When Clueless Cops and Prosecutors Ruined Their Own Case

[00:00:02][music] >> Welcome to Audit the Court, where we examine the legal complexities that emerge from trials, hearings, and court proceedings. Today's episode returns us to the Harris County Criminal Court in Houston, Texas, where Judge David Fleischer has become known for holding the state to its evidentiary burden at the earliest stage of a criminal case.

[00:00:23]In this episode, we review three probable cause hearings, each turning on whether the facts provided in the officer's report were sufficient to support the government's allegations.

[00:00:33]Let's dive right into our first case. On December 28th, 2024, defendant Jerry Allen was arrested and charged with driving while intoxicated, which was his second DWI charge following a prior conviction from 1992. The case came before Judge Fleischer for a probable cause hearing on January 3rd, 2025.

[00:00:51]>> Sir, you're charged with driving while intoxicated, second offense. You're facing up to a year in jail and a $4,000 fine. We are going to do probable cause.

[00:00:58]You have the right to remain silent.

[00:01:02]Hey.

[00:01:04]Señor.

[00:01:05]Pat off.

[00:01:09]We're going to do probable cause. You have the right to remain silent.

[00:01:12]Anything you say can and will be used against you. You have the right to have an attorney present. If you cannot afford one, one will be appointed to you, sir.

[00:01:18]>> Yes, sir.

[00:01:18]>> Okay.

[00:01:19]>> On December 28th, 2024, the officer came to a stop behind the defendant's vehicle and the light turned green and the defendant's motor vehicle proceeded and the defendant's vehicle immediately drifted approximately halfway onto the shoulder with other motor vehicles around it before the driver jerked back into the lane. Traffic stop was then initiated and the officer made contact with the defendant, the driver, and so officer got him out of the vehicle. The officer observed slurred speech, bloodshot eyes, unsteadiness on feet, and odor of alcoholic beverage. The defendant admitted to consuming one alcoholic beverage and standardized field sobriety tests were administered.

[00:01:50]HGN six out of six. The walk and turn one leg stand could not be performed due to the defendant complaining of leg pain. The defendant was read the DIC and consented to a breath. The result was 0.192.

[00:02:02]However, the defendant was unable to provide a second sample and consented to a blood draw.

[00:02:07]>> Mr. Allen, I'm going to find that there's probable cause to go forward with your case.

[00:02:12]Does he have a license?

[00:02:13]>> a lawyer on it.

[00:02:14]>> All right. How many prior DWIs does he have?

[00:02:16]>> He has one prior, your honor. One.

[00:02:17]>> Okay. Mr. Allen, I'm going to find that there's probable cause to go forward with your case and I'm ordering you as a condition of your bond not to consume alcohol, illegal drugs, or unprescribed controlled medication. You have a valid license.

[00:02:30]You don't You cannot drive unless you also have valid liability insurance in your name and I'm now placing a restriction on your license that you are not allowed to drive any vehicle that doesn't have an ignition interlock on it. If you're caught driving a vehicle that doesn't have an interlock, I will revoke your bond, put you in jail. Do you understand?

[00:02:49]I'm sending word and notice to DPNS so that every police officer in the state is going to know if you get pulled over and you're driving a vehicle that doesn't have an interlock, they're going to arrest you on the spot. Do you understand?

[00:03:02]I see that you have a lawyer. Because you have a lawyer, I will waive your appearance, but you must stay in touch with Mr. Stewart and he will tell you when you have to come back to court. You don't have to waste your time coming back here, but you must stay in touch with counsel and he'll tell you when you have to come back.

[00:03:15]Do you understand?

[00:03:16]>> So, I'm I need to wait for him now?

[00:03:18]>> We're going to have you wait for him now, but after today, I'm going to waive your appearance so you don't have to waste your time. We'll just have you work and do your life while we get evidence while he gets evidence to uh work the case up.

[00:03:30]Right. We'll just I'm going to have you sign a reset. I'll have you meet with Felicia for bond conditions and we'll just have you waiting back for Mr. Stewart to show. Okay?

[00:03:37]Please.

[00:03:38]>> Right this way.

[00:03:38]>> Ready?

[00:03:39]>> Yes.

