to 42.03 of the Penal Code.

Please take notice that the property upon which you have erected a tent is the right of way of a McLennan County road. By order dated September 27th, 2005 the McLennan County commissioners court by virtue of its general authority of [sic] a county road prohibited the erection of shelters in the right of way of county roads. The county's right of control over the county's roads gives it a superior right to possession. Your use of the right of way in violation of the county's regulation is a trespass. Therefore, please be warned that you must immediately remove from the right of way the tents which you have erected. If you refuse to do so, you may be arrested for criminal trespass in accordance with sub-section 30.05 of the Penal Code. In addition the public easement upon the property is limited to travel and the incidents thereof. The underline [sic] legal title belongs to the adjoining landowner or owners who have informed the Sheriff's Office that they object to the erection of such items on the property and considers [sic] such to be in access [sic] of the public easement. Therefore, you are further warned to remove from the right of way the tents as such is a trespass upon the property interest of the adjoining landowners. Failure to do so may result in your arrest for criminal trespass.

Appellants went into a tent that had been erected on the grassy area on the south side of the unnamed road and remained there until they were arrested. Both video tapes of the scene show a line of demonstrators seated in folding chairs that were set up approximately five feet from the edge of the pavement and to the west of the tent closest to the pavement. One of the two videos that are part of the record shows that, before the sheriff's deputies arrived, a full-size sedan⁷ was parked directly to the east of the tent closest to the road. It is completely off the pavement and the tent was further off the road than the sedan is wide. All of the chairs were closer to the road than was that tent. A second tent was placed directly to the west of the first tent, next to the line of chairs and slightly behind it. A third tent was erected behind the other two tents and was close to the fence. All three were small "pup" tents in which an average-size adult could sit upright only in the center. Everyone who was in any of the three tents was arrested. Before each arrest, Sgt. Channon approached the tent, explained that tents were prohibited and asked the demonstrator to leave the tent. Sgt. Channon can be heard on the video tape informing the demonstrators that they were being arrested for violating the tent ordinance. He did not at any time approach anyone sitting in a chair. Demonstrators who sat in lawn chairs on the side of the main road, next to the tents and closer to the pavement, were not asked to move, nor were they arrested. It is clear from the testimony and the video tapes that the offense for which appellants were arrested was not being so close to a road as to obstruct it, but for being in a tent set up in the "right-of-way" of a county road, as described in the county ordinance. However, they were later charged with violating TEX. PENAL CODE § 42.03, Obstructing Highway or Other Passageway. The trial court granted appellants' motions for a joint trial, and the cases were tried to a jury.

At trial, Captain Vanek testified that tents were dangerous because people inside could not see what was going on around them and "could not react to something that would happen from the roadway." His testimony indicated that his concern for the hazard created by the demonstrators was based on the speculative and the abnormal: two vehicles too wide to pass each other, sudden mechanical failure, farm equipment traveling at such a speed that pedestrians could not get back from the road quickly enough.⁸ When asked if tents that have no sides would be acceptable, he said that they would not be and agreed that the...