Judge Calvert Sentences Mr. Bates

From the transcript, this is the sentencing comment made by Judge Calvert at my "Reckless Driving" trial last August.


I’m sympathetic to the defendant’s blight. In fact, what he was doing was in many ways very admirable, trying to get a job, exercising every means at his disposal to try to regain gainful employment, and utilizing the resources that he had available to him at the time to provide that he had available to him at the time to provide for his own needs without relying upon other people. And so in many respects his conduct’s admirable. And in many respects, it’s lawful. As the parties were arguing and even some of the evidence earlier, trying to think of an example that might apply and I don’t know that this is a good example, but this is the one that came to mind, is that it’s not unlawful for a boy to swing a bat. In fact, it’s good for them, it’s good exercise, it’s good for them to participate in athletics and be in team sports and things of that nature.

But there are times when swinging a bat can become more dangerous, get into a crowded room or you get into circumstances, the swinging of the bat circumstances can change in such a way that if you put other people at peril even if you’re not at risk of being hurt, they might be injured by the way that you’re doing something that otherwise is completely lawful.

And there are times when it can even go beyond that where it’s reckless to where it could even be construed as knowing that there’s a high likelihood that somebody would get hurt if you continue that type of behavior and at some point, some people can infer by your conduct that you’re intentionally putting other people at risk, so that you could be accused of assault and even at times aggravated assault with a deadly weapon with a piece of wood that otherwise completely lawful to be utilizing. So there’s a spectrum there that has to be taken into consideration. And there needs to be good judgement utilized by people not only with regard to their own safety but to the safety of others. And you may be right. It may have been safer for you under some circumstances to ride in the middle of the roadway, but that doesn’t mean that it doesn’t create a hazard for other people at times. And it may even jeopardize your own safety under certain circumstances. You have to take into consideration the safety of other persons and their property under those circumstances.

In this case, according to a note that was left by the clerk, the court costs, due to the subpoenas that were issued, are in the neighborhood of $512.10. It will be the judgement of the Court 13 days in jail, a $100 fine plus the court costs and give him credit for time served. Five extra days will be applied to the balance of the fines and court costs reducing the total by $500. Any remaining balance will be due to be paid.

The Judge Makes His Ruling

This is the comments made by Judge Calvert at the conclusion of my trial.


A. GENE CALVERT, JR. : The defendant certainly has a right to operate a bicycle on a roadway. There are some restrictions upon the operation of a bicycle. There’s certainly roadways where it’s not permissible at all even if you’re operating on a permissible roadway, it has to be done in a safe manner.

The question in this case is whether or not your conduct on the date and time in question should be considered reckless. The fact that you were able to safely navigate the roadways on prior occasions, as your attorney pointed out, is not really relevant. Times and conditions and circumstances of the operation of a vehicle change. Circumstances change with patterns of traffic, visibility, numerous other conditions.

On the occasion in question, taken into account the totality of the circumstances that have been testified here today, there was a high degree of concern with regard to the way that you were operating the motor vehicle -- I’m sorry -- the bicycle in the presence of motor vehicles. And as such, officers were dispatched to your location to discuss their concerns with you and you disregarded their instructions and their request and commenced to return to operate your bicycle on the roadway.

It appeared to be at least in the center of the roadway and at times, maybe even be closer to the center stripe for a portion of that time. I’m sympathetic with the fact that there’s not designated biking lanes on enough of our roadways to accommodate a bicycle traveler. It would certainly do a lot to relieve a lot of the concerns we have regarding numerous issues including, physical health, obesity, and consumption of oil and petroleum products. However, that’s not really part of the decision I’m making today.

Even though it may have been permissible for you to be in the right lane of traffic, operating the motor vehicle or your bicycle in the presence of motor vehicles, at this particular occasion, you were presenting a hazard to other vehicles. And you may not have been aware of it up until that point, but once the officers made you aware of the concerns that have been reported and the numerous calls that had been made regarding the circumstances on that day, for to you disregard that warning and return back into that same state of operating your bicycle in the presence of motor vehicles on that roadway on that day it constituted willful or wanton disregard for the safety of persons or property.

