Appellants Reply Brief — Sitton v. Texas

RECEIVED

JAN22 1981 +

NO. 80 - 5904 ; OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980 gre }

Ww 5 eT +o ~~ | | u

JOHN R. SITTON

Appellant-Fetiticner

vs

THE STATE OF TEXAS

Appellee-Respondent

- mail a 7

C_RepLy TO MOTION TO DISMiss

OR AFFIRM

ATTORNEY FOR APPELLANT-PETITIONER

J. P. Darrouzet

Counsellor at Lew

Suite No. G-10

812 San Antonio

Austin TX 78701

512 477? 4210

05396000

NO. 80 - 5904

IN THE SUPREME COURT OF THE UNITED STATES

JOHN R. SITTON Appellant-Petitioner

vs

THE STATE OF TEXAS Appellee-Respondent

REPLY TO MOTION TO DISMISS OR AFFIRM

TO THE HONORABLE COURT:

INTRODUCTION

SITTON in his STATEMENT OF JURISDICTION AND/OR PETITION FOR WRIT

OF CERTIORARI raised four problems for this Court's consideration:

K(1) The Texas law requires a culpable state of

mind for the offense of speeding; yet the

Trial Court (Court of last resort in this case)

held that none was needed.

K(2) The Texas speeding law is unconstitutionally vague.

K(3) The Texas speeding law is unconstitutional because

conviction under it rests upon a burden-shifting

presumption.

K(4) The Texas speeding law violates substantive

due process because it is legislation in an area without

standards; and the Legislature cannot do this in the way

in which it did.

Although the substance of the answer filed herein by the Travis County

Attorney in her MOTION TO DISMISS OR AFFIRM is somewhat uncertain, she,

at least, spoke to each problem above (under her ARGUMENT, p.2) using

arabic numbers. This REPLY will be in kind - so that the problems

as presented, as answered and as rebutted will be:

1N THE STATEMENT IN THE MOTION TO IN THIS REPLY

and/or PETITION DISMISS OR AFFIRM

K(1) a. I(Mens Rea)

K(2) 2. II (Vagueness)

K(3) 3. III (Presumption) .

K(4¢) 4. Iv(Substantive Due Process)

z (MENS REA)

The Travis County Attorney missed the point of SITTON'S first

problem. She simply says that crimes can exist that require no mens

rea. With this SITTON has no quarrel. She further says that such is

the case with speeding, and with this - in general ~ SITTON again has

no guarrel. But she finally concludes that such is the cese in Texas,

and with this SITTON quarrels vigorously and says:

A.

a. In 1973 (to take effect 1/1/74) the Legislature of Texas

adopted a new penal code (unless otherwise noted, this shall

be referred to as PC).

b. In the PD, nothing constituted

“... an offense unless it is defined as an

offense by statute, municipal ordinance, order

of a county commissioners court, or rule authoriz-

ed by and lawfully adopted under a statute.”

Sec. 1.03(a) PC.

c. Titles 1, 2 and 3 of the PC (consisting of Sec. 1.01

through Sec. 12.51 inclusive) applied not only to "crimes"

or "offenses" set out in the PC but ,

"... to offenses defined by other laws,...”

Sec. 1.03(b) PC.

(Accordingly Titles 1, 2 and 3 PC

apply to Art. 670ld Texas Civil Statutes

[herein TCS] which contains Sec. 166, other-

wise the Texas speeding law.)

d. Furthermore the PC defined the elements of any

offense as:

"(A) the forbidden conduct;

(B) the reguired culpability;

(c) any reguired result; and

(D) the negation of any exception

to the offense." Sec. 1.07(a) (13) PC.

e. Further, and most important(!), the PC provided

that

“... @ person does not commit an offense unless

he intentionally, knowingly, recklessly, or with

criminal negligence engages in conduct as the

definition of the offense requires.” Sec. 6.01(b) PC.

f. The only thing excepted from this requirement of “culpability”

or “mens rea", was, where the statute (defining the crime)

"plainly" dispenses with such a requirement:

"If the definition of an offense does not prescribe

a culpable mental state, a culpable mental state is

nevertheless required unless the definition plainly

dispenses with any mental element." Sec. 6.02(b) PC.

(All underlining or emphasis is by the

writer unless otherwise specifically noted.)

g. And further:

"If the definition of an offense does not

prescribe a culpable mental state, but one

is nevertheless required under Subsection (b)

of this section, intent, knowledge, or recklessness

suffices to establish criminal responsibility.” Sec.

6.02(c) PC.

(Simple negligence accordingly will not

suffice to impose criminal responsibility

COLE v STATE 556 SW[2] 343.)

h. Hence the law of Texas underwent a change.

"..+»« the Court in prior cases held that such

knowledge need not be alleged in the indictment,

but if lack of knowledge were raised by the evidence,

the jury must be cahrged to axquit if there were a

reasonable doubt on the matter... . ... Under

the new penal code, in constrast, the culpable

mental state is expressly made, not a defense,

but an element of the offense, V. T. C. A., Penal

Code Sec. 1.07(a)(13)(3), and this is so even where the

culpable mental state is not expressly stated in

the statutory definition of the offense. Sec. 6.02

(b),..." GOSS v STATE 58? SW(2) 782.

i. Nowhere in Art. 670ld, Sec. 165 TCS does the Legislature

“plainly” dispense with the requiremert of culpability

(See the quotation of the speeding law in

the Travis County Attorney's MOTION TO DISMISS

OR AFFIRM beginning on p. 1. It is difficult

to prove a negative; BUT A READING OF THE

ENTIRETY of Art. 670ld TCS [ovherwise

known as the traffic code of Teryas} will

reflect that nowhere does the Jegislature

“plainly” dispense with the requirement of

culpability for the violation of any section

of that code.)

In very early days this Court considered the question of whether

the (any) Legislature could eliminate the requirement of “mens rea”

from an act for which criminal responsibility ensued. Two of the earliest

and most cited cases are US’ v BALINT 258 US; 66 LE 604; 42 SC 301, and

US v BEHRMAN 258 US 280; 66 LE 619; 42 SC 303.

