Opinion issued October 11, 2012
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-10-00247-CR ——————————— CHERYL MARIE VIERLING, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 5 Harris County, Texas Trial Court Case No. 159464401010
MEMORANDUM OPINION
Convicted by a jury of the misdemeanor offense of driving while
intoxicated, and sentenced to 180 days, probated for one year, Cheryl Marie
Vierling maintains that the trial court erred by (1) denying her motion to suppress, (2) admitting her refusal to submit to a portable breath test, (3) admitting the
testimony of two witnesses who were not disclosed prior to trial, and (4) denying a
mistrial when the evidence published to the jury contained an invocation of her
right to counsel.
Additionally, Vierling argues that (5) the jury charge was improper and
resulted in egregious harm, (6) an improper jury argument by the State tainted the
presumption of innocence, and (7) the trial court abused its discretion during
sentencing when it required Vierling to use an interlock device.
We affirm the trial court’s judgment.1
Background
Texas Department of Public Safety Trooper Gens began following
Vierling’s vehicle at 2 AM after he spotted it “drifting to the left going down the
center stripe.” Gens testified that he witnessed Vierling violate several traffic laws
as he followed her, including failure to drive in a single marked lane and driving in
a no-passing zone. Her tires crossed the yellow line several times.2
1 Vierling also complained that the trial court erred in failing to submit findings of fact and conclusions of law following its denial of her motion to suppress. We abated the appeal in order for the trial court to do so and we reinstated the appeal once a supplemental record was filed with this Court containing the requested findings of fact and conclusions of law. 2 Although Gens testified that Vierling never used her turn signal, he corrected his testimony on cross-examination after a dashcam video refreshed his memory. 2 When he began following Vierling, Gens turned on his dashboard camera
and a redacted version of that video was played for the jury as Gens pointed out
each violation using a laser pointer. At the first intersection, she made a wide right
turn, again crossing the double stripes. Her vehicle continued to drift from side to
side within the same lane of traffic, occasionally driving on or over the center
stripe. Gens did not stop her at that point because they were about to drive onto a
bridge and the conditions were unsafe to do so. He witnessed several more
violations on the bridge, including “riding the center stripe” and driving in a
no-passing zone. After four minutes and fifteen seconds of following Vierling,
Gens concluded that she was possibly impaired. Once beyond the bridge, Gens
turned on his overhead lights to alert Vierling to pull over. Gens noticed that
Vierling “slurred” her speech, appeared “disoriented” and “confused,” had an
“odor of alcohol,” and had “red, glassy eyes,” all of which he considered signs of
intoxication. Clearly upset, Vierling claimed that she was being stalked and was
anxious to get home. When asked to get out of her car, she complied but continued
to express concern about her stalker and Gens’s seeming lack of concern about the
stalker.
Vierling was asked to perform various field-sobriety tests, including the
alphabet test, the Romberg test (maintaining balance standing with eyes closed),
and the one-leg stand test. Vierling did not get past “g” in the alphabet test, had a
3 circular sway and unbalanced stance on the Romberg, and was unable to stand on
one leg. Vierling informed the trooper that her high-heeled shoes were new and
her knee injury prohibited a one-legged stance. She admitted to having had two or
three drinks over the course of the night. After Vierling refused a portable breath
test, Gens told Vierling that she was under arrest, cuffed her, and seated her in the
patrol car. Gens drove her to the police substation where she was read her rights
on videotape and asked to perform additional sobriety tests. This video, too, was
played for the jury and recorded her poor performance of the walk-and-turn and the
one-leg stand exercises.
At trial, the State’s offer of business records from two bars Vierling had
patronized that night were objected to on the basis of insufficient notice. The
defense, however, thereafter admitted to having been provided one of the receipts
via discovery and further acknowledged that calling the custodian of records for
the receipts would defeat the notice concern under Texas Rule of Evidence 902.
Dietz from the Tin Cup Sports Bar then testified for the State that Vierling
was a regular customer and authenticated a receipt from the night of the arrest for
one Grey Goose Cosmo—a vodka, triple sec, and cranberry juice drink. At the
conclusion of Dietz’s direct examination, when the State attempted to elicit
testimony about Vierling’s conduct at the bar, Vierling objection that Dietz was not
4 listed on the State’s witness list was sustained as to testimony beyond the scope of
authentication of the receipt.