And so based on that, I am going to find you guilty of reckless driving.

Ms. Barnes Closing Rebuttal

This is Ms. Barnes’ rebuttal to Mr. Jones’s closing statement.

Thank you, Judge. I think we’ve established through testimony that he has the right to ride his bicycle on the roadway. I don’t think we’re contesting that. I’m certainly not contesting that the roadway is 12 feet as Mr. Bates, I guess, measured it, your honor. But we’re here today because a bicyclist on a roadway is not only afforded the same rights as any other vehicle, but he is also held accountable for the duties that he is responsible for. And he’s responsible for driving in a manner or riding a bicycle in a manner that is not reckless and that’s exactly why we’re here. Recklessness, according to caselaw, reckless driving means a deliberate and conscience indifference to the safety of others.

And the Court can infer based upon the testimony and the evidence presented that, that’s exactly what happened here. He’s been warned and he’s admitted on the stand when Officer Zapata said, for your own safety, sir, for the safety of other people, please don’t get back on the roadway. And he walked off and then before he could open up the door to get in his car, he sees that he goes right back on the roadway, right back on it.

His actions, his actions show nothing but a deliberate and conscience indifference. And we are here today because of that. Nobody says he doesn’t have a right to be on the roadway, but he got on the roadway at a time and manner in which his action of being on the roadway was reckless and he disregarded the safety of others and he disregarded the safety of himself and he continued to do it. And I ask that you hold him responsible, Judge. Hold him accountable.

Mr. Jones Closing Argument

I am pleased to share with you the closing argument of my attorney, Mr. Jones.


May it please the Court. I know it’s a little outmoded. When I was in law school we had a saying, the law is the law. And that’s our case in a nutshell. Except as provided in subsection B, a person operating motor vehicle, the exceptions are plain, less than, a lane that’s less than 14 feet in width and does not have a designated bike lane adjacent to that lane.

Evidence is uncontradicted, 12 feet, not 14; therefore, he had the right. Actually he had the duty, legally, to be in that lane of traffic; or, too narrow for a bicycle and a motor vehicle to safely travel side-by-side. Again the evidence is uncontradicted. It’s not safe if he stays over to the right hand side. His statement – really the police officers didn’t testify to the contrary. I doubt that they would if they had been asked. The base fact is 551.103 says he has to operate that in that lane of traffic. It is true that the statute, the shoulder statute says that he has an or option. But he explained to the Court why he does not do so.

Rumble strips are put there for a reason because cars drift off to that side when drivers lose their attention. He didn’t go out there with any intention to slow people down. And he certainly didn’t go out there with any intention to draw an accident. In fact, in all of this time riding on this highway, he’s never seen an accident occur. So it can hardly be called reckless indifference or some kind of wonton disregard when his common experience is that there is no such accident. I submit to the court that it is simply a matter of law.

Ms. Barnes Closing Statement

I have in my hands the transcript of my "reckless driving" trial of August 17 last year. I hope to have the entire transcript digitized shortly.

Here is the closing argument made by Ms. Christin Barnes, Assistant County and District Attorney.


Thank you. Judge, like I stated in my opening statement, we were here we are here to hold Mr. Bates accountable for his actions and his choice. And as he stated in his own testimony, the limitations under the statute don’t apply to a bicycle in terms of riding or driving on an improved shoulder. He has access to that improved shoulder. And we’re talking about someone making a choice, a deliberate choice, when the improved shoulder is available, to instead, ride on the main road of traffic on a very heavy trafficked highway.

He has been asked, told, by officers on several occasions, do not ride in the middle of the roadway. And there’s a reason for that. And that reason is that it is dangerous. That is common sense. It is dangerous, not just for himself, but for the other motorists on the roadway. And because the officers repeatedly told him, Mr. Bates, don’t get back on the road, he made a very conscious and deliberate disregard or indifference for the safety of those around him.

