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Mary Wells is a health care worker who works the night shift taking care of elderly patients in a nursing home.  Mary is also a single mother to a 10 year old son, Mario and a 17 year old daughter, Felicia. After work on Friday night, Mary picks up Mario the next morning from her sister's to get his prescription from the local pharmacy.  After getting Mario's prescription, she drives to pick Felicia up from her high school's band practice.  Mary exits the parking lot on San Felipe and heads to the turn lane.  She crosses the first two lanes without any problems but as she attempts to cross the third lane, her Toyota Corolla is hit by a GMC Yukon driven by Axel Karlsson.  The hit was significant and sends Mary's Corolla into a light post on the other side of the street. Fortunately, Mario, who was in the back seat suffered no injuries. Mary's car was totaled and she suffered a tear in her cornea from the impact of airbag and two slipped discs in her back.  Axel's car was damaged as well but he suffered no injuries.

After speaking with Mary and Mario and then with Axel, the police officer investigating the accident issued Axel a ticket for failure to control speed.  Mary was in a lot of pain after the accident and she missed about two weeks off from work without pay.  After she returned to work, the slipped discs in her lumbar did not allow her to do any heavy lifting, which is sometimes required for when she is helping her patients to the shower, or in and out of bed.  She was unable to keep her job because she could no longer perform her duties.  Mary was very concerned about the medical bills she incurred after the accident to treat her back and eyes and she could not keep borrowing her sister's car forever.  To top it off, Axel's insurance company was giving her the run a round.  They took the position that the ticket was wrong and that it was Mary's obligation to look first before she crossed into Axel's lane and verify it was safe to cross. She decided to hire a personal injury attorney to help her out.  Her attorney told her his aim was to get her $35,000 to cover the damages to her car, injuries and medical bills. She was steaming mad that Axel's insurance company was not taking care of this situation and that it was dragging on.  

A few weeks after the accident, Mary received a subpoena to appear in her precinct's Justice of the Peace court to testify against Axel on his traffic ticket.  She decided this was her chance to get justice.  She could get her side out and probably help her civil case. She discussed the subpoena with her personal injury lawyer.  However, because this was not the civil case the attorney was hired to represent Mary for, the attorney did not prepare her for a trial on the traffic accident case in the JP court.

When Mary showed up, she spoke with the district attorney and learned that Axel could plea out his case with defensive driving or deferred adjudication.  Even though it would clear his record, Mary was ok with that because at least he would pay something and that would show the civil court and the insurance company she was right and Axel was the cause of the accident.  When the district attorney called her again to speak with her, she was surprised to learn that Axel was not taking a plea deal.  It made her piping mad.  Here it was that he hit her, risked her son's life, caused her injures, medical bills, lost wages and even the lost of her job and this joker could not take responsibility for his actions.  

During the trial, Mary is sworn in and  takes the stand.  She nailed it on direct examination.  She identified Axel as the driver of the GMC Yukon, said he was the cause of the accident and had it not been for his failure to control his speed, the accident would not have happened.  She even mentioned that she thought he was speeding because of the impact to her car. Cross examination, though, was a different story.  During cross, she was forced to admit that she knew as a driver she had a duty to look first and verify she had a clear pathway before leaving the parking lot and crossing each lane on a roadway.  She also admitted, the drivers in lane one and two gave her permission to cross but she never looked before crossing in the third lane to see if the pathway was clear.  Then that pesky defense attorney caused her to admit that at the time of the accident she did not sleep from the night before and she was looking at a text message from Felicia that practice ended early.

Mary felt shaken after giving her testimony.  However, she thought surely the jury will find in her favor and find Axel guilty.  She reasoned it did not matter that she did not look before crossing into his lane, he should not have driven at that speed.  The jury deliberates for a hour and a half.  They come back with their decision.  They respond yes, when the judge asks them if their decision was unanimous. The verdict is read.  

Did Mary Win?

Accident cases are often the link between a personal injury case and a traffic ticket. The same underlying facts and law in an accident can form the basis for a civil personal injury case and a criminal traffic case. As a result, many people confuse the two.  

Points on A Driving Record vs. Monetary Damages

Common charges for accident cases filed as class c misdemeanors include, but are not limited to, failure to control speed, changing lanes unsafely, turning from a direct course, running a red light and running a stop sign. District attorneys are interested in bringing cases to juries that they believe they can win.  Their goal is to get convictions on those class c misdemeanors.  The district attorney in order to get a conviction must prove their case beyond a reasonable doubt.  It is the highest  burden of proof to prevail in litigation. Once a person receives a conviction on an accident case, they will receive three points on their driving record.1 Given, that usually the accident is only witnessed by the persons involved and persons at the scene, a conviction is not possible without the testimony of said witnesses. The problem however, is the risk involved for the witness if they have an unsettled personal injury case from the same accident.