Similarly, when Watson, manager of JT’s Sports Bar, authenticated a receipt
documenting that Vierling bought two alcoholic beverages at her bar, Vierling’s
objection that Watson was not a listed witness was sustained, but the court allowed
her testimony as an authentication witness with respect to the business record.
At the conclusion of the testimony, Vierling moved to suppress the evidence
obtained as a result of the traffic stop, citing an absence of probable cause and
claiming the video contradicted Trooper Gens’s testimony. After watching the
video again, the court denied the motion. Vierling’s requested findings of fact and
conclusions of law. The court requested proposed findings from both parties, but
did not state the basis for her ruling on the record.
Vierling’s motion for an instructed verdict was denied. At the charge
conference, Vierling proposed an article 38.23 instruction, which the trial court
gave over the State’s objection. TEX. CODE CRIM. PROC. ANN. art. 38.23 (West
2005). Vierling made no objections to the charge, nor requested any amendment
thereto. The State rested, and Vierling rested without presenting any evidence.
The jury found Vierling guilty of the misdemeanor offense of driving while
intoxicated, and the trial court assessed her punishment as 180 days in jail probated
for one year, per Vierling’s agreement with the State. Vierling appealed. We
5 abated the appeal in order for the trial court to make findings of fact and
conclusions of law with respect to its denial of her motion to suppress, and we
reinstated the appeal once a supplemental record was filed with this Court
containing the requested findings of fact and conclusions of law.
The trial court found, inter alia, that Trooper Gens was a credible witness
with over twenty-five years experience, including over 1,000 arrests of intoxicated
drivers. The trial court also found that Gens observed Vierling cross the yellow
stripe of a no-passing zone, and thus had lawful authority to conduct a traffic stop.
See TEX. TRANSP. CODE ANN. § 545.055(b) (West 2011) (prohibiting driver from
driving on left side of any pavement striping marking no-passing-zone); see also
Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992) (holding that even if
arresting officer had second subjective reason for stopping vehicle, trial court erred
in suppressing evidence because officer had objective reason for arrest when
defendant failed to stop at stop sign); Coleman v. State, 188 S.W.3d 708, 716 (Tex.
App.—Tyler 2005, pet. ref’d) (holding officer’s decision to stop motorist
reasonable when officer has probable cause to believe that traffic violation has
occurred).
The trial court also found that Trooper Gens did not stop Vierling’s vehicle
after her first set of traffic violations because they were crossing the bridge over
Lake Houston and it would not have been a safe place to conduct standardized
6 field-sobriety tests or a traffic stop. The court further found that Gens waited to
conduct the traffic stop until they reached a well-lit parking lot and that the delay
in stopping Vierling’s vehicle was reasonable and was conducted within a
reasonable time and distance from the traffic violations.
Discussion
A. Motion to Suppress
In her first issue on appeal, Vierling contends that the trial court erred in
denying her motion to suppress the traffic stop. Specifically, Vierling argues that
the trooper lacked reasonable suspicion to believe that she had violated section
545.060 of the Transportation Code because weaving within the lane is not a traffic
violation and because her driving was not unsafe. See TEX. TRANSP. CODE ANN.
§ 545.060 (West 2011). She further contends that, even if she did commit a traffic
violation, the court’s denial of her motion to suppress was still error because Gens
did not initiate the traffic stop within a reasonable time and distance after the
alleged violation.
Filing a motion to suppress alone does not preserve any error in the
admission of the evidence sought to be suppressed. Coleman v. State, 113 S.W.3d
496, 499–500 (Tex. App.—Houston [1st Dist.] 2003), aff’d on other grounds, 145
S.W.3d 649 (Tex. Crim. App. 2004). If a motion to suppress has yet to be ruled on
when the evidence is offered at trial, in order to preserve error a defendant must
7 object to the evidence at the time it is offered. Ross v. State, 678 S.W.2d 491, 493
(Tex. Crim. App. 1984). Just as an objection or motion to suppress made after the
evidence or substantial testimony about the evidence has already been admitted
without objection is untimely, Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim.