It is common sense that when a bicyclist rides on a roadway in the middle of a very heavy lane of traffic at night time, it is common sense that harder to see a bicyclist. It is common sense that he is riding at a speed very well below the speed limit. It is common sense, as the video showed, so many vehicles traveling adjacent or aside to him at a speed that was high rate of 65 miles an hour or above, and yet he thinks it’s safe for him to just continue to do what he does.

We know from the testimony from Lonnie Creager, who’s an Ennis firefighter, that he witnessed, and the reason for his call to 911, is that he witnessed Mr. Bates riding on his bicycle. Before he saw that bicycle, he saw vehicles, including an eighteen-wheeler, make an abrupt stop. And his testimony was it was scary what he saw. And as he made his way around the eighteen-wheeler, he saw right in front of it, Mr. Bates in the middle of the roadway traveling and that eighteen-wheeler had to come to an abrupt stop to avoid colliding with him, to avoid swerving from him, to avoid having an accident.

His action, for the sake of principle to ride in the middle of this roadway when he could easily choose the improved shoulder to travel, is nothing but downright dangerous. And the warnings and the pleadings and the requests and the orders from police officers for his safety and for the safety of others have been disregarded by Mr. Bates, completely and totally disregarded.

So I ask that you find him guilty based upon the evidence that has been submitted to the court because he has, he has driven recklessly. And as I stated in the opening statement, Your Honor, a bicycle is considered a vehicle. And it is defined under the Transportation Code as a device in or by which a person or property is or may be transported or drawn on a public highway other than a device used exclusively on stationary rails or tracks. And it falls within that definition of a vehicle, Your Honor. And reckless driving statute does not say, specifically, it applies to a motor vehicle, but to a vehicle which includes a Bicycle.

And in this case, I think it’s imperative that we’re here today in front of this Court because we want to protect our citizens in our community. And whether Mr. Bates recognizes it or not or wants it or not, we’re going to try to protect him. The evidence shows beyond a reasonable doubt that he did drive in a reckless manner and he did show a conscious indifference and he did make a choice that was deliberate and I ask that you find him guilty.

More Ennis Peril

The city of Ennis has informed me that they are going to move ahead and prosecute me for the March 2010 arrest.

A preliminary hearing is scheduled to take place on February 24. So far the charge remains "Failure to Keep Right". I anticipate the charge to be changed before too long.

From Waco to Eastland

I spoke to my attorney about my case last week.

My appeal has been moved from Waco to the Eleventh Court of Appeals in Eastland Texas. The reason is to balance the workload among the various courts.

This is a blessing for our cause. Eastland is 130 miles east of Dallas, which makes the journey to the courthouse less arduous for me. But more significantly, Eastland has a reputation for being more conservative than other appeals courts.

Neither our legal team nor the State have filed any briefs on this case, but that will change soon. There is no date set yet for the trial either, but it is expected to be put on the courts calendar somewhere between July and September.

Lastly, the transcript of the trial will be in our hands soon, and I will be able to share parts of it with you.

Sometimes Motorists Do the Darndest Things

After writing my friends phone number on my left arm*, I had to deal with one of the complications that my bicycle set-up causes. With the unusually heavy snowfall in the local region, I had a little trouble getting onto the road that attaches to my driveway so I could resume impeding traffic.

I have chosen to equip both of my bicycles with a speedplay pedal and cleat system. One of the characteristic features of this system is that it is intolerant of mud, packed snow, ice, sand and gravel. These pedals are a particularly poor choice for the cyclocross crowd.

Now, when I chose them, I could think of no reason to have to walk in them- certainly not once I got underway! Ah, yes, those were the days!

With the wet season in full force, I normally have negotiate 200 feet across the lawn from the door to the driveway that is mud, muddy and swampy. I have an old set of sneakers that have the singular purpose of delivering me with dry feet onto my driveway. Whereupon I remove them and put on my cycling shoes, and they await my return.

