Suggestions for Reasonable and Prudent Defense 26th Annual CLE of the Traffic Lawyers of Texas Robert W. Eutsler

JUROR DISCONNECT Why is it that jurors can drive to jury duty above the limit in the morning, and during the same day convict some hapless driver for the very same conduct (speeding)?

JUROR DISCONNECT Why is it that jurors can drive to jury duty above the limit in the morning, and during the same day convict some hapless driver for the very same conduct (speeding)? JURORS THINK THEY’RE BOUND TO CONVICT IF ABOVE SPEED LIMIT

Prima Facie Evidence

Prima Facie Evidence What it is not

Prima Facie Evidence What it is not NOT A PRIMA FACIE CASE Evans v. State, 623 S.W. 2d 924, 928 (Tex. Crim. App. 1981)

Prima Facie Evidence What it is not NOT A PRIMA FACIE CASE Evans v. State, 623 S.W. 2d 924, 928 (Tex. Crim. App. 1981) NOT THE SAME AS PRIMA FACIE EVIDENCE IN CIVIL CONTEXT Coward v. Gateway Nat. Bank of Beaumont, 525 S.W. 2d 857, 859 (Tex. 1975). Evans v. State, 623 S.W. 2d 924, 928 (Tex. Crim. App. 1981)

Prima Facie Evidence What it is not NOT A PRIMA FACIE CASE Evans v. State, 623 S.W. 2d 924, 928 (Tex. Crim. App. 1981) NOT THE SAME AS PRIMA FACIE EVIDENCE IN CIVIL CONTEXT Coward v. Gateway Nat. Bank of Beaumont, 525 S.W. 2d 857, 859 (Tex. 1975). Evans v. State, 623 S.W. 2d 924, 928 (Tex. Crim. App. 1981) NOT EVIDENCE Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006)

Prima Facie Evidence What it is not NOT A PRIMA FACIE CASE Evans v. State, 623 S.W. 2d 924, 928 (Tex. Crim. App. 1981) NOT THE SAME AS PRIMA FACIE EVIDENCE IN CIVIL CONTEXT Coward v. Gateway Nat. Bank of Beaumont, 525 S.W. 2d 857, 859 (Tex. 1975). Evans v. State, 623 S.W. 2d 924, 928 (Tex. Crim. App. 1981) NOT EVIDENCE Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006) DOES NOT SUPPLY EVIDENCE Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006)

Prima Facie Evidence What it is not NOT A PRIMA FACIE CASE Evans v. State, 623 S.W. 2d 924, 928 (Tex. Crim. App. 1981) NOT THE SAME AS PRIMA FACIE EVIDENCE IN CIVIL CONTEXT Coward v. Gateway Nat. Bank of Beaumont, 525 S.W. 2d 857, 859 (Tex. 1975). Evans v. State, 623 S.W. 2d 924, 928 (Tex. Crim. App. 1981) NOT EVIDENCE Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006) DOES NOT SUPPLY EVIDENCE Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006) NOT AN ELEMENT OF AN OFFENSE Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006)

Prima Facie Evidence What it is not NOT A PRIMA FACIE CASE Evans v. State, 623 S.W. 2d 924, 928 (Tex. Crim. App. 1981) NOT THE SAME AS PRIMA FACIE EVIDENCE IN CIVIL CONTEXT Coward v. Gateway Nat. Bank of Beaumont, 525 S.W. 2d 857, 859 (Tex. 1975). Evans v. State, 623 S.W. 2d 924, 928 (Tex. Crim. App. 1981) NOT EVIDENCE Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006) DOES NOT SUPPLY EVIDENCE Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006) NOT AN ELEMENT OF AN OFFENSE Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006)

Prima Facie Evidence What it is

Prima Facie Evidence What it is IT IS A GUIDE TO JURORS THAT THEY MAY INFER AN ELMENTAL FACT FROM PROOF OF ANOTHER FACT Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006)