"In those cases this Court did not construe mere

omission from a criminal enactment of any mention

of criminal intent as dispensing with it.”

MORISETTE, infra.

BALINT mde the question of dispensing with mens rea ”...a question

of legislative intent to be construed by the court...”

The next case of import to appear in this area was US v

DOTTERWEICH 320 US 277; 88 LE 48; 64 SC 134:

"The prosecution to which Dotterweich was subjected

is based on a now familiar type of legislation whereby

penalties serve as effective means of regulation. Such

iegislation dispenses with the conventional recuirement

for criminal conduct ~ awareness of some wrong doing.

In the interest of the larger good it puts the burden

of acting at hazard upon a person otherwise innocent

but standing in responsible relation to a public danger."

citing BALINT.

In 1951 this Court decided that a comprehensive discussion of

the matter was needed so it chose MORISETTE v US 342 US 246; 96 LE 288; 72

SC 240 to do it. The offesne was a violation of 18 USC 641 (purloining

government property). Morisette had taken three tons of bomb casings from

a bombing range and sold them. No (culpability) mens rea was élleged nor

proven.

The Court went into the history of the requirement of mens rea

and pointed out the "accelerating tendency"..."to call into

existence new duties and crimes which disregard any ingredient of

intent...". Among other types of crimes discussed as a resultent

of the "industrial revolution" was that relating to "(T)raffic of

velocities, volumns and varieties unheard of, came to subject the way-

farer to intolerable casualty risks if owners and drivers were not to

observe new cares and uniformities of conduct."

BUT THERE IS ONE THING THA MORISETTE MAKES CLEAR. IT IS

TALKING ABOUT LEGISLATION, NOT COURT CONSTRUCTION - NOT

COURT LEGISLATION.

Hence says the Court “legislation applicable to such offenses, as a

matter of policy, does not Specifv intent as a necessery element.”

The Court as noted above, says that in BALINT congressional

intent was ofund to eliminate the requirement of mens rea. And in MORISETTE

this Court found legislative intent to do the same. The most that can

be said of MORISETTE on this matter is its quotation from BEHRMAN:

"If the offense be a statutory one, and intent or

knowledge is not made an element of it, the indictment

need not charge such knowledge or intnet."

(Even assuming that this statement is so, it is

not applicable in Texas for as shown above the

Texas Legislature maked culpability a re uirement

unless the same is plainly dispensed with in the legisia-

tive definintion of the offense, which it is not in

speeding.)

In 1957 LAMBERT v CALIFORNIA 355 US 225; 2 LE(2) 228; 78 SC 240

|

appearedand this Court said:

"There is a wide latitude in the lawmakers

to declare an offense and to exclude elements

of knowledge and diligence from its definition.”

And fourteen years later in US v FREED 401 US 601; 28 LE(2) 356;

91 SC 1112 this Court in considering an offense under the National Fire-

arms Act held that Congress had eliminated the requirement of mens rea

for criminal responsibility and to do so it quoted BALINT:

"Congress weighed the possible injustice of subjecting

an innocent seller to a penalty against the evil of

exposing innocent purchasers to danger from the drug,

and concluded that the latter was the result preferably

to be avoided."

C.

This is the basis for the following propositions:

The Legislature can create a species of crime where

culpability is eliminated as a required "element" of

the offense.

A_court cannot take legislation which does not plainly

dispense with the leement of culpability and

judicially legislate such a dispensation.

BUT IN TEXAS

THE LEGISLATURE SAYS THAT EITHER IT OR ITS DELEGEES ARE

THE MAKERS OF "CRIME" OR "OFFENSES":

FURTHER THE LEGISLATURE SAYS THAT CULPABILITY IS A MANDATORY

REQUIREMENT FOR CRIME, AND EVEN IF THE DEFINITION OF AN

OFFENSE HAS NO REQUIREMENT OF C"'LPABILIYT ONE IS NEVERTHELESS

REQUIRED AS AN ELEMENT OF THE OFFENSE UNLESS IT IS PLAINLY

DISPENSED WITH.

FURTHER UNDER THE SPEEDING LAW OF TEXAS CULPABILITY HAS

NOT BEEN PLAINLY DISPENSED WITH.

Accordingly under the teachings of this Court the conviction here

must fail because no culpability was require at trial, and hence SITTON

was denied his Constitutional rights.

This Court - nor any court for that matter - cennot LEGISLATE

(except "interstitially”" to resolve ambiguities, SAXBE v BUSTOS 418

US 65; 42 LE[2] 231; 95 SC 272).

This proposition is so well established as to stand on its

own; however if authority is necessary one can begin in 1885 with THORNLEY

v US 113 US 310; 28 LE 999; 5 SC 491 and travel through LOUISVILLE &

NRCo v CENTRAL STOCK YARDS 212 US 132; 53 LE 441; 29 SC 246 and DEWEY

v US 178 US 510; 44 LE 1170; 20 SC 981 to a condemation of statutory

improvement as a motive for construing statutes other than whet they

say US v CALAMARO 345 US 351; 1 LE(2) 1394; 77 SC 1138 to the condem-

nation of statutory construction of social policy motivated by

personal inclinations EVANS v ABNEY 396 US 435; 24 LE(2) 634; 90 SC

628.

(Little research would be needed to verify the fact

that courts do not have the constitutional power to

legislate even under the guise of "construction" or

“interpretation”. Cf. the Digest System under Const.

Law, Key 70.)

In Texas from the earliest days the same law obtained. Cr.

8A Tex. Dig. Const. Law Key 70(1) et seg. As recent as Ex Parte DAVIS

412 SW(2) 46 the Court of Criminal Appeals of Texas (its highest court

in criminal matters herein referred to CCrA) held that the fixing of

penalties was a Legislative Matter and not for the courts, and in SLAGLE

v STATE 570 SW(2) 916 the CCrA echoing its long historuv said that the

appropriateness of >» presumption of intoxication was a Legislative Decision,

the construction of which "... is foreclosed by the Legislature's

judgment...” as reflected by the act creating the presumption. In short

where the Legislature has plainly spoken , it makes no cifference if such

pronouncements may be (or need to be) improved, nor if they

can be made better societally, nor if the personal inclination of a

judge wants them to be otherwise, nor for any other reason may a court

change what the Legislature has said.