App. 1980), Stults v. State, 23 S.W.3d 198, 205–06 (Tex. App.—Houston [14th
Dist.] 2000, pet. ref’d), Laurant v. State, 926 S.W.2d 782, 783 (Tex. App.—
Houston [1st Dist.] 1996, pet. ref’d), a motion to suppress urged after the State has
rested and the challenged evidence admitted without objection is too late to
preserve error. Nelson v. State, 626 S.W.2d 535, 536 (Tex. Crim. App. [Panel Op.]
1981); Sims v. State, 833 S.W.2d 281, 284 (Tex. App.—Houston [14th Dist.] 1992,
pet. ref’d).
Noncompliance with this rule is excused when, and only when, the trial
court makes specific pretrial comments that “essentially [direct the defendant] to
wait until all the evidence [is] presented” before seeking a ruling from the court on
the motion to suppress and has told the defendant that it would “make no ruling
until all the testimony had been presented.” Garza v. State, 126 S.W.3d 79, 84–85
(Tex. Crim. App. 2004). It is additionally clear that once a defendant affirmatively
states that he has “no objection” to the admission of the item sought to be
suppressed, any complaint as to its admission is waived. Moraguez v. State, 701
8 S.W.2d 902, 904 (Tex. Crim. App. 1986); Thomas v. State, 312 S.W.3d 732, 736
(Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).
Although Vierling filed her motion to suppress on the first day of trial, she
did not move to suppress the evidence obtained as a result of the traffic stop until
after the State rested its case. Nor did Vierling object to Gens’s testimony about
the stop; and when the dashcam video depicting the stop was offered into evidence,
Vierling’s counsel stated: “Judge, just for the record, I don’t have any objections to
the predicate, so long as I’m not waiving any other objections I’ve made outside
the presence of the jury.” Too, when the video from the police sub-station was
offered into evidence later that day, Vierling’s counsel stated, “Judge, no objection
to the predicate, subject to the objections we’ve already taken outside the presence
of the jury.” The appellate record also contains no pretrial remarks by the trial
court indicating that the narrow exception in Garza is applicable.
Accordingly, we hold that Vierling failed to preserve any error for our
review with respect to the trial court’s ruling on her motion to suppress. See TEX.
R. APP. P. 33.1(a)(1); Moraguez, 701 S.W.2d at 904; Nelson, 626 S.W.2d at 536;
Marini, 593 S.W.2d at 714; Thomas, 312 S.W.3d at 736; Stults, 23 S.W.3d at 205–
06; Laurant, 926 S.W.2d at 783; Sims, 833 S.W.2d at 284.
We overrule Vierling’s first issue.
9 B. Admission of Refusal to Submit to Portable Breath Test
Vierling’s second issue contends that the admission of her refusal to take a
portable breath test was error. Assuming without deciding, that the admission of
Vierling’s refusal to take the test was error, that error would be non-constitutional
in nature and subject to analysis under Texas Rule of Appellate Procedure 44.2(b).
See Kamen v. State, 305 S.W.3d 192, 197 (Tex. App.—Houston [1st Dist.], 2009,
pet. ref’d) (applying nonconstitutional harm analysis to erroneous admission of
evidence pertaining to field-sobriety test).
Nonconstitutional error must be disregarded unless it affects substantial
rights of the defendant. Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App.
2011). A substantial right is affected when the error had a substantial and injurious
effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d
266, 271 (Tex. Crim. App. 1997). A conviction should not be overturned for such
error unless this Court, after examining the record as a whole, has fair assurance
the error did not influence the jury, or influenced the jury only slightly. Barshaw,
342 S.W.3d at 93. In other words, we must reverse a conviction for
nonconstitutional error if we have “grave doubt” about whether the result of the
trial was free from the substantial influence of the error. Id. at 94. “‘Grave doubt’
means that ‘in the judge’s mind, the matter is so evenly balanced that he feels
10 himself in virtual equipoise as to the harmlessness of the error.’” Id. (quoting
Burnett v. State, 88 S.W.3d 633, 637–38 (Tex. Crim. App. 2002)).
In assessing potential harm, we focus not on whether the outcome of the trial
was proper despite the error, but on whether the error had a substantial or injurious
effect or influence on the jury’s verdict. Id. at 93–94. In making this evaluation,
we may consider several factors, including the evidence introduced at trial, the
nature of the evidence supporting the verdict, the character of the alleged error, the
jury instructions, the State’s theory and any defensive theories, closing arguments,
and whether the State emphasized the error. See Motilla v. State, 78 S.W.3d 352,
355–56 (Tex. Crim. App. 2002).
