ACCEPTED 06-14-00109-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 3/23/2015 10:55:58 PM DEBBIE AUTREY CLERK
NO. 06-14-00109-CR
FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS IN THE COURT OF APPEALS 3/23/2015 10:55:58 PM SIXTH DISTRICT OF TEXAS DEBBIE AUTREY AT TEXARKANA Clerk
MARLO DONTA PERSONS, APPELLANT v.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 354th Judicial District Court Of Hunt County, Texas Trial Court Cause No. 29,371 Honorable Richard A. Beacom, Judge Presiding
APPELLANT’S BRIEF
Elisha M. Hollis (SBN 24083189) 2608 Stonewall Street P. O. Box 1535 Greenville, Texas 75403 Tel. (903)450-2473 Fax (903)200-1290 Email: ElishaHollis@gmail.com
ORAL ARGUMENT NOT REQUESTED IDENTITIES OF PARTIES AND COUNSEL
Appellant: Marlo Donta Persons
Defense Counsel at Trial: Mr. Daniel J. O’Brien 131 North Ludlow Street Talbott Tower, Suite 1210 Dayton, OH 45402
Mr. Scott A. Cornuaud 2611 Lee Street Greenville, TX 75401
Appellant’s Attorney on Appeal: Mr. Elisha M. Hollis 2608 Stonewall Street PO Box 1535 Greenville, TX 75403
Appellee’s Attorney at Trial: Ms. Lauren Hudgeons Assistant District Attorney Hunt County District Attorney 2507 Lee Street, 4th Floor Greenville, TX 75401
Appellee’s Attorney on Appeal: Ms. Lauren Hudgeons Assistant District Attorney Hunt County District Attorney 2507 Lee Street, 4th Floor Greenville, TX 75401
Trial Judge: Hon. Richard A. Beacom 354th Judicial District Court 2507 Lee Street, 3rd Floor Greenville, TX 75401
2 TABLE OF CONTENTS
Identities of the Parties and Counsel .......................................................................... 2
Table of Contents ....................................................................................................... 3
Index of Authorities ................................................................................................... 5
Statement of the Case................................................................................................. 6
Issues Presented ......................................................................................................... 7
Statement of the Facts ................................................................................................ 7
Issues and Authorities .............................................................................................. 11
I. 38.23 Instruction .......................................................................................... 11
A. The Trial Court Erred in Not Granting Appellants Request for an
Art. 38.23 Instruction .................................................................................. 11
i. Appellant met his three part burden at trial to warrant an Art.
38.23(a) instruction concerning the allegation of an obstructed
license plate ............................................................................................ 13
a. Factual Dispute Prong ................................................................ 13
b. “Affirmatively Contested” Prong .............................................. 14
c. Material Issue Prong ................................................................... 14
ii. Appellant met his three part burden at trial to warrant an Art.
38.23(a) instruction concerning the allegation of following too close
to another vehicle .................................................................................. 15
3 a. Factual Dispute Prong ................................................................ 16
b. “Affirmatively Contested” Prong .............................................. 16
c. Material Issue Prong ................................................................... 20
B. The trial court’s improper refusal to grant the Appellant’s request
for an Art. 38.23 Instruction is reversible error ....................................... 20
Prayer ....................................................................................................................... 22
Certificate of Service ............................................................................................... 23
Certificate of Compliance with Rule 9.4 ................................................................. 24
4 INDEX OF AUTHORITIES STATE CASES:
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985).................................... 19
Arline v. State, 721 S.W.2d 348 (Tex. Crim. App. 1986)........................................ 20
Atkinson v. State, 923 S.W.2d 21 (Tex. Crim. App. 1996)...................................... 10
Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996) ........................................ 19
Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) .................................... 10
Mendoza v. State, 88 S.W.3d 236 (Tex. Crim. App. 2002) ..................................... 10
Middleton v. State, 125 S.W.3d 450 (Tex. Crim. App. 2003) ................................. 10
STATE STATUTES:
Tex. Code Crim. Pro. Ann. Art. 38.23(a) ................................................................ 10
Tex. Trans. Code Ann. Art. 504.945(7)(b) .............................................................. 12
5 NO. 06-14-00109-CR
IN THE COURT OF APPEALS SIXTH DISTRICT OF TEXAS AT TEXARKANA
On Appeal from the 354th Judicial District Court Of Hunt County, Texas Trial Court Cause No. 29,371 Honorable Richard A. Beacom, Judge Presiding
TO THE HONORABLE COURT OF APPEALS:
NOW COMES counsel for appellant and respectfully submits this brief
pursuant to the rules of the Texas Rules of Appellate Procedure.
STATEMENT OF THE CASE
This is an appeal from the judgment and sentence in a criminal case in the
6 354th District Court in Hunt County, Texas. The Appellant was indicted on October
25, 2013 for Possession of cocaine in an amount of 400 grams or more.