Prima Facie Evidence What it is IT IS A GUIDE TO JURORS THAT THEY MAY INFER AN ELMENTAL FACT FROM PROOF OF ANOTHER FACT Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006) IT IS A LOGICAL DEDUCTION FROM CIRCUMSTANCES OF A CASE Hardesty v. State, 656 S.W.73, 76 (Tex. Crim. App. 1983)

Prima Facie Evidence What it is IT IS A GUIDE TO JURORS THAT THEY MAY INFER AN ELMENTAL FACT FROM PROOF OF ANOTHER FACT Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006) IT IS A LOGICAL DEDUCTION FROM CIRCUMSTANCES OF A CASE Hardesty v. State, 656 S.W.73, 76 (Tex. Crim. App. 1983) AN EVIDENTIARY TOOL (Commonwealth v. MacPherson, 752 A.2d 384, 389 (Pa. 2000)

Prima Facie Evidence What it is IT IS A GUIDE TO JURORS THAT THEY MAY INFER AN ELMENTAL FACT FROM PROOF OF ANOTHER FACT Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006) IT IS A LOGICAL DEDUCTION FROM CIRCUMSTANCES OF A CASE Hardesty v. State, 656 S.W.73, 76 (Tex. Crim. App. 1983) AN EVIDENTIARY TOOL (Commonwealth v. MacPherson, 752 A.2d 384, 389 (Pa. 2000) USUALLY CALLED A PRESUMPTION Evans v. State, 623 S.W. 2d 924, 928 (Tex. Crim. App. 1981)

Prima Facie Evidence What it is IT IS A GUIDE TO JURORS THAT THEY MAY INFER AN ELMENTAL FACT FROM PROOF OF ANOTHER FACT Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006) IT IS A LOGICAL DEDUCTION FROM CIRCUMSTANCES OF A CASE Hardesty v. State, 656 S.W.73, 76 (Tex. Crim. App. 1983) AN EVIDENTIARY TOOL (Commonwealth v. MacPherson, 752 A.2d 384, 389 (Pa. 2000) USUALLY CALLED A PRESUMPTION Evans v. State, 623 S.W. 2d 924, 928 (Tex. Crim. App. 1981) SLIPPERIEST MEMBER OF FAMILY OF LEGAL TERMS McCormick on Evidence (3d ed., Cleary, ed.) p. 965 (1984)

Prima Facie Evidence What it is IT IS A GUIDE TO JURORS THAT THEY MAY INFER AN ELMENTAL FACT FROM PROOF OF ANOTHER FACT Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006) IT IS A LOGICAL DEDUCTION FROM CIRCUMSTANCES OF A CASE Hardesty v. State, 656 S.W.73, 76 (Tex. Crim. App. 1983) AN EVIDENTIARY TOOL (Commonwealth v. MacPherson, 752 A.2d 384, 389 (Pa. 2000) USUALLY CALLED A PRESUMPTION Evans v. State, 623 S.W. 2d 924, 928 (Tex. Crim. App. 1981) SLIPPERIEST MEMBER OF FAMILY OF LEGAL TERMS McCormick on Evidence (3d ed., Cleary, ed.) p. 965 (1984) BENCH AND BAR SHOULD USE GREAT CAUTION Hollander v. State, 414 S.W.3d 746, 756 (Tex. Crim. App. 2013) (Cochran, J., concurring)

Prima Facie Evidence What it is IT IS A GUIDE TO JURORS THAT THEY MAY INFER AN ELMENTAL FACT FROM PROOF OF ANOTHER FACT Guzman v. State, 188 S.W.3d 188, 193 (Tex. Crim. App. 2006) IT IS A LOGICAL DEDUCTION FROM CIRCUMSTANCES OF A CASE Hardesty v. State, 656 S.W.73, 76 (Tex. Crim. App. 1983) AN EVIDENTIARY TOOL (Commonwealth v. MacPherson, 752 A.2d 384, 389 (Pa. 2000) USUALLY CALLED A PRESUMPTION Evans v. State, 623 S.W. 2d 924, 928 (Tex. Crim. App. 1981) SLIPPERIEST MEMBER OF FAMILY OF LEGAL TERMS McCormick on Evidence (3d ed., Cleary, ed.) p. 965 (1984) BENCH AND BAR SHOULD USE GREAT CAUTION Hollander v. State, 414 S.W.3d 746, 756 (Tex. Crim. App. 2013) (Cochran, J., concurring)