Today, (Friday February 12) however, I faced a 50 yard walk in twelve inches of snow. This was the heavy wet kind you Yankees seem so familiar with, not the dry blowsy kind that passes before the residents up in Montana and Wyoming while on it’s way to Nebraska. If I wore those faithful sneakers, I would have to take a towel to dry my feet before donning socks and cycling shoes. All the while standing on one foot, perhaps on the roadway. Yes, it would’ve been ugly.

So I slogged out to the streets with these boots on. Switched shoes and I was on my way. Oh, and I put the boots in a plastic bag to protect them from automobile spray.

This is a trade-off for my style of cycling. I find it acceptable.

Why I want to town

Today I viewed the Ennis Police stop dash cam videos and some of the audio that was recorded on them. (today = Friday February 12)

I’m glad I did. I found that my demeanor was not nearly as combative as I had feared. My contemporaneous recollections of our conversations are more accurate than I thought they were. I was striving for accuracy in all of my descriptions of the events and so I am pleased.

When Officer Watson stopped me in town, on October first, I saw that I had forgotten part of it. While Officer Watson and Sgt. Pillow discussed the ins and outs on impeding traffic, I was looking for identifying marks on the police car to write down, pen and paper in hand. Suddenly you can see a light go on in my head as I remember that I have my camera with me! And even with me looking the police car over so carefully, I never did notice Sgt. Pillow!

Yosemite Sam

One aspect of the dash cam footage that interested me was how soon I could be observed from traffic coming up behind me.

So when Officer Hudson comes up on me, on the dash cam there is no me to be seen! There is this old pickup protectively trailing behind me with his hazards on! Yikes!

It’s the fella who was hopping up and down, warning me that the long arm of the law would soon put an end to my scofflaw ways, or something similar.

Now, in my opinion, he did something incredibly dangerous and stupid!

Part of what makes a bicycle driver safe from being “runned over” is our distinctive silhouette. Everyone who sees it knows instantaneously that the cyclist is moving at a “slow speed”. I operate in the most annoying lane position I can precisely so that I will be seen and identified as a slow moving driver at the earliest possible instant. I want to afford the motorist the maximum time to access his options, decide early to merge, and go around me. In the vast majority of the time, motorists flow around the slow vehicle without hesitation and without the slightest of delays.

But for a distracted driver, making a quick scan ahead every four or five seconds, they rarely notice that they are quickly closing the gap between them and a slow vehicle when the slow vehicle is an automobile. In a quick glance, our minds assume the automobile is proceeding down the road at approximately the same speed we are. We have been trained for that by endless repetition.

Thus, I believe this “good Samaritan” was in grave peril, just as he felt about me.

Keri Nailed It

“The culture of speed causes some police to enforce traffic flow vs safety. Worse, they often don’t even realize that their concepts of protecting safety are stealthy manifestations of traffic flow management. (i.e. the notion that speed differentials and lane changes cause safety problems resulting from the presence of a slow vehicle rather than the incompetent or aggressive behavior of faster drivers)”

The language and concepts Officer Hudson spoke to me about precisely reflects this idea that the problem is my presence, not the competency of the motorists. I believe he was genuinely concerned about my safety. But while he had watched me drive by him earlier that day on Hwy 287, he failed to observe how traffic operated around me.

He said many 911 callers said there were many close calls and near wrecks. Did he observe any? It doesn’t matter, these reports validated his bias of how the situation would play out.

Perhaps he will watch how fast traffic behaves around an obviously slow moving driver tonight. Perhaps he will listen enough to hear why traffic behaves as it does.




*You can thank SteveA for the precise description.

Ellis County Demands a Public Showdown

Hello, dear Reader.

I received a dispatch today here at my bunker.

The authorities at the Ellis county jail last month released me with instructions to contact Judge Polk in Waxahachie for a court date.

His long-suffering clerk will be glad that I will no longer be pestering her about it. It is now evident that my charges were forwarded to a different court. I’m glad they let me know!