(The inevitable line between Constitutional permissibility

and impermissibility begins to emerge from the cloud

that lies between true Judicial "construction" - or

“interstitial” legislation for clarification of

ambiguities [a form of "construction], see SAXBE, supra -

and true Judicial "Legislation". FOR if one is into

construction one is in the area of constitutionally delegated

judicial functions; whereas if one crosses the line one

violates the constitutional mandate of division of powers.

A Court canno Constitutionally Legislate.)

ACCORDINGLY, here, the problem is manifest. The Texas Legislature

has spoken. Speeding requires a culpable state of mind unless the Legislatu e

“plainly” dispenses with such a requirement which it hes not done. By

the lower court eliminating such a requirement it denied SITTON due

process of law.

One more thing need to be discussed here and this is ZULAUF

v STATE 591 SW(2) 869.

ZULAUF was convicted of speeding, fined and appealed his case

to the CCrA. His second point of error wsa that the complaint (which

is the operable paper in a speeding offense in Texas, Art. ¢5.0l Texas

Code of Criminal Procedure, herein TCCrP) was fundamentally defective

for failure to allege a culpable state of mind. The CCrA disagreed and

in doing so gave its reasons, as it must do by Statutory Mandate, Art.

44.24 TCCrP as follows:

2. "The clear command of Article 670ld, Sec. 166, supra,

that:

"...(nJoperson shall drive a vehicle on

a highway at a speed greater than is

reasonable and prudent under the circumstances

then existing...'

provides more than adeuate support for our holding

herein that the Legislature intended to make

speeding a strict liability offense where liability

would not be contingent upon the allegation of a

culpable mental state.”

(the emphasis on the words shown above

was put on them by the CCrA)

(See below).

2. The CCrA relied on GOODWIN v STATE 138 SW 399 and quoteu

from that opinion as follows:

"Very few people in driving a car have an evil

intent; but the Legislature, in protection of the

public, has decreed it wise to limit the speed at

which these cars may run, and each one is required

to keep within that limit."

(GOODWIN was a 1911 case at which time Texas

had a rigid speed limit, i.e. no car may

travel faster than X miles per hour; and

it was decided at a time when "no culpability"

was a defense, not an element of an offense which

had to be proven by the prosecution, supra.)

3. Then the CCrA referred to VALLEJO v STATE 408 SW(2) 113; WILSON

v STATE 328 SW(2) 311 and ROWLAND v STATE 311 SW(2) 831 for the

proposition that similar complaints had been held sufficient

"... notwithstanding the lack of a culpable

mental state..."

(None of those cases raised the issue of

invalidity due to lack of a culpable mental

state.)

4. Then the CCrA says that it has repeatedly held that no

culpable state was requried for intoxicated driving and

cites GREER v STATE 544 SS(2) 125; Ex Parte ROSS 522 SW(2)

214 and OWEN v STATE 525 SW(2) 164.

(DWI really has nothing to do with speeding.

Furthermore in Chapter Eight and Chapter

Nineteen of the PC the Legislature deliberately

and very "plainly" dispensed with a mental

state in any crime involving intoxicants, see

infra.)

5. Finally the CCraA says:

"Given the absOlutely obligatory character of the

language consistently used by the Letislature in denounc-

ing the offense of speeding, we are satisfied that the

Legislature intended to and has dispensed with a

culpable mental state as an element of the offense."

First of all the CCrA is clearly Legislating here in violation

of the Constitution of the State of Texas and the Constitution of the

United States . The Judiciary cannot Legislate. Yet the CCrA has

done so here. How? By saying that since the Legislature used the word

"shall" it expressed an intent to eliminate or dispense

with a mens rea or a mental state in the crime or offense of

speeding.

The absolute irrationality of this is shown in GOSS v STATE

582 SW(2) 782 and ROGERS v STATE 589 SW(2) 132 where a mental state

or mens rea or culpable state of mind was found to be necessary for

violation of Art. 670ld, Secs. 38 adn 40 TCS (failure to stop and

render .aid). Those sections of the same Art. 670ld TCS (wherein is

legislated the speeding law) say that a driver "shall" stop;

"shall" return} "shall" reaimn at the scene; "shall" do so

without obstructing traffic; "shall" give his name; "shall" if requested

exhibit his license; and "shall" render reasonable assistance. In short,

where "shall" is used six (6) times the CCrA found no express or

plain @ispensation of culpability; yet where "shall" was used

once (1) it was a "clear command", it was "more than adequate support",

and it was of an "absolutely obligatory character” to show legislative

intent to expressly and/or "plainly" dispense with the

requirement of culpability.

The terrible irony of this is that in BROWN v STATE 600 SwW(2)

834 the very same Judge who wrote the tuilty words of ZULAUF vigorously

reaffirmed the holding of GOSS and ROGERS that Art. 670ld, Secs. 38 and

40 TCS require a culpable state of mind (where the statute used the

word "shall" six times):

(And in another posture the same Judge wrote words like

"Given the heavy emphasis in the penal code

on existence of one or another culpable mental

state as an element of a penal offense..."

and

"Instead of adapting an outmoded rationale we

should insist that a felony murder indictment state

outright the appropriate culpable mental state in

relation to commission of the acts that cause death."

and dissented becasue the CCraA refused to reguire a culpable

State of mind be alleged in an "attempt" type crime. Ex

Parte BAILEY 600 SW[2] 333.)

In MORISETTE, as quoted above, this Court noted that BALINT and

BEHRMAN had not used the absence of a required intent in the statute

to find legislative intent to eliminate it as an essential element of

a crime.