The common law principle behind personal injury claims is to restore the injured person to where they were prior to the accident. The injured party is paid to cover medical bills, injuries suffered, and/or lost income that they would not have suffered but for another party's negligence in causing the accident.  Negligence claims are established by demonstrating 1)  duty owed to the injured party 2) breach of that duty 3) proximate cause of damages caused by the breach and 3) damages suffered.2 Monetary damages vary greatly but it is not unusual for an injured party to recover large lump sums that can be financially life changing.  Insurance companies do not pay out claims against their insureds easily.  Because great monies are at risk in personal injury cases, the insurance companies will go to great lengths to investigate a claim before either coming to a settlement or even before the parties will go to trial on the matter.

A Plea Deal on A Traffic Ticket Cannot Be Used to Bolster A Personal Injury Claim

When a person is charged with a traffic ticket, they are alleged to have committed a class c misdemeanor.  Accident cases filed in a Texas municipality or a justice of the peace court is treated as a class c misdemeanor as well.  Any person charged with a class c misdemeanor receives the same right to jury trial as any other person charged with a criminal offense in Texas.  Many witnesses believe that once a person pleas to their accident case, that will allow them to win in their personal injury claim.  However, that is not necessarily true. A plea may be used in a personal injury claim if the defendant pleas guilty or is found guilty by a jury.  What is usually the case, however, if a defendant decides to pay the allegation, take defensive driving or take deferred adjudication, they plea nolo contendere. Nolo contendere means the accused accepts the penalty of a guilty plea but does not admit guilt in the alleged offense. 3 A nolo contendere plea cannot be used as evidence in a civil case. 4 The defendant has a right to enter a nolo contendere plea if they choose to.  While it is a Judge's discretion to accept or deny any plea deal made by a prosecutor and a defendant, in traffic court, those plea deals are usually accepted.  

A Traffic Accident Trial Exposes Great Risks To The Witness Who Is A Personal Injury Claimant

In our fictional scenario above, we asked the reader to determine if Mary won.  Mary decided to testify to bolster her civil case. However, her admissions on the stand may hurt her ability to recoup her damages in her civil case.  Win, loose, or draw, Mary made some admissions that now implicates her full or partial culpability for the accident.  You see Texas uses a modified comparative fault standard for negligence claims filed in the state.  A claimant is not permitted to recover damages in any negligence case, including accidents, if the claimant's responsibility for the cause is greater than 50%.5 Even if a claimant is allowed to recover damages, their damages will be reduced by their deemed percentage of fault.6  In a nutshell, if a civil court agrees with the insurance company and finds from Mary's admissions that she bears more than 50% responsibility for the accident, Mary will get nothing of the $35,000 her lawyers believed she could recover.  Let's say the civil court finds Axel is mostly responsible for the accident but Mary still bears 35% of the responsibility for causing the accident, even if the court finds her damages are $35,000, her award would be reduced  by 35% and she would recover only $22,750 before attorney fees are taken out.  

If the jury in the justice of the peace court finds Axel guilty, not guilty, or are unable to reach a verdict, the insurance company can get Mary's transcribed testimony from the court reporter and use it in her civil case.  Mary is now unable to deny she made the admissions because her statements are now admissible in her civil court as a declarant's prior statement.7 Even if Mary never steps foot in a civil courtroom, her statements under oath are now available to the insurance company as leverage in their case.

Did Mary Win?

The fictional demonstration regarding Mary Wells demonstrates a scenario that plays out far too frequently in traffic court.  Persons with pending personal injuries claims come to the courthouse with the expectation that a victory in traffic court will make their civil case a slam dunk. However, because they are unfamiliar with the nuances of criminal law, civil law and the Texas rules of evidence, they do not see or understand the great risks taken with their civil claims.  Furthermore, because they are wholly unprepared for cross examination by a party opponent, said witnesses do not process what can happen to their civil cases. There is no guarantee that the witness will be able to use the traffic court defendant's testimony in their civil case either. A defendant can choose to not testify and their decision not to testify cannot be held against them in trial. It is a defendant's constitutional right under the Texas8 and United States Constitution.9

Thus, what does a traffic court accident witness gain from their decision to testify?  They will not be paid for their decision to testify. They may not get the testimony of the accused as they can choose to exercise their right to not testify.  Regardless of the traffic court's verdict, the accident witness exposes themselves to potential liability in their civil claim under Texas' modified comparative negligence law and risks eliminating or reducing their ability to collect damages.  

Author's Information:  Attorney Tracey A. Beecher represents persons accused of  class c misdemeanors and city code ordinance violations within the City of Houston Municipal Courts, Harris County Justice of the Peace Courts and Fort Bend County Justice of the Peace Courts.  

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

1See Texas Driver Responsibility Program at https://www.dps.texas.gov/DriverLicense/drp.htm

2 Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013)

3Texas Code of Criminal Procedure Art. 27.02 (5)

4Texas Rules of Evidence 410(a)

5 Texas Civil Practice and Remedies Code 33.01-33.02

6 Texas Civil Practice and Remedies Code 33.03

7Texas Rules of Evidence 801(e)

8 Texas Bill of Rights, Section 10: https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm

9 United States Constitution, Fifth Amendment. https://constitutioncenter.org/interactive-constitution/amendments/amendment-v