[00:03:40]>> Come on up.

[00:03:40]>> Morning, your honor.

[00:03:41]>> Hey, how's it going? Mr. Stewart, what's new?

[00:03:43]>> Your honor, how was your day?

[00:03:44]>> Great.

[00:03:45]Uh we did PC on your case.

[00:03:47]>> Okay.

[00:03:48]>> Uh we just did standard What's your guys' name again?

[00:03:50]>> My last name is Allen, your Honor.

[00:03:53]I would like to make an argument on this PC. I don't know whether it's allowed.

[00:03:56]>> Absolutely. I'm always ready to hear it.

[00:03:57]So, refresh my memory, what happened?

[00:04:00]>> So, in Allen's case, it was where the officer came to a stop behind the defendant's vehicle and the light turned green. The defendant >> had expired registration, right?

[00:04:08]>> Uh No, Your Honor. [clears throat] In this case, the defendant's vehicle proceeded through the green light and immediately drifted approximately halfway onto the shoulder with other vehicles around it and then jerked back into the lane.

[00:04:20]>> Did you Were Were there any other vehicles around when this happened?

[00:04:23]>> Yes, the officer explicitly wrote there are other vehicles around the vehicle before the the driver jerked back into the lane. So, he went into the shoulder with and there are other vehicles.

[00:04:34]>> But >> Yes, sir.

[00:04:36]My argument is, Your Honor, that, you know, as far as what's actually alleged, says the light turned green and the truck along with several other vehicles proceeded, which obviously is in compliance with the law. Um the only argument that the state has made here, elucidated, um is that they observed the Silverado drift into the shoulder with other vehicles around it. If he's drifting into the shoulder, that's not endangering any other vehicle. That's not an allegation of, you know, the safety [snorts] of anybody else out there on the roadway. The shoulder is away from any other vehicles. Maybe he's doing this in an abundance of caution.

[00:05:08]There's no indication that it was and was dangerous or endangered any other vehicle, anything like that within the allegations here.

[00:05:15]Um furthermore, there's numerous reasons why a vehicle is 100% legally allowed to drive in the right-hand shoulder of a vehicle. I think there's nine uh reasons in the state of Texas why a vehicle is allowed to drive in a shoulder. Um there's nothing here that alleges that, basically, he committed any sort of crime that would lead the officer to then stop it. This is insufficient information. And I would argue that there's not valid probable cause here on this case.

[00:05:40]>> I think he has a valid point where, you know, perhaps he's Well, [clears throat] Well, we I don't want to speculate. Like, and you're saying, "Well, he's maybe he did it because of this that." But, >> Right.

[00:05:51]>> I I I I don't want to speculate.

[00:05:52]>> Right.

[00:05:53]>> Because, were there other cars? I don't know. Was it dangerous? I don't know. I mean, >> Of course, Judge, but failure to maintain a single lane when there are other vehicles within the vicinity is a valid reason for a stop.

[00:06:03]>> Right, but you got to articulate facts as well, right? So, according to the statute, >> Right, and I understand cuz we've had this issue before where it's failure to maintain a single lane, but we're unsure if there's other vehicles. That I can appreciate and understand. But, in this case, the officer did specify that there were other vehicles in the vicinity.

[00:06:20]And under Texas law, that is sufficient for a stop.

[00:06:24]>> I disagree. I I think that when we look at the statute for failure to maintain a single lane, the second half of the statute is that it endangered somebody.

[00:06:32]And there's no indication here that there was any danger.

[00:06:34]>> It's was 545.060, what is that?

[00:06:41]20 Yeah, let me pardon.

[00:06:44]545.060, you got it?

[00:06:47]Section A2, may not move from the lane unless that movement can be made safely.

[00:06:51]Shall drive as nearly as practically practical entirely within a single lane, and two, may not move from the lane unless that movement can be made safely.

[00:06:59]There's no allegation here that the movement was made unsafely.

[00:07:02]>> I also have the list of, you know, where under Texas law where it's permissible to drive on the shoulder.

[00:07:07]Um, to stop, to enter park, to accelerate before entering the main lane of traffic, to decelerate.