CONSTITUTIONAL IMPLICATIONS

CONSTITUTIONAL IMPLICATIONS the presumption of innocence

CONSTITUTIONAL IMPLICATIONS the presumption of innocence the 5th Amendment right not to testify

CONSTITUTIONAL IMPLICATIONS the presumption of innocence the 5th Amendment right not to testify the state’s burden of proof beyond a reasonable doubt

CONSTITUTIONAL IMPLICATIONS the presumption of innocence the 5th Amendment right not to testify the state’s burden of proof beyond a reasonable doubt the jury’s role as fact finder

CONSTITUTIONAL IMPLICATIONS the presumption of innocence the 5th Amendment right not to testify the state’s burden of proof beyond a reasonable doubt the jury’s role as fact finder

THE CHARGING INSTRUMENT (THE COMPLAINT)

THE CHARGING INSTRUMENT (THE COMPLAINT) IT IS AN EVIDENTIARY TOOL, NOT AN ELEMENT

THE CHARGING INSTRUMENT (THE COMPLAINT) IT IS AN EVIDENTIARY TOOL, NOT AN ELEMENT TERM “PRIMA FACIE EVIDENCE” DOES NOT BELONG IN THE COMPLAINT(See Evans v. State, 623 S.W. 2d 924, 925 (Tex. Crim. App. 1981 for example of prima facie evidence presumption not mentioned in complaint and information)

THE CHARGING INSTRUMENT (THE COMPLAINT) IT IS AN EVIDENTIARY TOOL, NOT AN ELEMENT TERM “PRIMA FACIE EVIDENCE” DOES NOT BELONG IN THE COMPLAINT(See Evans v. State, 623 S.W. 2d 924, 925 (Tex. Crim. App. 1981 for example of prima facie evidence presumption not mentioned in complaint and information) MOVE TO QUASH COMPLAINT IF IT CONTAINS PRIMA FACIE OR PRIMA FACIE EVIDENCE

THE CHARGING INSTRUMENT (THE COMPLAINT) IT IS AN EVIDENTIARY TOOL, NOT AN ELEMENT TERM “PRIMA FACIE EVIDENCE” DOES NOT BELONG IN THE COMPLAINT(See Evans v. State, 623 S.W. 2d 924, 925 (Tex. Crim. App. 1981 for example of prima facie evidence presumption not mentioned in complaint and information) MOVE TO QUASH COMPLAINT IF IT CONTAINS PRIMA FACIE OR PRIMA FACIE EVIDENCE

Texas Municipal Courts Education Center Speeding Complaint IT IS AN EVIDENTIARY TOOL, NOT AN ELEMENT In the name and by the authority of the State of Texas:   I, the undersigned affiant, do solemnly swear that I have good reason to believe and do believe that _________________________, hereinafter called Defendant, on or about the _____ day of __________, 20__, and before the making and filing of this complaint, in the territorial limits of the City of _______________, and the State of Texas, the Defendant did then and there drive and operate a motor vehicle upon a public street, to wit: _______________, therein situated, at a speed which was greater than was reasonable and prudent under the circumstances then existing, (to wit: ______________________________________________________________) (at a speed of _____ miles per hour, at which time and place the lawful maximum prima facie reasonable and prudent speed indicated by an official sign then and there lawfully posted was _____ miles per hour.) Against the peace and dignity of the State.