Here, the evidence supporting Vierling’s guilt included her inability to drive
within her lane or signal a lane change; Gens’s testimony that she seemed confused
and disoriented, smelled of alcohol, and had red, glassy eyes when he first
encountered her; her slurred speech; her fluctuating moods—ranging from
belligerent to morose and back again; her admitted consumption of alcohol that
night; and other indications noted while performing the various field-sobriety tests,
including her inability to recite the alphabet, her inability to complete the walk-
and-turn test and one-leg stand test, and her swaying during the Romberg and other
tests. While much of this evidence was attested to by Gens during his testimony,
the video published to the jury provided corroborating and independent evidence
11 upon which the jury could have rested its determination that Vierling was
intoxicated.
A review of the entire trial shows that Vierling’s refusal to take the portable
breath test was simply one of a long series of transactions between Vierling and
Gens and a small part of the State’s case against Vierling. Although the State
mentioned Vierling’s refusal to take the Intoxilyzer test at the station in its
opening—an undisputedly admissible statement—the State thereafter never
specifically mentioned the portable breath test or Vierling’s refusal to take the test.
Instead, the State focused on Vierling’s overall demeanor and performance on the
field-sobriety tests as evidence of the loss of use of her normal mental and physical
faculties.
Our review of the entire record, fairly assures this Court that the admission
of Vierling’s refusal to take the portable breath test had no substantial and injurious
effect or influence in determining the jury’s verdict and, thus, did not affect any of
Vierling’s substantial rights. See Barshaw, 342 S.W.3d at 93–94; King, 953
S.W.2d at 271.
We overrule Vierling’s second issue.
C. Undisclosed Witnesses
Vierling further cites as error the admission of testimony from two witnesses
not disclosed prior to trial. Dietz and Watson both testified for the State to
12 authenticate receipts from the bars at which they worked to prove the number of
drinks purchased by Vierling. Vierling claims that the trial court abused its
discretion in allowing the testimony because the prosecutor acted in bad faith in
failing to disclose the witnesses, and without proper notice she could not have
reasonably anticipated their testimony. Vierling objected to both witnesses on the
grounds that neither were named on the witnesses list. By not seeking a
continuance to prepare for their cross-examinations, however, the error, if any, was
rendered harmless. See Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App.
1994).
We overrule Vierling’s third issue.
D. Denial of Mistrial
Vierling’s fourth issue contends that the trial court erred in denying her
request for a mistrial when the evidence published to the jury contained an
invocation of her right to counsel.
Before trial began, Vierling objected to the audio portions of the station
video that included several invocations of her right to counsel, as well as all audio
portions of the video occurring after Trooper Gens read Vierling her Miranda
rights. The court granted Vierling’s pretrial motion to exclude those portions of
the video, pursuant to which the parties agreed to redact the excluded audio
portions from the station video before publishing it to the jury. The State redacted
13 the video, and trial counsel claimed to have viewed the video in which the
invocation had been redacted, but when the State published the video, it included
the statement, “I want to talk to my attorney.” Trial counsel objected, and the trial
court offered to immediately “instruct [the jury] to disregard that statement and not
consider it for any purpose whatsoever or we can leave it alone and not draw more
attention to it or we can do whatever you want within reason.”
Trial counsel moved for a mistrial contending that any instruction to
disregard the statement would not only fail to cure the error, but draw even more
attention to it. Vierling’s objection was sustained but her motion for a mistrial
denied. The court again expressed its willingness to instruct the jury to disregard
the statement for all purposes but defense counsel declined to so move.
A mistrial halts trial proceedings when error is so prejudicial that
expenditure of further time and expense would be wasteful and futile. Ladd v.
State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). The particular facts of the case
determine whether an error requires a mistrial. Id. A mistrial is an appropriate
remedy in extreme circumstances for a narrow class of highly prejudicial and
incurable errors. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004);
Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000).
A trial court’s denial of a motion for a mistrial is reviewed for an abuse of
discretion. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We view
14 the evidence in the light most favorable to the trial court’s ruling, considering only
those arguments before the court at the time of its ruling and we will uphold the
ruling if it was within the zone of reasonable disagreement. Wead v. State, 129
S.W.3d 126, 129 (Tex. Crim. App. 2004).