[00:07:12]>> Let's Let's do this. I mean, this is going to take quite a bit of more time.

[00:07:15]So, can we Can you come back? Do you have anywhere else to go? Let me Can I blow Let me go through the arraignments, get everybody done and out of here, and then I'll cuz this is going to take quite a bit more time.

[00:07:25]>> Yes, sir.

[00:07:25]>> Right? Give you time to take a look more so, if you need to. You two as well, if you want to find try to find any case law. Let me just go through cuz I have another lawyer that's waiting, you know.

[00:07:34]>> Absolutely.

[00:07:35]>> Yeah, I'll help you out, but let me blow get through everything. Yeah, appreciate it.

[00:07:39]>> If we may, Potter being a law. So, as we've discussed before, so he did veer into the shoulder and then go back onto the lane. And in Harden, failing to maintain a single lane with the added vehicle component is the danger that they provided in the case law that makes failing to maintain a single lane, you know, uh, unlawful. Furthermore, in cases such as Landing and Martinez, the court added additional factors to consider for the officer into determine whether or not failing to maintain maintain a single lane is unlawful. And one of those is the time component. In Martinez, it was at midnight or at 1:00 in the morning. Here it was midnight as well.

[00:08:14]>> No, but one of the things is there's an element of unsafetyness, right?

[00:08:18]>> And and your honor, there are other vehicles around as the officer articulated shh, in the dims. There are other vehicles around when he veered and then jerked back into the lane as the officer put in the dims.

[00:08:28]>> But I get it.

[00:08:30]>> And then >> But where are the other vehicles? Are they next to him? Are they in front? Are they in back? He doesn't articulate it.

[00:08:35]All he says is there are other vehicles.

[00:08:37]>> And furthermore, your honor, he when he did articulate into the shoulder, and upon looking at the statute for that, the court of appeals in Lothrop v. State articulated that there are seven permissible reasons to go onto the shoulder, and there is reasonable suspicion to perform a traffic stop where there is not one of those permissible reasons. And here, uh, the officer did not, uh, with those, uh, other vehicles saying he passed the green light and then go halfway into the shoulder and then jerk back, it implies that there was not one of those seven reasons to allow another car to pass, to stop or park, or to accelerate before entering the mainland traffic, or decelerate before making a right turn. None of those are present.

[00:09:19]None of the seven reasons articulated in the statute on the transportation code 545.058 are present. So, that alone, him going into the shoulder with without a permissible reason, is enough to perform the traffic stop. And that taking that into account with Harden, where he veered out of it, he failed to maintain a single lane with other vehicles around, provided enough of a community danger to allow the officer to perform that initial stop.

[00:09:42]>> May I Where's the danger?

[00:09:44]>> It would be the other vehicles present, Your Honor.

[00:09:46]>> He doesn't articulate that, though.

[00:09:48]>> He does articulate that there are other vehicles.

[00:09:50]>> All he says is there are other vehicles.

[00:09:52]>> That is all the case law requires. He doesn't have to say there's a vehicle right in front and right next to him.

[00:09:56]The case law requires that there be other vehicles within the vicinity for it to be >> Right. In the case law >> You don't know if it's in the vicinity, though. All he says is there are other vehicles. That's so vague. You say other vehicles in the vicinity.

[00:10:10]He doesn't say that they're in the vicinity. He just says there are other vehicles, and that's so vague and conclusory.

[00:10:16]>> Okay. Your Honor, the case law does specify that only needs to be a minimal level of justification for the stop. In this case, that is enough where there's other vehicles around to provide that additional threshold for a failure to maintain a single lane in addition to no permissible reason to enter the shoulder. There there's nothing there to indicate there is a permissible reason.

[00:10:33]>> If we're taking outside of the failure to maintain a single lane, then we can go into the other transport part of the transportation code that this defendant violated, which is veering onto the shoulder. He did not do so for one of the seven permissible reasons, and thus the officer has reasonable suspicion to stop him.

[00:10:47]>> You're veering.

[00:10:48]That is 545.060, right?

[00:10:52]Isn't that part of your Isn't that your That's the weaving, right?

[00:10:56]>> That's a different one.

[00:10:57]>> Because you just said that's there's another another violation of the transportation code.