PENAL CODE 2.05

PENAL CODE 2.05 THE CHARGE TO THE JURY WHERE THE RUBBER MEETS THE ROAD

PENAL CODE 2.05 THE CHARGE TO THE JURY WHERE THE RUBBER MEETS THE ROAD TEXAS JURY CHARGE FOR ALL CRIMINAL PRESUMPTIONS MANDATED BY PENAL CODE 2.05 includes those defined as “prima facie evidence.” EVANS v. state, 623 S. W. 2d 924, 928 (Tex. Crim. App. 1981)

PENAL CODE 2.05 THE CHARGE TO THE JURY WHERE THE RUBBER MEETS THE ROAD TEXAS JURY CHARGE FOR ALL CRIMINAL PRESUMPTIONS MANDATED BY PENAL CODE 2.05 includes those defined as “prima facie evidence.” EVANS v. state, 623 S. W. 2d 924, 928 (Tex. Crim. App. 1981) Penal Code 2.05 (2)(B) provides in part that if the facts giving rise to the presumption are proven beyond a reasonable doubt, the jury must be instructed it may find that the element of the offense sought to be presumed exists, but it is not bound to so find SPEED AND SPEED LIMIT ARE THE FACTS GIVING RISE TO THE PRESUMPTION 

PENAL CODE 2.05 THE CHARGE TO THE JURY WHERE THE RUBBER MEETS THE ROAD TEXAS JURY CHARGE FOR ALL CRIMINAL PRESUMPTIONS MANDATED BY PENAL CODE 2.05 includes those defined as “prima facie evidence.” EVANS v. state, 623 S. W. 2d 924, 928 (Tex. Crim. App. 1981) Penal Code 2.05 (2)(B) provides in part that if the facts giving rise to the presumption are proven beyond a reasonable doubt, the jury must be instructed it may find that the element of the offense sought to be presumed exists, but it is not bound to so find SPEED AND SPEED LIMIT ARE THE FACTS GIVING RISE TO THE PRESUMPTION  WHEN THE SPEED IS REASONABLE AND PRUDENT PENAL CODE 2.05 PERMITS CONVICTION BECAUSE THE JURY “MAY FIND THAT THE ELEMENT SOUGHT TO BE PRESUMED EXIST”

PENAL CODE 2.05 THE CHARGE TO THE JURY WHERE THE RUBBER MEETS THE ROAD TEXAS JURY CHARGE FOR ALL CRIMINAL PRESUMPTIONS MANDATED BY PENAL CODE 2.05 includes those defined as “prima facie evidence.” EVANS v. state, 623 S. W. 2d 924, 928 (Tex. Crim. App. 1981) Penal Code 2.05 (2)(B) provides in part that if the facts giving rise to the presumption are proven beyond a reasonable doubt, the jury must be instructed it may find that the element of the offense sought to be presumed exists, but it is not bound to so find SPEED AND SPEED LIMIT ARE THE FACTS GIVING RISE TO THE PRESUMPTION  WHEN THE SPEED IS REASONABLE AND PRUDENT PENAL CODE 2.05 PERMITS CONVICTION BECAUSE THE JURY “MAY FIND THAT THE ELEMENT SOUGHT TO BE PRESUMED EXIST” THIS IS IRRATIONAL AND ARBITRARY, AND THUS UNCONSTITUTIONAL Leary v. United States, 395 U.S. 6, 36 (1969)

PENAL CODE 2.05 THE CHARGE TO THE JURY WHERE THE RUBBER MEETS THE ROAD TEXAS JURY CHARGE FOR ALL CRIMINAL PRESUMPTIONS MANDATED BY PENAL CODE 2.05 includes those defined as “prima facie evidence.” EVANS v. state, 623 S. W. 2d 924, 928 (Tex. Crim. App. 1981) Penal Code 2.05 (2)(B) provides in part that if the facts giving rise to the presumption are proven beyond a reasonable doubt, the jury must be instructed it may find that the element of the offense sought to be presumed exists, but it is not bound to so find SPEED AND SPEED LIMIT ARE THE FACTS GIVING RISE TO THE PRESUMPTION  WHEN THE SPEED IS REASONABLE AND PRUDENT PENAL CODE 2.05 PERMITS CONVICTION BECAUSE THE JURY “MAY FIND THAT THE ELEMENT SOUGHT TO BE PRESUMED EXIST” THIS IS IRRATIONAL AND ARBITRARY, AND THUS UNCONSTITUTIONAL Leary v. United States, 395 U.S. 6, 36 (1969)