The Court of Criminal Appeals has determined that the appropriate test for
determining whether a trial court abused its discretion by denying a motion for a
mistrial is a tailored version of the Mosley test according to which we balance three
factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect
of the prosecutor’s remarks); (2) the measures adopted to cure the misconduct (the
efficacy of any cautionary instruction by the trial court); and (3) the certainty of
conviction absent the misconduct (the strength of the evidence supporting the
conviction). See Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007)
(citing Mosley v. State, 983 S.W.2d 249, 259–60 (Tex. Crim. App. 1998));
Hawkins, 135 S.W.3d at 77 (same).
Due to the extremity of the remedy, a mistrial should be granted only when
less drastic alternatives have been explored (i.e., instructing the jury to disregard
inadmissible evidence or comment) and residual prejudice yet remains. See Ocon,
284 S.W.3d at 884–85. While requesting lesser remedies is not a prerequisite to a
motion for mistrial in all situations, when the movant fails to request a lesser
remedy, we will not reverse the court’s judgment if the less drastic alternative
15 could have cured the problem. Ocon, 284 S.W.3d at 885; Young v. State, 137
S.W.3d 65, 70 (Tex. Crim. App. 2004); see also Wood, 18 S.W.3d at 648
(concluding that trial court did not abuse its discretion in denying defendant’s
motion for mistrial when defendant had not requested less drastic remedy of
continuance).
The State contends that Vierling is not entitled to a reversal on this ground
because she declined the trial court’s repeated offers of an instruction to disregard
which would have cured the harm caused by the inadvertently disclosed invocation
of right to counsel. Citing to this Court’s opinions in Loy v. State and Opp v. State,
Vierling argues that the error in permitting the jury to see her invocation of her
right to counsel is a constitutional error warranting reversal because it cannot be
said beyond a reasonable doubt that the error did not contribute to her conviction.
TEX. R. APP. P. 44.2(a); Opp v. State, 36 S.W.3d 158, 160 (Tex. App.—Houston
[1st Dist.] 2000, pet. ref’d); Loy v. State, 982 S.W.2d 616, 617 (Tex. App.—
Houston [1st Dist.] 1998, pet. ref’d). She further argues that an instruction to
disregard the invocation of her right to counsel would not have cured the error,
because such instruction would not safeguard against the possibility of the jury
construing the invocation as evidence of guilt and, as such, a mistrial was the only
means by which she could have been guaranteed that her constitutional rights were
protected and a fair trial received.
16 Although true that the error of a jury witnessing a defendant’s invocation of
counsel is subject to Rule 44.2(a)’s constitutional-harm analysis, that issue is not
before this Court. Unlike in Opp and Loy, the trial court in the present case
sustained Vierling’s objection. See Archie, 221 S.W.3d at 699–700 (stating that
harmless-error analysis under Rule 44.2(a) is improper when trial court sustains
objection but denies request for mistrial because only adverse ruling—denial of
mistrial—is reviewed for abuse of discretion). The only issue with which we are
presented is whether the denial of Vierling’s motion for mistrial was an abuse of
discretion. Although both Opp and Loy may inform our analysis with respect to
this issue, neither case speaks directly to the pivotal, underlying question posed in
the present case: Can the prejudicial effect associated with permitting a jury to see
a defendant’s invocation of counsel be cured by an instruction by the trial court to
disregard it? See id. at 700 (“whether a mistrial should have been granted involves
most, if not all, of the same considerations that attend a harm analysis”) (quoting
Hawkins, 135 S.W.3d at 77)).
Constitutional errors are not, per se, incurable. Prosecutorial comments on a
defendant’s failure to testify violate a defendant’s Fifth Amendment right against
self-incrimination, and like the publication of a defendant’s invocation of his or her
right to counsel, errors associated with such comments are subject to constitutional
harm analysis under Rule 44.2(a). See Lair v. State, 265 S.W.3d 580, 590 (Tex.