(Nor did MORISETTE ~- nor any other case - ever

hold that if the legislature did in fact eliminat it, that

couldn't be used as a defense, i. e. that the lack of intent

due to accident, mistake of fact, insanity, etc., couldn't be

8.

used as a defense, Yet the CCrA did, for in HERNANDEZ

v STATE an unpublished per curiam opinion the CCra held that

mistake of fact couldn't be used as a defense to Speeding.

. HERNANDEZ appears (by reference only) in 579 SW(2) 478, but

its opinion reflecting the CCrA's "reasons" for its judgment

was not published under the local rules. A copy of the opinion

is attached, and since the CCra is required by At. 44.24 TccrP

to give their "reasons" = such Opinion becomes a part of

that vast body of law called stare decisis and may be used -

especially to show what the highest court of any state hes

done. The absolute inanity of the CCrA's position in this matter

is made manifest. If a criminal coerced one into speeding at

gun point, the driver is guilty of Speeding; if an accident

occurred such as braking on a hill and Sliding to 40 mph ina

a 30 mph prima facie zone, then one is guilty; the list is

endless and each as irrational as the next. Even though

voluntariness is a statutory mandate for the commission of

and "offense", Sec. 6.0l[a) PC , it isn't for speeding accord-

ing to the CCra. Every Statutory defense (Chapter Eight PC)

is now totally denied to a defendant charged with speeding

- and all because the CCrA decided on its own that the word

"shall" evidenced a Legislative Intent to eliminate or "plainly"

dispense with the requirement of culpability in the offense

of speeding.)

The bottom line here is that SITTON was denied due process of

law because the trial court below in the face of a iLegislativé Mandate

denied him the right to have the case thrown out (or at least refiled)

for the want of an allegation of culpability (which caused the complaint

to spell out no crime) and denied him the right to have the jury determine

if he had the required culpability (required, that is, by the Legislature).

(Note: How does the legislature “plainly” dispense with the

requirement of culpability? Certainly no one would seriously

contend that a specific express dispensation would be invalid -

or unconstitutional. Agains the Legislature may, by ancilliary

acts, dispense with the requirement of culpability, thus in

ROSS the CCrA determined that the Legislature had expressly

dispensed with the requirement of culpability in cases invovling

intoxicants because in Sec. 8.04(d) PC and Sec. 19.05(b PC

the Legislature defined "intoxication" to mean that the

person involved doesn't have the normal use of his mental

faculties, thus making any kind of mental state irrelevant.

May the Legislature "plainly" dispense with the requirement

of culpability by moving one statute from one number to another?

Or by a change in its content? This is suggested in AMERICAN PLANT

Vv STATE 587 SW[2] 679, and 2ULAUF cited AMERICAN PLANT ; BUT if

this is sothen the requirement of culpability was reinstated

in the Texas speeding law since Texas changed its

speeding law froma "rigid" law which clearly dispenses with

culpability - to the more flexible prima facie reasonable and

prudent law in 1951, where the requirement of culpability

is clearly implied by using the word "reasonable" for it

is impossible to something that is "unreasonable" without

knowledge or a mental state of some sort or another. Viz.,

see FIRST CITY N. BANK v JAPHET 390 SW[2] 70, Ct. Civ. Apps.

Houston, 1965, Appl. for Writ of Err. Den'd. by Sup. Ct. for

want of Jurisdiction, in which it was held that a man

was not guilty of negligence when where he suffered a heart

attack and lost consciousness, cr. Rest. Torts Sec. 166. In any

event the Legislature, it is submitted, cannot "plainly"

dispense with culpability by using the word "shall" only

as Z2ULAUF says it did. Z2ULAUF crossed the Gimly perceived

line between Consitutionally permissible judicial construction

into Constitutionally impermissible judicial legislation. If

the use of "shall" (the mandatory form of to-be) permits such

a judicial construction of the speeding statute, then the CCra

could use the same device to eliminate the requirement of

culpability from any defined crime where the mandatory form of

9.

a

of any verb is used. Such is irrationality

carried to sublime heights.

II (VAGUENESS)

Once more the Travis County Attorney misses the problem SITTON

has raised.

Texas has a longish history of the void-for-vagueness

doctrine:

In GRIFFIN 218 SW 294 (1920),

the Court held void for vagueness a statute which proscribed the

operation of a car at night with headlights which would seriously

interfere with an oncoming car or temporarily blind an oncoming driver

because ~- whether or not the act was a crime - it was

",..made to depend largely upon the peculiarities that may

affect the vision of the driver of the approaching vehicle.

That the statute is commendable in purpose, that it strikes

at an annoying evil, is not to be questioned; but its terms are

sO vague that we are constrained to hold that, under the principlas

obtaining in the framing of criminal Statutes, it is inoperative

and unenforceable as denouncing a crime."

In ANDERSON 21 SW(2) 499 (1929), the dispuise statute was held void for

vagueness because the criminal act was made to depend upon the beholder

or the person offended.

In WILSON 59 SW(2) 399 (1933), the Court threw out the first Dwi

statute as being void for vagueness.

In CHERNOWSKY 217 SW(2) 673 (1949) the Court declared void for vagueness

Art. 670ld, Sec. 51 TCS which made it an offense to drive (recklessly)

"Without due caution or circumspection"

relying on GRIFFIN, supra.

In IRVEN 136 SW(2) 608 (1940) the Court declared that pert of the

liquor law void for vagueness which made certain acts offensive to

public decency and used the GRIFFIN teaching to do so.

In PIERCE 75 SW(2) 264 (1934), the Court held a Houston ordinance void

for vagueness which proscribed the distribution of "bills, or paper

and advertising matter", relying on GRIFFIN.

(They also threw it out for substantive due process.)

Oe ee ce ney meee amp ee queen ae + comeenes

In MEADOWS 109 SW(2) 1061 (1937) the Court held void for vagueness a |

Dallas ordinance making it illegal to drive (recklessly) in wanton H

—— for the safety of persons or property relying on the GRIFFIN.

octrine.