KEY CONCEPT NOTHING IN PENAL CODE 2.05 GUIDES JURORS HOW TO ASSESS REBUDDLE EVIDENCE Jury instructions must force the jury to assess the evidence as a whole, and explicitly preclude conviction when reasonable doubt exists IN THE LIGHT OF ALL OF THE EVIDENCE. United States v. Berry, 717 F. 3d 823, 832 (10th Cir. 2013). See also Commonwealth v. DiFrancesco, 329 A.2d 204, 200 (Pa. 1974).

TEXAS JURORS GO THROUGH A TWO STEP PROCESS (IN A SPEEDING CASE) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing. Trans. Code 543.351

TEXAS JURORS GO THROUGH A TWO STEP PROCESS (IN A SPEEDING CASE) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing. Trans. Code 543.351 STEP ONE

TEXAS JURORS GO THROUGH A TWO STEP PROCESS (IN A SPEEDING CASE) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing. Trans. Code 543.351 STEP ONE REQUIRES THE SPEED AND SPEED LIMIT BE PROVEN BEYOND REASONABLE DOUBT. Trans. Code 543.010. See Geick v. State, 349 S.W.3d 542 (Tex. Crim. App. 2011)

TEXAS JURORS GO THROUGH A TWO STEP PROCESS (IN A SPEEDING CASE) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing. Trans. Code 543.351 STEP ONE REQUIRES THE SPEED AND SPEED LIMIT BE PROVEN BEYOND REASONABLE DOUBT. Trans. Code 543.010. See Geick v. State, 349 S.W.3d 542 (Tex. Crim. App. 2011) STEP TWO

TEXAS JURORS GO THROUGH A TWO STEP PROCESS (IN A SPEEDING CASE) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing. Trans. Code 543.351 STEP ONE REQUIRES THE SPEED AND SPEED LIMIT BE PROVEN BEYOND REASONABLE DOUBT. Trans. Code 543.010. See Geick v. State, 349 S.W.3d 542 (Tex. Crim. App. 2011) STEP TWO DESCRIBES THE PERMISSIVE PRESUMPTION, AND GUIDES JURY THROUGH REBUTTAL EVIDENCE, IF ANY

TEXAS JURORS GO THROUGH A TWO STEP PROCESS (IN A SPEEDING CASE) Judge Cochran writes in her concurring opinion in Hollander v. State, 414 S.W. 3d 746, 756 (Tex. Crim. App. 2013) that the phrase “the law presumes” should not appear in jury instructions. THUS, Neither should “prima facie evidence” since it MEANS the SAME THING. Judge Cochran suggests the instructions should instead begin as follows: “You may, but are not required, to infer . . .” ID. See also Commonwealth v. DiFrancesco, 329 A.2d 204, 200 (Pa. 1974).

TEXAS JURORS GO THROUGH A TWO STEP PROCESS (IN A SPEEDING CASE) If you find both the speed and speed limit proven beyond a reasonable doubt, you may, but are not required, to infer the speed was greater than was reasonable and prudent under the circumstances then existing, but only if in light of all the other evidence you remain convinced beyond a reasonable doubt the speed was greater than was reasonable and prudent. Otherwise, you must find the defendant Not Guilty.

