Lauderback v. State

• Decision Date: 18 April 1990
• Docket Number: No. 2-88-056-CR,2-88-056-CR
• Citation: 789 S.W.2d 343
• Court: Texas Court of Appeals
• Parties: Edna Louise LAUDERBACK, Appellant, v. The STATE of Texas, Appellee.

Page 343

789 S.W.2d 343

Edna Louise LAUDERBACK, Appellant, v. The STATE of Texas, Appellee.

No. 2-88-056-CR.

Court of Appeals of Texas Fort Worth.

April 18, 1990.

Rehearing Overruled June 5, 1990.

Larson & Trantham and William E. Trantham, Dallas, for appellant.

Michael L. Shepherd, Asst. County Atty., Gainesville, for appellee.

Before WEAVER, C.J., and JOE SPURLOCK, II and MEYERS, JJ.

OPINION

JOE SPURLOCK, II, Justice.

Edna Louise Lauderback, appellant, was convicted by a jury of the offense of obstructing a highway or other passageway. TEX. PENAL CODE ANN. sec. 42.03(a)(2)(A) (Vernon 1989). The court assessed punishment at a 180-day probated sentence and a $550 fine.

We affirm.

After a disagreement with Olney Savings in Gainesville, Texas, appellant began to picket the bank. She picketed the establishment on foot for approximately five weeks without any significant results. Appellant then borrowed a wheelchair from her nephew, attached a sign to the back of it stating "Olney Savings cripples women" and placed the wheelchair out in a lane of traffic on Grand Avenue in front of the bank. The sign extended two to three feet above the handles on the wheelchair, so that the person sitting in the chair was not visible to on-coming traffic.

Grand Avenue is one of the busiest streets in Gainesville. It is narrow and there is no area along the side for parking. Parking is in fact prohibited. Appellant's wheelchair was sitting about three feet from the curb in the lane of traffic and was not traveling. She was facing in the same direction as the traffic. The sign on the back of the wheelchair prevented her from seeing approaching traffic and prevented approaching traffic from seeing her. The police station got a number of calls that appellant was causing an obstruction.

A police officer, Officer Privett, was dispatched to the scene, and upon arrival he saw two cars stopped behind appellant. He had to wait for them to go around her before he could get to the bank. Officer Privett was concerned about the obstruction of the road and the danger to appellant and the drivers on the road. He asked appellant to move three times and she refused each time. Officer Privett then arrested appellant for obstruction of a roadway.

The relevant portion of section 42.03 provides that a person commits an offense if 1) without legal privilege or authority, 2) he intentionally or knowingly disobeys, 3) a reasonable request or order to move, 4) issued by a person the actor knows to be or is informed is a peace officer, or a person with authority to control the use of the premises, 5) to prevent obstruction of a highway or street. See TEX. PENAL CODE ANN. sec. 42.03(a)(2)(A).

Appellant argues in her first point of error that the evidence is insufficient that she was without legal privilege of a handicapped person. Appellant urges in support of this point that public facilities are open to all people including the handicapped on an equal basis. See TEX.HUM.RES.CODE ANN. sec. 121.003 (Vernon 1980). Section 121.002(3) of the Human Resources Code defines "public facilities" to mean streets, highways, sidewalks and walkways. Id. at sec. 121.002. Appellant further cites to TEX.REV.CIV.STAT.ANN. art. 6701d, sec. 81 (Vernon 1977) for the proposition that where sidewalks are not provided, a pedestrian may use the roadway. Appellant reasons that to penalize a handicapped person for doing what a non-handicapped person may lawfully do violates both the letter and spirit of the Human Resources Code, section 121.003(a).

We note that there is conflicting evidence in the record as to whether or not appellant was actually handicapped on the day in question. The only evidence showing that appellant was handicapped was from her own testimony. The State's testimony shows that appellant was not handicapped and the wheelchair was simply used as a metaphor for symbolic protest.

The State contends that even if appellant were handicapped, she still would not have any legal privilege to obstruct the road in this case. Even though appellant relies on article 6701d, section 81 as a proposition that she had a right to be in the street because no sidewalks were provided, a careful reading of that article shows otherwise. That article provides as follows:

(a) Where sidewalks are provided it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.