[00:11:02]>> Yeah, and there And it's under 545.058 is for entering the shoulder.

[00:11:08]May I address the court, please, Your Honor?

[00:11:09]>> Hold on. Let me pull that code up.

[00:11:11]So, that's 545.

[00:11:15]>>.058.

[00:11:16]>> The transportation code.

[00:11:17]>> All right. Let's see. That is driving on an improved shoulder.

[00:11:24]An operator may drive on an approved shoulder to the right of the main travel portion of a roadway if that operation is necessary and may be done safely, but only if to stop, stand or park, to accelerate before entering a main travel lane of traffic, to decelerate before making a right turn. Okay.

[00:11:45]>> Your Honor.

[00:11:46]>> So, in terms of their arguments about the driving on the shoulder under Lawthrup, their case that they're citing, [snorts] the case itself says, "And I quote, merely driving on an improved shoulder is not prima facie evidence of an offense." That's their case.

[00:12:01]It says the exact >> [snorts] >> That doesn't benefit them at all. In terms of Harden, their own case, based on our review of the record and precedent, we conclude that the detaining officer did not have reasonable suspicion to stop at belief for violating transportation code section 545.060.

[00:12:18]Again, that's their case. And And in that one, that's where the the vehicle's tires crossed over the fog line, just as in our case, into the shoulder. And in their own case, it says that was not reasonable suspicion. And And so, you know, I would I I I would like to, you know, highlight these two cases cuz I think they're directly on point. I don't know why the state did.

[00:12:41]In terms of State v. Hernandez, which is 2016 out of the Fourth Court of Appeals, and I have the appellate case number, but I don't have the specific site.

[00:12:52]>> My only concern is is there an element of unsafety? You're all I want to know.

[00:12:57]>> Just to address one point briefly. In the case Lawthrup, they did say that driving on an improved shoulder is not prima facie case of evidence of an offense. However, they if it says explicitly that the offense of illegally driving on an improved shoulder can be proven in one of two ways, either driving on an improved shoulder with not necessary part of achieving one of the seven approved purposes, which are articulated in the statute, or that it could not have been done safely. And here, we're again going back to the seven articulated purposes in the statute that are not present here. He entered halfway into the shoulder and then jerked back into the lane. There's after previously having just gone through a green light.

[00:13:33]So, there's no indication that he's allowing a vehicle to pass or anything like that. He went through a green light, entered the shoulder, and then jerked back.

[00:13:39]>> So, by your theory then, any single person that ever drives a mere nanosecond to the right of an improved shoulder is now violating this this offense this this this transportation code. He This law can't be like that.

[00:13:56]>> It wasn't just announced. He went halfway in. So, he went veered halfway into the shoulder. It wasn't just like a little deviation. He said it The officer said halfway into the shoulder and then jerked back into the lane. So, >> Didn't say >> He went out and then came back into the >> So, are we supposing that that's like half a second of driving on an improved shoulder?

[00:14:14]Are we Is it 1 second? Is it Is it a minute? Is it >> shouldn't matter. I mean, because the the legislature articulated seven specific reasons why that would be permissible, and they wouldn't have >> If a If an old grandmother who is 70 years old is driving on a freeway and accidentally Oh.

[00:14:32]>> And I do But, that would provide the minimal justification just to perform a a investigative, you know, a a stop just to just to investigate. It wouldn't be an arrest or anything like that. It would just be the traffic stop would be allowed at that point. There >> I I don't know. I just I don't think that the officer wrote enough in the report. I don't think that the unsafetyness as far as, you know, saying that there are other cars around the I just don't think that there's enough.

[00:15:00]>> Yes, Judge. I'll find no probable cause.

[00:15:02]>> Thank you.

[00:15:03]>> Okay.

[00:15:04]>> Despite initially finding probable cause, Judge Fleischer revisited the determination when defense attorney Craig Stewart asked to be heard and ultimately concluded that there was no probable cause based on Mr. Stewart's challenge to the lawfulness of the traffic stop. The traffic stop that led to Mr. Allen's DWI charge was based entirely on his vehicle drifting approximately halfway onto the improved shoulder and jerking back into its lane.