TEXAS JURORS GO THROUGH A TWO STEP PROCESS STEP ONE REQUIRES THE SPEED AND SPEED LIMIT BE PROVEN BEYOND REASONABLE DOUBT. Trans. Code 543.010. See Geick v. State, 349 S.W.3d 542 (Tex. Crim. App. 2011) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing. Trans. Code 543.351 STEP TWO DESCRIBES THE PERMISSIVE PRESUMPTION, AND GUIDES JURY THROUGH REBUTTAL EVIDENCE, IF ANY The state must also prove each of the other elements beyond a reasonable doubt before you can find the defendant guilty. Penal Code 2.05 (2)(D)

TEXAS JURORS GO THROUGH A TWO STEP PROCESS STEP ONE REQUIRES THE SPEED AND SPEED LIMIT BE PROVEN BEYOND REASONABLE DOUBT. Trans. Code 543.010. See Geick v. State, 349 S.W.3d 542 (Tex. Crim. App. 2011) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing. Trans. Code 543.351 STEP TWO DESCRIBES THE PERMISSIVE PRESUMPTION, AND GUIDES JURY THROUGH REBUTTAL EVIDENCE, IF ANY The state must also prove each of the other elements beyond a reasonable doubt before you can find the defendant guilty. Penal Code 2.05 (2)(D)

Suggested Jury Charge

Suggested Jury Charge An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing.

Suggested Jury Charge An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing. Two of those existing circumstances, the speed and speed limit, must first be proven beyond a reasonable doubt. If you have a reasonable doubt about either the speed or the speed limit, you must find the defendant not guilty.

Suggested Jury Charge An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing. Two of those existing circumstances, the speed and speed limit, must first be proven beyond a reasonable doubt. If you have a reasonable doubt about either the speed or the speed limit, you must find the defendant not guilty. If you find both the speed and speed limit proven beyond a reasonable doubt, you may, but are not required, to infer the speed was greater than was reasonable and prudent under the circumstances then existing, but only if in light of all the other evidence you remain convinced beyond a reasonable doubt the speed was greater than was reasonable and prudent. Otherwise, you must find the defendant not guilty.

Suggested Jury Charge An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing. Two of those existing circumstances, the speed and speed limit, must first be proven beyond a reasonable doubt. If you have a reasonable doubt about either the speed or the speed limit, you must find the defendant not guilty. If you find both the speed and speed limit proven beyond a reasonable doubt, you may, but are not required, to infer the speed was greater than was reasonable and prudent under the circumstances then existing, but only if in light of all the other evidence you remain convinced beyond a reasonable doubt the speed was greater than was reasonable and prudent. Otherwise, you must find the defendant not guilty. The state must also prove each of the other elements beyond a reasonable doubt before you can find the defendant guilty.

Texas Municipal Courts Education Center Suggested Speeding Instruction Now, therefore, if you believe beyond a reasonable doubt that on the _ __ day of ___ __, 200 , A.D., within the corporate limits of the City of Corinth, Denton County, Texas, the Defendant did operate a motor vehicle upon a public street and highway within the territorial limits of the City of Corinth, to wit; _____________________________, at a speed of _____ miles per hour and said speed being greater than reasonable and prudent under the circumstances then existing, said portion of the public street and highway was then and there zoned by the City of Corinth, an incorporated City, for a speed of not greater than _____ miles per hour, said speed zone being posted with appropriate signs indicating said speed to be the prima facie maximum speed limit, the said defendant not then and there operating an authorized emergency vehicle or police patrol, nor then and there being a physician or ambulance responding to an emergency call, you must find the Defendant guilty and assess a fine of not less than one dollar ($1.00) and not more than two hundred dollars ($200.00). If you do not so believe, or have a reasonable doubt thereof, you will acquit the Defendant and say by your verdict "Not Guilty."