17 App.—Houston [1st Dist.] 2008, pet. ref’d). This Court and others have held that
such errors may be cured by an instruction by the trial court to disregard the
comment. See Moore v. State, 999 S.W.2d 385, 405–06 (Tex. Crim. App. 1999)
(concluding that instruction to disregard cured harm from comment on defendant’s
failure to testify); Longoria v. State, 154 S.W.3d 747, 763–64 (Tex. App.—
Houston [14th Dist.] 2004, pet. ref’d) (holding instruction to disregard
prosecutorial comment on defendant’s failure to testify cured error); Johnson v.
State, 83 S.W.3d 229, 231–33 (Tex. App.—Waco 2002, pet. ref’d) (holding trial
court did not abuse its discretion in denying motion for mistrial because instruction
to disregard prosecutorial question regarding defendant’s failure to testify cured
error); Linder v. State, 828 S.W.2d 290, 301 (Tex. App.—Houston [1st Dist.] 1992,
pet. ref’d) (holding instruction to disregard prosecutorial comment on defendant’s
failure to testify cured error). When an instruction to disregard is given, we
presume that the jury followed the instruction in the absence of evidence that it did
not. See Ladd, 3 S.W.3d at 567 (quoting Gardner v. State, 730 S.W.2d 675, 696
(Tex. Crim. App. 1987)).
In most instances, an instruction to disregard will cure the prejudicial effect.
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). An instruction to
disregard is presumptively inadequate only in the most blatant cases; only
offensive or flagrant improper conduct warrants reversal when there has been an
18 instruction to disregard. Perez v. State, 187 S.W.3d 110, 112–13 (Tex. App.—
Waco 2006, no pet.) (citing Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim.
App. 1995)). Here, although the nature of the constitutional right affected by the
publication of this part of the video to the jury was serious, the prejudicial effect
was lessened by the absence of flagrancy and persistency. See Perez, 187 S.W.3d
at 112–13. The publication of Vierling’s statement to the jury was inadvertent and
heard once, never again to be repeated nor referenced. Although the jury asked to
watch the video during their deliberations, the error in this case (unlike in Loy),
was not compounded because the jurors were only allowed to view the video in the
courtroom with counsel and the judge present, and the inadmissible statement was
muted. Under such circumstances, we cannot say that an instruction to disregard
the comment would not have cured any prejudicial effect.
Because Vierling declined the offered instruction to disregard, which could
have cured the error, she is not entitled to reversal here. See Young, 137 S.W.3d at
70 (holding that “an event that could have been prevented by timely objection or
cured by instruction to the jury will not lead an appellate court to reverse on an
appeal by the party who did not request these lesser remedies in the trial court”).
We overrule Vierling’s fourth issue.
19 E. Improper Jury Charge
The fifth issue argues for reversal based upon an improper jury charge which
Vierling contends misstated the law and facts in dispute. Specifically, Vierling
contends that the application section of the jury charge erroneously failed to
instruct the jury that it should acquit her if it found that the stop was illegal because
Trooper Gens did not have reasonable suspicion to believe that she “was weaving
on a public roadway and that this weaving was unsafe.” She further argues that the
charge misstated the law and facts, and thus, failed to provide the jury with the
proper basis to determine the legality of the stop beyond a reasonable doubt.
We review jury charge error in a two-step process. Ngo v. State, 175 S.W.3d
738, 744 (Tex. Crim. App. 2005). First, we determine whether error exists in the
charge. Id. If so, we turn to the record to determine whether sufficient harm was
caused by the error to require reversal of the conviction. Id. If appellant did not
make a proper objection at trial, appellant will obtain a reversal only if the error
was so egregiously harmful that he has not had a fair and impartial trial. See
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984 & 1985).
Article 38.23 provides that a jury is to be instructed to resolve factual
disputes regarding whether evidence was obtained illegally and, therefore,
inadmissible. TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005); Madden v.
State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007). A defendant’s right to the
20 submission of jury instructions under article 38.23 is limited to disputed fact issues
that are material to her claim of a constitutional or statutory violation that would
render evidence inadmissible. Madden, 242 S.W.3d at 510. Facts are material
only when they are essential in deciding the lawfulness of the challenged conduct.
Id. (stating that if other undisputed facts are sufficient to support lawfulness of
challenged conduct, then disputed fact issue not material to ultimate admissibility
of evidence and no instruction required). When no disputed material factual issue
is raised by the evidence, the trial court acts properly in refusing a request to
charge the jury and the legality of the conduct is determined as a question of law
by the trial court. Id.