10.

|

The Supreme Court of the State of Texas has relied on the GRIFFIN

teachings to hold apart of the Sunday Law unconstitutional as void

for vagueness in STATE v SHOPPERS WORLD, INC. 380 SW(2) 107 (1964).

And in 1932, the Commission of Appeals in ABBOTT vs ANDREWS 45 Sw(2)

568 held that a statute providing that slow moving vehicles should keep |

to the right was void for vagueness using GRIFFIN. And twice in 1925,

in GALVESTON H&SA vs DUTY 277 SW 1057, and in INTERNATIONAL & GN vs

MALLARD 277 SW 1051, the Commission of Appeals held that GRIFFIN con-

trolled the validity of a statute requiring a car - where the vision

was obscured - to cross a railroad track at 6 mph. It declared the

statute void for vagueness.

In 1942 the Court of Civil Appeals in Austin, in RR COMM. vs FT. WORTH

& DC 161 SW(2) 560 used GRIFFIN to declare a statute void for vagueness

which provided that a railroad could not use more than one engine

except when going up a "steep grade".

In the recent HOWARD case (No. 56,991, 9/19/79) the ecm held that

the loitering ordinance of the City of Austin was void for vagueness

because it made it an offense to be in a public or private place

",..without being able to give a satisfactory account..."

for being there; and there was nothing in the statute which defined |

“satisfactory accouset”

AND

",.., such a standard delegates unguided and unrestrained

discretion to the arresting officer to decide what answers

given by a potential arrestee are ‘satisfactory accounts’ and

which are not.”

Also see NOWAK: CONSTITUTIONAL Law (1978) at. pages 726

etc.

(A copy of the HOWARD opinion is attached.)

In short, the doctrine is clear both in Texas as well

as in this Court:

If a statute is so framed as to permit

criminality-content to rest in the judg-

ment of some third party, the courts, or

the arresting police-person; or

if the statute is framed so as to fail to give

fair notice of the forbidden conduct

then the statute is impermissible under the Constitution of the United

States, PAPACHRISTOU v JACKSONVILLE 405 US 156; 31 LE(2) 110; 92 SC 839.

In 1885, in US v REESE 92 US 214; 23 LE 563; = SC __, this

Court said:

"It would certainly be dangerous if the Legislature

could set a net large enough to catch all possible

offenders and leave it to the courts to step inside and

say who could rightfully be detained and who could be

set at large.”

MICHIGAN v DeFILLIPPO 443 US 31; 61 LE(2) 343; 92 SC 2627,

held that police are not required to predetermine the constitutionality

of a law they are supposed to enforce

il.

"... with the possible exception of a law so grossly

and flagrantly unconstitutional that any person

of reasonable prudence would be bound to see its flaws.

Society would be ill served if its police officers took it

upon themselves to determine which laws are and which

are not constitutionally entitled to enforcement."

Certainty is reguried of statutes particularly criminal statutes.

The forbidden conduct must be made apparent from the statute so that

reasonable men can know what their Legislature has determined to be their

rightful or wrongful conduct. The Criminality-Content of a statute

cannot be left up to a third party, to the courts or to the police.’

To do so is to put the standart for crime into the hands of an

individual when the Soverign is the sole purveyor of what is or

isn't a crime. Cr. 21 AJ(2) 97, Crim. Law Sec. 17. See also

RAEBECK v NY 391 US 462; 20 LE(2) 741; 88 SC 1716.

6 ALR(3) 1326 does not reflect that the great weight of

authority throughout the Untied States is in favor of the

validity of such statutes as the Texas speeding law. The article

does show that a divergence exists in various courts as to

the vagueness of some such statutes as Opposed to the clarity of

others.

16 LE(2) 1231 (as supplementing prior articles in LE) reflects

that the doctrine of bagueness as set out above is still viable.

(In Texas the Legislature - prior to 195] - had enacted e

rigid speed law. The so called prima facie reasonable and

prudent speed law came into effect in 1951 and made its first

appearance before the CCrA in ROWLAND v STATE 311 SW[2) 831

in 1957. Texas ‘had only a three judge court at the time.

One judge said the act was constitutional. One judge said

it wasn't. And one judge said there was no need

to decide the Constitutional Question. Later in EAVES

Vv STATE 353 SW[2] 231, the judge who said the question

didn't need answering, switched to vote for constitutionality

- NOT BECAUSE OF THE ARGUMENTS FOR SAME - but becasue thrity

other states had similar laws.)

No Texas Court has ever really made any kind of in depth study or deci-

sion on the question of the constitutionality of the Texas speeding law

where the attack has been for vagueness.

Nor has this Court ever had the question as posed herein.

For the Travis County Attorney to say that the cases cited are

only epplicable to First Amendment rights is not only misleading but

clearly without any relevancy whatsoever.

12.

sit (PRESUMPTION)

Where a person goes faster than the prima facie speed as SITTON

might be considered to have been doing in this case; the State - as

it did here - relied on the excessive prima facie speed to prove

the essential element of unreasonableness.

(If the State says that it relied on the opinion of the

officer, then it cleraly runs afoul of the vagueness

doctrine set out above, see II, supra, for then, clearly,

the criminality-content of the speeding law is furnished

by the opinion of a third party. Once a statute is

so read, it fails under the vagueness doctrine for the alleged

offender isn't able to give the same criminality-content to

the statute as the policeman does; and contrarywise the

policeman can give criminality-content to the action of

the alleged offender who gives legal content to what he is

doing. In short, one man's reason is another man's irration-

ality; this is probably the rationale behind this Court's

description of the "standard" of "reasonable" as

being “amorphous” PEYTON v NY US __: 63 LE[2] 639;

100 sc __.)

The Travis County Attorney cites THOMAS v STATE 474 SW(2) 692

for the proposition that "prima facie” evidence must be defined to the

jury. This is so, BUT IT IS ALSO OMMISSIVE OF THE PERTINENT HOLDING OF

THE CASE. THOMAS really, and relevantly here, stands for the

proposition that the word "prima facie' means that a person is

“presumed” to have been acting "unreasonably" unless he

produce evidence to the contrary.