[00:15:26]The lawfulness of the traffic stop depended on two provisions of the Texas Transportation Code, both of which were discussed during the hearing. Section 545.060 of the code requires an operator on a roadway with two or more marked lanes to stay within a single lane as much as circumstances reasonably allow and prohibits moving from the lane unless that movement can be made safely. While section 545.058 permits driving on an improved shoulder when it is necessary to accomplish one of seven enumerated purposes and can be done safely. Judge Fleischer concluded that the officer's report established neither violation as the statement that there were quote unquote other vehicles around without any indication of where those vehicles were was too vague to show that Mr. Allen's movement was unsafe and nothing in the report ruled out a permissible reason for the brief entry onto the shoulder. Well, without a lawful basis for the underlying traffic stop, the DWI charge could not stand. In the 1963 case of Wong Sun v. United States, the Supreme Court held that evidence derived from an unlawful search or seizure is inadmissible as so-called fruit of the poisonous tree and because all of the intoxication evidence flowed directly from the unlawful stop, there was no evidence left to support the charge. Judge Fleischer found no probable cause and court records show that the case was dismissed on February 24th, 2025. Our next case involves defendant Michael Hardy, who was charged with possession of marijuana in an amount under 2 oz on November 26th, 2024. Mr. Hardy appeared in front of Judge Fleischer for a probable cause determination on December 31st, 2024.

[00:17:01]>> Why on two different sides?

[00:17:05]You embarrassed to be with your mom?

[00:17:07]Oh, okay.

[00:17:08]>> I separate I separate family and spectators.

[00:17:11]>> Okay.

[00:17:12]Good morning, Mr. Hardy.

[00:17:13]>> Good morning. How are you doing?

[00:17:14]>> Mr. Hardy, you're charged with the possession of marijuana. You're facing up to 6 months in jail and or a $2,000 fine. Shh. You're going to do probable cause. You have the right to remain silent. Anything you say can and will be used against you. You have the right to have an attorney present. If you cannot afford one, one will be appointed to you, sir.

[00:17:29]>> Yes, Judge. Okay.

[00:17:30]>> On November 22nd, 2024, the officer observed the defendant's vehicle parked more than 18 in from a curb on a public roadway in the right lane of a two-lane, two-way road in Harris County, Texas.

[00:17:41]While the officer ran the motor vehicle, the passenger side door opened, a black female exited, and the female approached the patrol vehicle. The officer made contact with the female and observed a strong odor of marijuana emanating from the female. The officer made contact with the defendant, the driver of the vehicle, and observed a strong odor of marijuana and had the defendant exit the motor vehicle. A PC search was conducted and the officer located 3.5 in the driver's side door and one blue package with Oops! All Berry on the front containing green leafy substance on the rear driver's side floorboard, one red package with Fruity Pebbles on the front containing a green leafy substance in the back seat, and two clear plastic baggies containing green leafy substance under the front and right passenger seat. The officer also observed one burnt marijuana cigar behind the front passenger seat and one small chunk of loose green leafy substance in between the driver seat and the door. The green leafy substance was identified as marijuana based on training experience and the weight was 54 g or 1.9 oz.

[00:18:42]>> He was doing what that was wrong?

[00:18:44]>> So, he was parked more than 18 in from the curb on the right lane of a two-lane, two-way road.

[00:18:50]>> When on earth are you going to know that you're parking more than 18 in? What time of day or night was this?

[00:18:57]>> Your Honor, >> So, parking while black now?

[00:19:08]Come on.

[00:19:09]>> [clears throat] >> Your Honor, there's no time listed. It just says the officer was on patrol around the 3518 block of Arbor Glen Drive when he observed the vehicle parked within 18 inches from the curb.

[00:19:21]>> And so he goes up to the car because of that?

[00:19:23]>> No, Your Honor, a female passenger side exited the passenger side and approached their vehicle and he observed a marijuana from >> because he comes up to them.

[00:19:33]>> [clears throat] >> Right? Stop.

[00:19:36]Are you losing?

[00:19:38]>> The officer wrote as he ran the vehicle presumed the license plate.

[00:19:41]>> them over.