AMENDED JURY CHARGE The law provides that a person commits an offense if that person operates a motor vehicle on a public street or highway at a speed greater than is reasonable or and prudent under the conditions in existence circumstances then existing. Any speed in excess of the zone or posted speed is prima facie evidence that the speed is unreasonable or imprudent. Two of those existing circumstances, the speed and speed limit, must first be proven beyond a reasonable doubt. If you have a reasonable doubt about either the speed or the speed limit, you must find the defendant not guilty. If you find both the speed and speed limit proven beyond a reasonable doubt, you may, but are not required, to infer the speed was greater than was reasonable and prudent under the circumstances then existing, but only if in light of all the other evidence you remain convinced beyond a reasonable doubt the speed was greater than was reasonable and prudent. Otherwise, you must find the defendant Not Guilty. The state must also prove each of the other elements beyond a reasonable doubt before you can find the defendant guilty.

AMENDED JURY CHARGE Now, therefore, if you believe beyond a reasonable doubt that on the _ __ day of ___ __, 200 , A.D., within the corporate limits of the City of Corinth, Denton County, Texas, the Defendant did operate a motor vehicle upon a public street and highway within the territorial limits of the City of Corinth, to wit; _____________________________, at a speed of _____ miles per hour and said speed being greater than reasonable and prudent under the circumstances then existing, said portion of the public street and highway was then and there zoned by the City of Corinth, an incorporated City, for a speed of not greater than _____ miles per hour, said speed zone being posted with appropriate signs indicating said speed to be the prima facie maximum speed limit, and that said speed was greater than reasonable and prudent under the circumstances then existing, and the said defendant not then and there operating an authorized emergency vehicle or police patrol, nor then and there being a physician or ambulance responding to an emergency call, you must find the Defendant guilty and assess a fine of not less than one dollar ($1.00) and not more than two hundred dollars ($200.00). If you do not so believe, or have a reasonable doubt thereof, you will acquit the Defendant and say by your verdict "Not Guilty."

VOIR DIRE

VOIR DIRE Educate on the law

VOIR DIRE Educate on the law Educate as to how speed limits are created and TxDot principles 

VOIR DIRE Educate on the law Educate as to how speed limits are created and TxDot principles  Must get a reasonable and prudent qualified jury 

VOIR DIRE Educate on the law Educate as to how speed limits are created and TxDot principles  Must get a reasonable and prudent qualified jury  Strike for cause if juror cannot acquit under any circumstances when speed is above the limit 

VOIR DIRE Educate on the law Educate as to how speed limits are created and TxDot principles  Must get a reasonable and prudent qualified jury  Strike for cause if juror cannot acquit under any circumstances when speed is above the limit  Ask jurors to give examples of factors that assist in determining whether speed reasonable and prudent

VOIR DIRE Educate on the law Educate as to how speed limits are created and TxDot principles  Must get a reasonable and prudent qualified jury  Strike for cause if juror cannot acquit under any circumstances when speed is above the limit  Ask jurors to give examples of factors that assist in determining whether speed reasonable and prudent

About speed limits Most drivers naturally select a comfortable speed, not too slow or too fast, but one that will get them where they want to go safely and without undue delay. Speed limits are posted primarily to inform motorists of the speed considered reasonable by a majority of drivers on a particular roadway. Motorists, especially those unfamiliar with the road, can use this information to evaluate how they should drive on a particular road. A safer driving environment is established when motorists drive at the same speed. http://www.txdot.gov/government/enforcement/speed- limits.html (last visited August 15, 2018).

THE 85TH PERCENTILE

THE 85TH PERCENTILE Speed checks are conducted to determine the 85th percentile speed. The observed free-flowing speed for vehicles is tallied and the 85th percentile speed is calculated using gathered information. To ensure a true reflection of a normal traffic situation, speed checks are made on average weekdays during off-peak hours, under favorable weather conditions.