THOMAS, in short, makes the presumption that travelling over

the prima facie speed limit is unreasonable and imprudent, a

burden-shifting presumption squarely contrary to ULSTER COUNTY

COURT v ALLEN 442 US 140; 60 LE(2) 777; 99 SC 2213 (as follows):

Presumptions and inferences are a staple of our adversary

System; there are times when it is "necessary" that one arrive

at one fact flwoing from a proven or "basic" fact; BUT

THE CONSTITUTIONAL VALIDITY OF SUCH EVIDENTIARY DEVICES

DEPENDS ON THE STRENGTH OF THE CONNECTION BETWEEN THE

PROVEN FACT AND THE PRESUMED FACT: AND IN & CRIMINAL CASE

SUCH AN EVIDENCTIARY DEVICE CANNOT

"undermine the factfinder's responsibility at trial...

to find the ultimate facts beyond a reasonable doubt.”

The most common device is the permissive presumption

which permits - but doesn't require - the factfinder

to infer a fact from a proven fact; BUT DOESN'T REQUIRE

THE DEFENDANT TO DO ANYTHING, i.e. it doesn’t place

any burden on the defendant.

Under this device the test is whether there

is a relationship between the proven fact and

the inferred fact sufficient to permit the infer-

ence

13.

Mandatory presumptions tel] "... the trier that he

or they must find the elemental fact upon proof

of the basic fact, at least unless the defendant has come

forward with some evidence to rebut the presumed connec-

tion between the two facts. "

Cf. THOMAS, supra, which interpretes Art.

670ld, Sec. 166(a) TCS to be a presumption which

may be followed unless evidence is produced by

the Defendant to rebut it.

There is a distinction

"... between a permissive presumption on which the

prosecution is entitled to rely as one not-necessarily-

sufficient part of its proof and a mandatory presumption

which the jury must accept even if it is the sole evidence

of the offense.

In the latter situstion, since the prosecu-

tion bears the burden of establishing guilt, it may

not rest its case entirely on a presumption unless the

fact proved is sufficient to support the inference of

guilt beyond a reasonable doubt.”

Permissibe presumptions may apply to a not-necessarily-suf-

ficient part of the prosecution's case and the only

Constitutional test is that there be some rational relation-

Ship between the proven fact and the inferred fact. (i.e the

LEARY v US 395 US 6; 23 LE[2]) 57; 89 SC 1532 test).

"As long as it is clear that the presumption is not

the sole and sufficient basis for a finding of guilt,

it need only satisfy the test described in Leary."

So spoke this Court in ULSTER COUNTY COURT, which it echoed in

SANDSTROM v MONTANA 442 US 510; 61 LE(2) 39; 99 SC 2450 and

SANDSTROM clearly damns burden-shifting presumptions such as the

one used in the case at bar.

(Here the facts reflect clearly that apart from the

criminality-content given the situation by the police-

person, the conviction of guilt rested solely on the

presumption arising from the statute, for apart from

such a presumption, there was no evidence of unreasonable-

mess on the part of SITTON. In short “the sole and sufficient

basis for the finding of guilt" in this case is the

presumption. If it is the police-person's testimony that

in her opinion SITTON was unreasonable, then she and she

alone gave criminaltiy-content to his action, for he said he

was acting reasonably.)

HERE THE FACT PROVEN was that SITTON was going more than 30 mph which

the prima facie speed limit . Question?

CAN ONE SAY FROM THIS FACT ALONE THAT SITOON WAS ACTING

IN AN UNREASONABLE AND/OR IMPRUDENT MANNER? Particularly

where there were no hazzards shown to have existed at the

time - BEYOND A REASONABLE DOUBT?

14.

Does the inference of unreasonableness and¢/or imprudence

flow from the proof of over prima facie limit speed BEYOND

A REASONABLE DOUBT?

The answer is so obvious as to make the question(s) rhetorica!.

Iv (SUBSTANTIVE DUE PROCESS)

As in much of the other parts of her answer, the Travis

County Attorney simply says "it isn't so” and offers no aythority

other than her own (which is the weakest form of argumentation).

People, by Texas law have a natural right to the use of

the streets. To say that the State of Soverign cannot control the use

of the streets would be contrary to law and good sense, and SITTON does

not now, nor before, say that. He does say however, that the Soverign

has no power (or can't use it if it be had) to control the use of

the streets as it has done here.

Substantive Due Process questions the power of the Soverign to

go into various areas; Procedural Due Process questions whether the

Soverign does this so as to protect rights afforded. Somewhere

between the two rests the question of whether the Soverign has reason-

ably intruded into the area it seeks to govern. In short the

reasonableness of the intrusion as compared to the reasoanbleness

of the manner of the intrusion is Cceemed part of substantive due

process.

Take for example this case. That the Soverign can control

velocities of motor vehicles on streets is not denied; but they

must do so by standards which are reasonable; and they must do so, so

that a person intruded upon has a way of testing the intrusions. The

middle point is what is being attacked here, and it is inserted into

the category of substantive due process for it would seem (reasonably)

that no Soverign intrusion can be sustained unless it be a rational in-

trusion; i.e. unless the actions sought to be governed relate rationally

to the evil sought to be abated, and unless such ratione. relationship

be made apparent in the Soverign's act of intrusion (Standards).

(This is not the same question as whether or

not the intruded-on person's rights are protected.)

Here Texas seeks to curtail speed on public roads for

public safety. If for example Texas said YOU CAN'T SPEED; clearly

Texas tas gone into matters it has no right to control, for speeding

per se isn't sufficient for the Soverign to intervene. Suppose Texas

Says YOU CAN'T SPEED ON PUBLIC STREETS, then clearly Texas can legislate

in such an area for safety sake, not only as to the driver but also

as to others (citizenry). But if Texas were to say YOU CAN'T sp¥ED

15.

ON PUBLIC STREETS, and only say that, it would set a standard which

in itself rationally reflects the relationship between speeding and

the public we’ fare.