[00:19:43]>> They were already parked on the side of the road 18 inches from the curb and he came I guess parked behind and he was running the vehicle and then the passenger side door opened, a black female exited and approached his vehicle, the patrol vehicle, and he observed a odor of marijuana on the female and then he made contact with the driver where he observed marijuana odor in the vehicle.

[00:20:02]So the female approached the patrol vehicle.

[00:20:04]>> Show me in the penal code that code.

[00:20:06]What What is What is the penal code for that?

[00:20:08]>> Regarding the 18 inches from the curb, sir, is that the issue here?

[00:20:11]>> Is she what we're talking about? Yeah, because they came to him because he comes to them, right? They're just parked.

[00:20:18]He comes to them.

[00:20:20]It's got to be a transportation code, not penal code, you know?

[00:20:25]>> [snorts] >> And Your Honor, regarding the timeline of events, it does appear that um when they were parked that distance away, which could be arguably further. I don't know what it looked like at that time, but um the female passenger is the one who exited first and that was before officers ever made contact with them.

[00:20:50]Um so I don't know if you were um thinking that the officers approached them first, but I just wanted to clarify that she approached first.

[00:20:59]>> Okay. What time of day or night was this?

[00:21:02]>> I'm trying to see that, Your Honor. Give me a second.

[00:21:04]It's at 4:00 in the morning.

[00:21:06]>> And Your Honor, I 4:00 in the morning.

[00:21:08]>> 4:30 a.m.

[00:21:08]>> And he can delineate at 4:00 in the morning that parking 18 in from a curb.

[00:21:12]>> And I found the regulation the statute in the transportation code where it says you got to park within 18 in.

[00:21:19]>> 4:00 in the morning. You can tell.

[00:21:22]>> You're right.

[00:21:23]The officer was >> Yes.

[00:21:25]>> I don't think so.

[00:21:26]All right. I'm going to find no probable cause.

[00:21:29]>> Thank you, Judge.

[00:21:30]>> Guys, be careful. Right? You know, they're always out there. Just be careful. Do something with your life.

[00:21:38]Knowledge is power. Get into school. Get an education.

[00:21:42]>> Judge Fleischer questioned how the officer could have determined at 4:00 in the morning that Mr. Hardy's vehicle was parked more than 18 in from the curb and ultimately concluded that there was no probable cause because the sole asserted basis for the officer's investigation, the alleged parking violation, was unsupported. Section 545.303 of the Texas Transportation Code requires an operator who stops or parks on a two-way roadway to do so with the right-hand wheels of the vehicle parallel to and within 18 in of the right-hand curb or edge of the roadway.

[00:22:13]Once the prosecutor stated that the encounter occurred at approximately 4:00 to 4:30 in the morning, Judge Fleischer was unwilling to accept that the officer could make that determination visually in the darkness of that hour. Because Judge Fleischer concluded that there was no legal basis to detain Mr. Hardy, the evidence obtained during the investigation could not be used under the so-called fruit of the poisonous tree doctrine that we discussed earlier in this episode. Accordingly, Judge Fleischer found no probable cause and the case was dismissed on January 7th, 2025. Our final case involves defendant David Clear who was charged with driving while intoxicated with an alcohol concentration of.15 or more on March 17th, 2025. A probable cause hearing was held in front of Judge Fleischer on March 24th, 2025.

[00:22:59]>> Good morning, sir.

[00:23:00]>> Good morning.

[00:23:01]>> Sir, you were charged with driving while intoxicated. First offense, it's elevated to a class A misdemeanor because of the high blood.

[00:23:07]You were facing up to a year in jail and or a $4,000 fine. We are going to do probable cause. You have the right to remain silent. Anything you say can and will be used against you.

[00:23:15]You have the right to have an attorney present. If you cannot afford one, one will be appointed to you, sir.

[00:23:19]Okay.

[00:23:20]>> On March 17th, 2025, an officer was dispatched to a call for service at the 400th block of West Gray Street, Houston, Harris County, Texas.

[00:23:29]Upon arrival, the officer observed the defendant sitting inside his vehicle.

[00:23:34]The officer made contact with the defendant and observed the defendant have bloodshot eyes, unsteady balance, and was confused. The defendant stated he didn't have anything to drink.