My case has been forwarded to Ellis county’s precinct 1, in Ennis. It will be heard or overseen by Justice of the Peace Bill Woody. (ChipSeal wonders if he voted for him…)

The dispatch is notification that a pre-trial conference will be held February 25, and that all motions must be filed seven days prior to the conference. (No motion will be entertained beyond February 25th.)

They have again changed the charges leveled at me. I am now required to defend myself from the scurrilous charge of “obstructing traffic”. I am thinking of filing a motion for a pledge from the prosecution to not change the charge again!

I still do not know the name of my accuser. (Motion 1) I do not yet know what law they think I am in violation of. (Motion 2) Did the deputy actually see me obstruct traffic? I don’t think so. (Motion 3 for dash-cam footage) What exactly was said by both me and him? (Motion 4 for audio captured by the deputy.) What did my arrest file say? What did the Deputy claim in his arrest statement? (Motion 5 for my arrest report.)

Empty Threats

I have been sternly warned that if I fail to show up for the pre-trial conference, that my driver’s license could be denied when I try to get it renewed. I guess that will be after I get one in the first place.

Let’s work through how this works, shall we? They arrest me for using a bicycle rather than an automobile to get around. Now, to compel me to submit to the judicial process, they threaten to cause me to get around on a bicycle!

Alternately, I could have a warrant for my arrest issued against me. Huh. That seems rather formal to me, seeing how they will arrest me for simply traveling on the public road!

The judicial system in this county seems particularly ill prepared to deal with bicycle issues.



Unusual Plea-bargain Proposed

I look forward to the pre-trial conference. I think that I will consider a plea bargain. If the prosecutor apologizes for violating my right to travel on the roadway in writing, I won’t insist on a public trial. Yeah, something like that.

In another forum, a commenter who claims to be a lawman, made this statement regarding this arrest; “I feel this rider attempted to be excessive in his interpretation of his individual rights to the extent that it impeaded [sic] on the rights of others.” He therefore approves of my arrest.

I either have the right to travel on the roadway or I do not. It is a right expressly granted to operators of bicycles in Sec. 551.101. What statute removes it?

What right do motorists possess that I infringed? Do drivers have the right to proceed at the speed limit? Did I prevent any driver from proceeding down the road? No, it was me who was prevented from traveling home.

Which Will Prevail? Cultural Bias or the Law?

This is the perfect expression of the windshield view of the world. No slow moving traffic allowed! Traffic flow tramples everything in it’s way- even express statutory rights.
The letter from Justice Woody’s clerk reeks of it.

The ever changing charges betray a frantic search for a statute to justify their point of view, rather than seeking to find what the law actually says- which is their sworn duty to enforce.
No, this is far more important to me than it is for them. I want a public trial. The law is clear, and I was acting lawfully.

Their windshield view is also clear to all who wish to see it. Inconveniently, it is contrary to Texas law. Nonetheless, their view may prevail. The culture of speed is pervasive in our society.
It will be a public spectacle in either event.

The stakes are high for both sides of this issue. Do they decide the case based on the law, or do they substitute their notion of what the law ought to be “had the legislators thought about it” instead? Dare they display their willingness to override the law in favor of their prejudice in a public forum?

They need not worry that I won’t show up.

I want a public trial.

Sincerely, ChipSeal AKA The Menace of Ennis

Court Date

The mail has come.

The three violations have been combined, and jury selection will be done on the evening of February 16, 2010. A Tuesday.

The following day will be independence day.

I am submitting motions for the disclosure of dashcam video and some 911 information.

I have yet to secure a court date for my Ellis County arrest. The court where I have been ordered to appear has not yet found a record of my violation. That is a fact, anything else is speculation.

All the above will consume much of my attention, but as SteveA pointed out, it is more important to me than it is for them.

A letter came in the mail.

It said: Re: State of Texas v. ChipSeal (Poetic license, don’t ya know!)

Hmm. It’s me against the entire state of Texas? I think I could be a contender to get the Nobel prize for being the most annoying cyclist, don’t you?