(Some .cts are so vicious in and of themselves as to

obviate the necessity of making such rational relationship appear,

ex.g. murder. But some acts, particularly those which are suscep-

tible to legislation without a mens rea, need to have the

rationality of their relationship spelled out otherwise the

appearance of justice fails and people will have no respect for

a law otherwise valid and useful to the public welfare. ix.¢.

speeding: today with the 55 mph law of 23 USC 154, Texas passed

Art. 670ld, Sec. 169B TCS which makes it abundantly clear

that the only time Texas may set a 55 mph prima facie limit

is for the purpose of getting Federal Money. This hardly

appears to be a rational relationship to the curtailment

of speed especially when the rational relationship between

the curtailment of speed and public welfare was set

at 70 mph just six years ago, i.e. prior to the passage of

23 USC 154.)

Since the advent of democracy as a world wide exemplar of

a large government, it would seem proper to say tha the word" Soverign"

underwent a new definition. Whereas it was once said that a Soverign

could do no wrogn, and later it was said that a Soverign was unaccount-

able to the people except in certain areas; now it could be said

that Soverigns have no power in certain areas for the tribe of

persons (democracy) gave the Soverign no power in those areas. Thus,

it is submitted is the true picture that sets the groundwork for substan-

tive due process. A Soverign has no power to legislate in certain

areas, viz, GRISWOLD v CONNECTICUTT 381 US 479; 14 LE(2) 510; 8&5

SC 1678. Likewise a Soverign must show - unless the same is abucnantly

(intensly) apparent - the relationship between its action and

the evil sought to be remedied.

(This is really what TOE v WADE 410 US 113; 35 LE[2) 147;

93 SC 705 and its off-shoots are saying. The Soverign has no

right to legislate in the area of the “liberty” of abortion

unless there be a rational relationship between the act

legislated aaginst and the evil sought to be remedied, and

further such rational relationship must, via the standards

used, be made to appear. In Re MURCHINSON 349 US 133'

99 LE 942; 75 SC 623 cites with approval OFFUT v US 348 US 11;

99 LE 11; 75 SC 1l where it was said "Therefore, justice

must satisfy the appearance of justice. Cf. WALL v AMERICAN

OPTOMETRIC ASSN. 379 FS 175, affd. 419 US 888.)

16.

The Travis County Attorney has not answered this argument except

to say “it isn't so” and “is clearly without merit” citing no

authority except her own to sustain her answer.

PRAYER

SITTON respectfully renews the prayer of his Statement and/or Petition

heretofore filed herein.

RESPECTFULLY SUBMITTED

=

eae ; I

“oH —_— =f 7

J. pDarrouzet

rronte ron 206 SITTON /

Appellant-Petitioner

‘ _ CERRIFICATE OF SERVICE

The undersigned attorney ehreby certifies that a

a copy of the above has been forwarded to the

County Attorney of Travis County, Texas and the

Attorney General of t te of Texas. .

‘DYAYIE EDWARD HOWARD, Appellant

| aad, -56,991. v.

the State of Texes, Appellee

Appeal from Travls Comty

fe)

Tis 2a en apreal fran a conviction for Possession of }

Ima. bunistyzent Wa3 assessed at a $100 Mne and 5 days

Placed cn prcba

The officer asl:

”

Sion for 12 menths,

On the Cvening of Feb,

behind the Cverett Hordware Store in Austin

were approached by @ City polic > Officer 4r;

5, 1977, appellant

Hush Lewe

€S3s than two o

in Jail, and

unces of mari.

appellant was

© ccmanions were in an area

lying in leav

vestigating nolses te heard

"Nothing, They were al} ordered acatnsi the wall cf the building so t

hen asked vhat ho was doing there, and he said

ed if he had ever been ares

then placed under arrest for

beer, then ask

All three were

After they vere

rren eppellant'

In his first

Press; contend

NGing the con

lant was t

arrested

uieiconstisutional munze

"ae Sha Builth]

about public

to be, under

account of t

tional-on-dts face

gmuass necessarily

Tn practice;- such a Ste

Testing officer to Cecide what

count{s]" enc which are

*gible

Biict OF the officer

cr private

Suspicious

he ’

ted before » he

error éprellant Challenres the a

traband was recovered as a result of anim)

Said hes he h

cer Austin City

and placed in the police car, a baggie of merihuana WaS tuken

°

es, when they

frem that area,

one of the girls answered,

hey could be

he was Srinking

ad, fo burrlary,

Ordinence 22-9,

ental of. his _ motion to S.Ip-

ipal ordinarice? the ordinance under chailenge

“for-eny parson within the efty

buildings cr premises, where he hes no right

circumstances , and without being able to give a Satisfactory

not.2The” r

‘Guide those*chary,

ne $556

its-meaning: and differ'as to its application,

onnally

‘<Genl;- Construction Co., 2

awful” arTest ugden.

provides:

in the nighttime tn or

or permission

®.. a er Vi~

€9 U.S. 385,473.

ed with “its, enforcemen =~ (Baker; supra),

~ -

lank" standard th x tnkes the scope of offending as

. } -cOnduct a PEO

ermdinaticn .Of whether he finds the detainee's acy

».£O be, in the officer!

S Judgment, 7

the ordinance uncer which appellant was arrested to be vatently imecnst{~

face, we mst detormine whether the contrevend seized 3)

sCoint of the Sffomstances “th which het. fourd

satisfactory,"

Heving found

tutional on its

errest should have been Suppressed by the trial court,

In the recent

decision

weruant to that

3211, the Court announced a

ant to an arre

EN. though it is subsequent]. Geclared unconstitutional

st — @ law

». .uhe Court

fiowever™ geciSrize "thie posstble excestaiy OF a law to En; Sly and flagrantly i).

reasonable.

>

flternati vely, Ke note

#n unconstitutional

Nwliy carrying

——

a svi

mi “ter of state lew, inde

hole thet the evidence Seized incident to an arrest

4 Texas Jay, See, Art. de A)

excluzzhble unde

ccouse the tria) ecurt

Of error is custsinod,

The judgrent 4s reversed and the cause reranded,

(Delivered Septe-ber 19, Bane

Citon, P.J.. Dour}

me Ontinsnté 4

that in.

cy statute*was or.