THE 85TH PERCENTILE Speed checks are conducted to determine the 85th percentile speed. The observed free-flowing speed for vehicles is tallied and the 85th percentile speed is calculated using gathered information. To ensure a true reflection of a normal traffic situation, speed checks are made on average weekdays during off-peak hours, under favorable weather conditions. There are disadvantages to setting speed limits far below the 85th percentile speed. If reasonable drivers see an unreasonably low speed limit without seeing a need to drive that slowly, they tend to ignore the signs and develop disrespect for speed limits in general.

THE 85TH PERCENTILE Speed checks are conducted to determine the 85th percentile speed. The observed free-flowing speed for vehicles is tallied and the 85th percentile speed is calculated using gathered information. To ensure a true reflection of a normal traffic situation, speed checks are made on average weekdays during off-peak hours, under favorable weather conditions. There are disadvantages to setting speed limits far below the 85th percentile speed. If reasonable drivers see an unreasonably low speed limit without seeing a need to drive that slowly, they tend to ignore the signs and develop disrespect for speed limits in general. When a speed limit is set below the 85th percentile, law enforcement officials must deal reasonable people being ticketed for exceeding the posted speed limit as well as motorists who drive too fast. https://www.txdot.gov/government/enforcement/speed- limits/studies.html (last visited August 15, 2018).

THE 85TH PERCENTILE Speed checks are conducted to determine the 85th percentile speed. The observed free-flowing speed for vehicles is tallied and the 85th percentile speed is calculated using gathered information. To ensure a true reflection of a normal traffic situation, speed checks are made on average weekdays during off-peak hours, under favorable weather conditions. There are disadvantages to setting speed limits far below the 85th percentile speed. If reasonable drivers see an unreasonably low speed limit without seeing a need to drive that slowly, they tend to ignore the signs and develop disrespect for speed limits in general. When a speed limit is set below the 85th percentile, law enforcement officials must deal reasonable people being ticketed for exceeding the posted speed limit as well as motorists who drive too fast. The Term Speed Limit is a Misnomer. There is no per se Limit, https://www.txdot.gov/government/enforcement/speed- limits/studies.html (last visited August 15, 2018).

THE 85TH PERCENTILE Speed checks are conducted to determine the 85th percentile speed. The observed free-flowing speed for vehicles is tallied and the 85th percentile speed is calculated using gathered information. To ensure a true reflection of a normal traffic situation, speed checks are made on average weekdays during off-peak hours, under favorable weather conditions. There are disadvantages to setting speed limits far below the 85th percentile speed. If reasonable drivers see an unreasonably low speed limit without seeing a need to drive that slowly, they tend to ignore the signs and develop disrespect for speed limits in general. When a speed limit is set below the 85th percentile, law enforcement officials must deal reasonable people being ticketed for exceeding the posted speed limit as well as motorists who drive too fast. The Term Speed Limit is a Misnomer. There is no per se Limit, https://www.txdot.gov/government/enforcement/speed- limits/studies.html (last visited August 15, 2018).

Going with the flow DEFENSE

Going with the flow DEFENSE All GOING 70, SIGN SAYS 60 What is prudent course of action? What is most reasonable? What is most dangerous? WHAT IS SAFEST SPEED?

Going with the flow DEFENSE All GOING 70, SIGN SAYS 60 What is prudent course of action? What is most reasonable? What is most dangerous? WHAT IS SAFEST SPEED? ARGUMENT - THE 85TH PERCENTILE HAS SHIFTED

Going with the flow DEFENSE All GOING 70, SIGN SAYS 60 What is prudent course of action? What is most reasonable? What is most dangerous? WHAT IS SAFEST SPEED? ARGUMENT - THE 85TH PERCENTILE HAS SHIFTED When the flow of traffic is exceeding the posted speed limit, it simply means the 85th percentile has shifted to a higher speed at that particular time under those particular circumstances. This is the then reasonable and prudent speed.

CLARION CALL

Preserve error and let’s make some law CLARION CALL Preserve error and let’s make some law

CONTACT ME Robert W. Eutsler Houston, TX Email: robeutsler@gmail.com www.TheTicketAttorney.com