It went on: Dear Mr. ChipSeal, The offense of impeding traffic is defined at Section 545.363 of the Texas Transportation Code. Sincerely, Toby Mash, City Attorney for Ennis Texas.

Well, certainty! Now with a fixed charge, I can defend myself!*

How this came about

In my narrative A Tale of Two Jails, a judge (Who it turns out is Municipal Judge Johnson) released me with the promise that we would meet in the next week. He spent nearly a half-hour with me.

He said he was interested in hearing a defense for cyclist’s use of the highways.

He is very idealistic of juries, and spoke of them as being a forum of “equity” for the community. He encouraged me to choose a jury trial.

He said at this judicial level, it was reasonable for me to represent myself, and that a wider latitude of conduct would be extended to someone who did so.

He answered many of my process questions, including how to submit a motion to the court.

I was surprised when he suggested that I speak to Mr. Mash about it. So I did.

I went to Mr. Mash’s office and walked in unannounced. I expected that I would need to make an appointment. To my surprise, Mr. Mash dropped all that he was doing and immediately sat down with me for about twenty minutes.

He too was helpful with my process questions, and enlightened me on some of the bureaucratic details of how this whole thing goes down.

Jury trials

Should I choose a jury trial, 24 Ennis residents will be assembled on a Wednesday evening. Both Mr. Mash and I would be able to ask questions of them under the watchful eye of Judge Johnson, and both Mr. Mash and I would each be able to disallow six of them without reason. The goal will be to empanel six jurors before it becomes so late that we annoy them. (That part worries me. I seem to be extraordinarily annoying!)

I find this task daunting. Both judge Johnson and Mr. Mash advised me to bone up on Texas Jury Selection rules. I will also be required to pay a fee to cover some of the cost of empanelling the jury. (Mailings and the like.)

Separate trials?

Mr. Mash said I could file a motion to combine my charges into one trial. I am inclined to do so. The three Ennis City violations are essentially the same, and if I prevailed on one charge tried separately, the remaining two would be dropped.

If they are combined, I will have the opportunity to question all of the officers involved.

On filing motions

A motion is submitted in writing to the court clerk, and if granted by the Judge, is sent on to Mr. Mash’s desk. (What? No internet submissions?**)

Mr. Mash said that when the motions begin hitting his desk, he then proceeds to see if a case can be made, usually by interviewing the arresting officers.

I asked about getting information about what particular law I am accused of breaking, rather than the vague description of “impeding traffic”.

He said that the formal charge, including the section of the law, is normally sent to the accused ten days prior to his trial, but a motion could be submitted for an earlier release.

Since I had on my person a written out motion for that very purpose, I asked him to look at it to see if it was what the court expected in a motion presented to it.

Because Eli Damon was so good as to include his lawyers motion in his discussion of his case, I adapted it for my purpose. The paper Mr. Mash saw said this:

Motion for disclosure of statutory relevance.

Your Honor, I do not yet know what statute I am being accused of violating. My ticket only says “impeding traffic”. There is no reference to any chapter or section of the Texas Transportation Code, or any other law other than this vague description of violation.

I am certain I was operating my vehicle lawfully under the bicycle specific rules found in chapter 551. Operation Of Bicycles, Mopeds, and Play Vehicles. I am very familiar with those statutes. Therefore, my accuser must have some other, undisclosed and unknown to me portion of the law in mind to have so accused me.

Would the court order the prosecution to disclose the statute under which I am accused? Without such information I am unsure as to how to defend myself.

With that as an example before him, I asked about filing a motion to see relevant dashcam video. He told me to be as specific as possible in my request, and that generally I would be able to see the video but not have a copy. Because I found Eli Damon's motion so helpful, I intend, once this whole thing is done, to publish the motions I submit to the court, and any other helpful things I come across.

He then returned my motion to me. Thus this letter of disclosure to me was a happy suprise.



*Sec. 545.363. MINIMUM SPEED REGULATIONS. (a) An operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.

**Submitting a motion electronically is impossible, because by doing so it changes into an e-motion! Why am I the only one who laughs at my jokes?