Fra, a knife se

cered Suppress

tchblace Ini fe: we reaffirm the soun

ized sncident

to_see its flaws,"

Fan’ cn® that ‘leaves to

Ons element -of the offense, -and of

Judgment. of.

to_his*ow 4

teby: the potentiad defonderit? ~We hold ‘the tine

Men & ty

ony Person >

suppressed > =e ie

to an Brest unée

ed ina Presecution for milar-

Gness of the r

ker rule as a

nGently of the standara émoneed in DeFillipso, SUP.%.. a2

erred in denying

T. Davis, J., and Pally, J., dissent,

~~

Language, os was done inTelor~_y. SES. 1G

Offense is found Ccastitutionlly defective

Teéden the SCs of the Statuce

19, Tex.Censt.

apellént's ms

—+-

eS ne er vers, ae . se a

ofS ursving “Rand vort0n DY Severize the invalia:

3.8.W.24 poe

> Art. 38.23,

ticn to Surpre

Odeon, Ji:

~~

"CINL ene ele

» the offense muss fall, bec

lewAslative act, and violate the leopislative itent., The co

not theretcfore an offense,

).

+» 523 S.W.20 71, 737

€, Prohibiting conduct

(conarring Opinii

el’ an uncorstituticna] law is

C.C.P,

SS, the ground

dre

tle Tt

“Ent ofa sincte

245 to sever the

» Prohibit new CerSuct not pro-

“rts would te

" Bixon vy,

RONALD RALPH HERNANDEZ, Appellant

NO. 59,930 Vv. --- Appeal from TRAVIS County

THE STATE OF TEXAS, Appellee

OPINION

This is an appeal from a specding conviction under Article

6701ld, Sec. 166, V.A.C.S. The record reflects that the case

was originally tried in the Justice of the Peace Court, Pre-

cinct No. 4, Travis County. The appellant was found guilty and

assessed a fine of $12.50. Appellant appealed to County Court

at Law No. I of Travis County. He was found guilty and punish-

ment was assessed at a fine of $101.00.

The appellant was issued a ticket for doing 70 miles per

hour in a 55 mile per hour zone. The appellant believed that

his speed was between 58 and 60 miles per hour. The State

and the appellant stipulated to the fact that the appellant's

speedometer was found to be off by 10 miles per hour.

In grounds of error one and two, the appellant contends

that the complaint is fatally defective in that it fails to

allege a culpable mental state, and that reversible error

occurred because the State failed to prove a culpable mental

state.

This Court has recently held in Zulauf v. State, ____S.W.24

, No. 62,307 (Tex.Cr.App., delivered December 12, 1979)

that speeding is a strict liability offense which does not

require that a culpable mental state be alleged. In Zulauf

v. State, supra, we said:

"The clear command of Article 670ld, Sec.

166, supra, that:

*... mO person shall drive a vehicle

on a highway at a speed greater than

is reasonable and prudent under the

circumstances then existing...'

provides more than adeqi*ce support for

our holding herein that the Legislature

intended to make speeding a strict

liability offense where liability would

not be contingent upon the allegation of

a culpable mental state."

Hernandez - 2

AS no culpable mental state is required to constitute the offense

of speeding, the State did not err in failing to allege and

prove one. These two grounds of error are overruled.

In grounds of error three and four, the appellant contends

that the complaint is fatally defective because it fails to

state an offense. The appellant urges that the exact location

of the offense is an element which must be alleged, because

without such an allegation, appellant is not informed as to

why it was unreasonable and imprudent to be traveling at 70

miles per hour.

Article 45.17, Vernon's Ann.C.C.P. provides that a complaint

must state:

(1) The name of the accused, if known, and if

unknown, shall describe him as accurately

as practicable;

(2) The offense with which he is charged, in

plain and intelligible words;

(3) That the offense was committed in the county

in which the complaint is made; and

(4) It must show, from the date of the offense

stated therein, that the offense is not

barred by limitation.”

The complaint in this case, omitting the formal parts,

states:

"Ronald Ralph Hernandez, did then and

there operate and drive a vehicle, to-wit:

pickup upon a public street and highway

of Texas, at the unreasonable, imprudent

and unlawful speed of 70 miles per hour

which was then and there a speed greater

than was reasonable and prudent under the

conditions then existing, at which time

and place the prima facie reasonable and

rudent speed limit was 55 miles per hour."

feachasia added)

A motion to quash was not filed; therefore, Only defects

which would render the complaint fundamentally defective may

now be considered. Scott v. State, 543 S.W.2a 128 (Tex.Cr.App.

1976). The complaint must bitees all of the essential elements

of the offense to be sufficient. See American Plant Food v.

State, 508 S.W.2d 598 (Tex.Cr.App. 1974). We find that the

Hernandez - 3

offense with which the appellant is charged is set forth in

the complaint in plain and intelligible words, as recuired by

the statute. The complaint is not fundamentally defective

because it does not explain how the 55 mile per hour limit was

established. These grounds of error are overruled.

Appellant in his final ground of error, contends that the

trial court erred in finding him guilty since the State admitted

that the appellant was operating under a mistake of fact, thereby

making V.T.C.A. Penal Code, Sec. 8.02 applicable.

Section 8.02(a), supra, states:

"It is a defense to prosecution that the

actor through mistake formed a reasonable

belief about a matter of fact if his mistaken

belief negated the kind of culpability

required for the commission of the offense."

Mistake of fact constitutes a defense only if it negates the

culpable mental state. As the offense of speeding does not

require the proof of a culpable mental state, Sec. 8.02, supra,

is not applicable. See Zulauf v. State, supra. This ground

of error is overruled.

The judgment is affirmed.

PER CURIAM

(Delivered January 16, 1980)

By: Panel 3; lst Quarter, 1979

Carl E. F. Dally, Judge

W. C. Davis, Judge

Sam Houston Clinton, Judge