[00:23:43]A Houston Fire Department employee, the wheel witness, stated the defendant was asleep in the driver side of the vehicle with his foot on the brake and the vehicle in drive.

[00:23:51]The wheel witness stated he had a hard time waking up the defendant. As FSTs were conducted, six out of six clues were observed on the HGN, five out of eight clues observed on the walk-in turn, three out of four clues observed on the one-leg stand. The DIC was read and the defendant consented to a breath test. The results were 0.179 and 0.175.

[00:24:13]>> Where was he? Was he in the middle of the road?

[00:24:15]>> It It sounds like >> The >> Yeah, I don't So, it says that he was sitting inside his vehicle on the 400th block of West Gray Street, which is accessible to the public.

[00:24:26]It on a public road.

[00:24:28]>> Oh, please. I have I have no idea what that is, where it is.

[00:24:34]Is he in the middle of the road? Is he in a parking lot?

[00:24:39]Is it Domino's Pizza? I mean, >> It says it's on a public says it's on a public street.

[00:24:47]It says Well, more specifically, it says 400th block of West Gray Street is a public street.

[00:24:52]>> I mean, I need more information. I mean, does it say he's on the street there or are you assuming?

[00:24:56]>> No, I'm not assuming. I'm saying what it says is that um the 400 block of West Gray Street is a public street. It doesn't say specifically >> This is [clears throat] all brand new.

[00:25:09]Doesn't ask him if he's driving, does it? And none of that in there? I mean, really.

[00:25:13]>> Yeah, he did have the vehicle in drive with his foot on the brake and was unconscious. But in regards to the location aspect of it, I there's nothing further to say about it.

[00:25:21]>> Yeah, I'm I mean, I'm sorry. I'm going to find no probable cause. I can't just go forward with assumptions here, you know?

[00:25:27]Mr. Cleary, be safe, man. You know, we have every single day. Look this weekend, how many people died on the road here in Harris County? You know, really.

[00:25:37]Be smart. Thank you. You know, you have but one life. Don't do something where you either ruin your life or more importantly ruin someone else's life.

[00:25:45]Okay?

[00:25:46]>> I appreciate it.

[00:25:46]>> Please take a seat for me, sir. I'm going to find no probable cause.

[00:25:49]>> Judge Fleischer found no probable cause on Mr. Cleary's DWI charge after the state was unable to establish where his vehicle was located and by extension whether he was in a public place. Under Section 49.04 of the Texas Penal Code, a person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place which Section 1.07 of the Texas Penal Code defines as any place to which the public or a substantial group of the public has access including streets and highways. The report stated that the officer found Mr. Cleary in his vehicle when responding to a call for service at the 400 block of West Gray Street but did not identify where in that block the vehicle was discovered.

[00:26:32]When Judge Fleischer pressed on the vehicle's actual location, the prosecutor could say only that the report described the block as a public street without stating that the vehicle itself was on the street. Declining to fill that gap with assumptions, Judge Fleischer determined that there was no probable cause and the case was dismissed on March 31st, 2025. The hearings examined in this episode illustrate how a probable cause determination can serve as a genuine screening function in the criminal justice system. In each case, the state's presentation failed in the same way. The offense report stated a conclusion without the specific facts needed to support it, whether that the presence of other vehicles made a lane deviation unsafe, that an officer could see a parked car's distance from the curb in the dark, or that a vehicle occupied a public place within of the statute. Judge Fleischer declined in each instance to supply the missing facts through assumption, and that discipline reflects where the burden lies in a criminal prosecution, as it is the state's obligation to justify both the charge and the police conduct that produced the evidence supporting it. For a misdemeanor defendant, the probable cause determination is often the only point at which a neutral judge examines the state's evidence before a case settles into months of court settings, bond conditions, and legal expenses, pressures that can push a defendant toward resolving the charge regardless of its strength. A judge who scrutinizes the offense report at that first appearance ensures that the government's authority to prosecute rests on supported facts from the outset. Let us know if there is a case or courtroom interaction that you would like us to explore in the comments below. Thank you for watching, and don't forget to like and subscribe so we can help foster [music] a more informed society.