(b) Where sidewalks are not provided any pedestrian walking along and upon a highway shall when possible walk only on the left side of the roadway or its shoulder facing traffic which may approach from the opposite direction.

TEX.REV.CIV.STAT.ANN. art. 6701d, sec. 81(a) & (b) (Vernon 1977) (emphasis added). The applicable portion of the Texas Penal Code states that "[a] person commits an offense if, without legal privilege or authority, he intentionally, knowingly or recklessly ... obstructs a highway [or] street...." TEX. PENAL CODE ANN. sec. 42.03 (Vernon 1989) (emphasis added). This privilege refers to the right to obstruct a passageway, not to whether a person may use a passageway if they do not create an obstruction. See Id. It has been held that while a person may generally stand on a sidewalk, he may be arrested if doing so creates an obstruction. See Haye v. State, 634 S.W.2d 313, 315 (Tex.Crim.App. [Panel Op.] 1982). A pedestrian or a wheelchair user's right to use a highway is similarly limited by the law regarding obstructions.

The Human Resources Code further states that a handicapped person's right to use a public facility is subject to the "limitations and conditions established by law and applicable alike to all persons." TEX.HUM.RES.CODE ANN. sec. 121.003. Handicapped people do not have more rights and privileges when it comes to creating dangers to themselves and others than do non-handicapped people. See Loving v. Meacham, 278 S.W.2d 466 (Tex.Civ.App.--Amarillo 1955), rev'd on other grounds, 155 Tex. 279, 285 S.W.2d 936 (1956). Appellant in this case was not arrested because she was handicapped, she was arrested because she was obstructing traffic. A non-handicapped pedestrian would have been arrested in the same circumstances.

In reviewing the sufficiency of the evidence to support a conviction, the evidence is viewed in the light most favorable to the verdict. See Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985); Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983) (opinion on reh'g).

The sufficiency of the evidence is a question of law. The issue on appeal is not whether we as a court believe the prosecution's evidence or believe that the defense evidence "outweighs" the State's evidence. See Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App.), cert. denied, 469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984). If there is evidence which establishes guilt beyond a reasonable doubt, and if the trier of fact believes that evidence, we are not in a position to reverse the judgment on sufficiency of the evidence grounds. See id.

After viewing the evidence in the light most favorable to the verdict, we hold that the evidence shows that appellant was without legal privilege of a handicapped person. Even if appellant were handicapped, she would have no legal privilege to be in the highway obstructing traffic because of that handicap. If there were no sidewalks on that side of the street, appellant was required to walk along the highway on the left side of the roadway or its shoulder facing traffic, not on the right side of the shoulder facing the same direction as traffic. Appellant's first point of error is overruled.

Appellant's second point of error urges that the evidence is insufficient that appellant unreasonably rendered passage hazardous or inconvenient or that it was necessary to prevent her conduct. Appellant asserts that unless an overriding public interest is shown, the right of free speech is a paramount right and is protected from control by government regulation. TEX. CONST. art. I, sec. 8. As a result, appellant was entitled to the guarantee of free speech since no overriding public interest was shown by the evidence.

The State responds that the law does not require that appellant actually cause a hazardous or unreasonable inconvenience before an offense has occurred. TEX. PENAL CODE ANN. sec. 42.03 provides that a person commits an offense by disobeying a reasonable request or order to move issued by a person the actor knows to be or is informed is a peace officer to prevent obstruction of a highway. TEX. PENAL CODE ANN. sec. 42.03. The statute further instructs that "obstruct" means to render impassable or to render passage unreasonably inconvenient or hazardous. Id.

The fact that only one person has to go around someone and walk in the mud has been found sufficient to prove that the passage was rendered unreasonably inconvenient and the defendant therefore created an obstruction. See Haye v. State, 634 S.W.2d at 315. In this case, appellant was blocking one lane of traffic on a busy day. Cars had to stop behind her and then wait to move over into the next lane in order to pass her. Appellant's actions clearly fall within the definition of obstruction by rendering passage unreasonably inconvenient or hazardous.

We hold that the evidence viewed in the light most favorable to the State was sufficient to show that appellant created an obstruction by making the passage unreasonably inconvenient and hazardous, and that it was necessary to prevent that conduct. The purpose of this statute is to prevent obstructions in the road, not to inhibit speech. An overriding public interest has indeed been shown; that of protecting people lawfully using...