Vierling argues that she was entitled to the article 38.23 instruction because
the evidence raised a disputed material fact (i.e., whether her driving supported
Gens’s reasonable suspicion that she failed to maintain a single lane and that she
left the lane unsafely). Vierling further argues that the erroneous jury charge given
caused her egregious harm because it misstated the law and the disputed facts,
thereby precluding a valid finding beyond a reasonable doubt that the stop and her
resulting arrest were lawful.
Gens testified that while he was following her, Vierling’s multiple violations
included driving to the left of a payment stripe designating a no-passing zone and
failing to maintain a single, marked lane. The dashboard-mounted camera video
21 the jury watched showed Vierling’s car made a wide right turn, and crossed over a
yellow pavement stripe, and both of the car’s driver-side tires drove to the left of
that yellow stripe for several seconds. These undisputed facts illustrate the traffic
violation that Gens’s witnessed. See TEX. TRANSP. CODE ANN. § 545.055(b)
(stating driver may not drive on left side of any pavement striping marking
no-passing zone). Therefore, Gens had probable cause to believe that a traffic
violation had occurred and the stop was lawful. See Walter v. State, 28 S.W.3d
538, 542 (Tex. Crim. App. 2000) (stating that law enforcement officer may
lawfully stop motorist when officer has probable cause to believe that traffic
violation occurred).
Because the record reflects that the stop was supported by at least this one
violation—traversing a no-passing stripe—and those facts are not disputed, other
infractions (maintaining a single lane, leaving the lane unsafely, etc.) are
immaterial with respect to the ultimate admissibility of the evidence discovered as
a result of the traffic stop. Vierling, therefore, was not entitled to an article 38.23
instruction. See Madden, 242 S.W.3d at 510 (stating that if other undisputed facts
are sufficient to support lawfulness of challenged conduct, then disputed fact issue
is not material to ultimate admissibility of evidence and no instruction is required).
As such, the stop’s legality was not a factual question for the jury, but a question of
law for the court to decide. Id.
22 We overrule Vierling’s fifth issue.
F. Improper Jury Argument
Vierling’s sixth issue contends that an improper jury argument by the State
tainted the presumption of her innocence. Specifically, she argues that the State
commented at length during its closing argument about her failure to call any
witnesses to testify about her alleged stalker, and thus, attempted to shift the
burden of proof to her. Vierling concedes that she lodged no objection to these
comments at trial, but maintains that because the comments tainted the
presumption of her innocence, error was preserved even absent an objection. See
Blue v. State, 41 S.W.3d 129, 133 (Tex. Crim. App. 2000) (plurality opinion
holding that no objection was required to preserve error with respect to comments
that tainted presumption of innocence and amounted to fundamental error of
constitutional dimension); see also TEX. R. EVID. 103(d) (allowing appellate courts
to take notice of fundamental errors affecting substantial rights). Even if the Blue
plurality opinion was binding precedent, the State’s comments here did not rise to
the level of fundamental error. See Bible v. State, 162 S.W.3d 234, 249 (Tex.
Crim. App. 2005) (stating that it is “well-settled” that State may comment on
defendant’s failure to call certain witnesses and that such comments are not
impermissible attempt to shift burden of proof); Jasper v. State, 61 S.W.3d 413,
421 (Tex. Crim. App. 2001) (stating that plurality opinion in Blue is not binding
23 precedent).
We overrule Vierling’s sixth issue.
G. Interlock Device
Vierling contends in her sixth issue that the trial court abused its discretion
by improperly intruding upon the plea-bargain process and imposing a condition of
probation not previously agreed upon by the State and defense. Specifically, that
by requiring an Interlock device to be installed on any vehicle that Vierling
operated for a minimum of three months, the trial court exceeded the agreed
community supervision she had reached with the State. Vierling, however, did not
object at the time of her sentencing hearing to this new, additional condition. By
failing to object, she failed to preserve error. See TEX. R. APP. P. 33.1(a); Moore v.
State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009).
We overrule Vierling’s seventh issue.
Conclusion
We affirm the judgment of the trial court.
Jim Sharp Justice
Panel consists of Justices Keyes, Bland, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b). 24