Furthermore, the grand jury found that Appellant had used or exhibited a deadly
weapon during the commission of this offense. After entering a plea of Not Guilty,
Appellant elected to be tried and sentenced by a jury.
On June 05, 2014 the jury found Appellant guilty and assessed punishment at
fifty five (55) years in the Texas Department of Criminal Justice – Institutional
Division along with a fine of $25,000, $266.25 in court costs, and a $50 Crime
Stoppers fee. Appellant filed a notice of appeal on June 18, 2014.
ISSUES PRESENTED
ISSUE ONE: The trial court improperly denied the Appellant’s request for an
Art. 38.23(a) instruction to be included in the jury charge.
STATEMENT OF FACTS
Appellant, MARLO DONTA PERSONS (hereinafter, “Appellant”) was
indicted on October 25, 2013 for Possession of cocaine in an amount of 400 grams
or more (CR 7-8)1. Furthermore, the grand jury found that Appellant had used or
exhibited a deadly weapon during the commission this offense. (CR 7-8).
Appellant entered a plea of Not Guilty on Dec. 05, 2013(CR 10), and elected to be
1 References to the Clerk’s Record are designated as “CR #”, references to the Reporter’s Record are designated RR Vol. ___, page #: line #, and State and Defendant’s exhibits are designated SX and DX, respectively).
7 tried and sentenced by a jury on the same date. (CR 11).
On June 03, 2014, trial on the merits began. (RR vol. 7, 1:11-15). The State
called Zane Rhone, the arresting officer in this case. (RR vol. 7, 34:3-4). Officer
Rhone testified that on May 11, 2013 he was on patrol on I-30 East near
Greenville, Texas when he was passed by a car in which the Appellant was a
passenger. (RR vol. 7, 41:23-25; 43:2-7). Appellant’s vehicle was traveling right
behind another vehicle and had out of state tags. (RR vol. 7, 43:15-19). Officer
Rhone pulled his car onto the roadway and caught up with the Appellant’s vehicle
to run the license plate number. (RR vol. 7, 44:20-22). Officer Rhone testified that
as he closed in on the Appellant’s vehicle which was driving in the left lane, it
merged into the right hand lane close behind another vehicle. (RR vol. 7, 45:5-8).
Officer Rhone determined that the Appellant’s vehicle was traveling at an unsafe
distance from another vehicle. (RR vol. 7, 45:8-10). He further testified that the
proper following distance between two vehicles at 70 miles per hour was at least
150 feet, and that Appellant’s vehicle was traveling much closer than that to the
vehicle in front of them. (RR vol. 7, 46:19-47:11).
Officer Rhone also testified that as he slowed down to pull in behind the
Appellant’s vehicle he realized that the Appellant’s vehicle had an obstructed
license plate. (RR vol. 7, 45:11-15). Officer Rhone then commenced a traffic stop
on Appellant’s vehicle which led to the discovery of 1,303 grams of cocaine. (RR
8 vol. 7, 76:11-13). Officer Rhone’s in-car video was admitted as State’s Exhibit No.
3B. (RR vol. 7, 91:8-10).
On cross examination of Officer Rhone, Appellant had the officer read into
the record Texas Transportation Code 504.945(a)(7)(B) requiring that at least 50%
of the name on the license plate be visible. (RR vol. 7, 142:19-24). Appellant also
extensively cross examined the officer concerning the license plate and the claim
that Appellant’s vehicle was traveling at an unsafe distance from another vehicle.
(RR vol. 7, 112:10-122:19).
In Appellant’s case-in-chief, Appellant called Officer Rhone to testify further
about the license plate and driving infraction. (RR vol. 8, 59:2-81:13). During this
time Appellant re-introduced Officer Rhone’s in-car video to the jury and played
the beginning sequence showing the initial stop multiple times. (RR vol. 8, 65:4;
67:4; 68:9; 71:10; 71:25; 74:6; 75:6; 77:6). Appellant questioned Officer Rhone
about the video, and specifically about where on the video the Appellant’s vehicle
was following another vehicle at an unsafe distance. (RR vol. 8, 79:1-80:12).
Officer Rhone stated that he did not dispute the fact that State’s Exhibit 3b was
“legitimate” and “captured everything that happened.” (RR vol. 8, 79:10-13).
Furthermore, Officer Rhone stated that the Appellant’s act of following too closely
to the vehicle in front of him should be viewable on the tape (RR vol. 8, 79:14-17),
and that the jury would be able to see the offense. (RR vol. 8, 80:6-12).
9 Appellant also called Mack Woodard as a witness. (RR vol. 8, 30:5-8). Mr.
Woodard testified that he was the owner of the vehicle that Appellant was riding in
at the time of his arrest. (RR vol. 8, 32:23-33:23). Mr. Woodard testified clearly
that the license plate bracket on the back of Appellant’s vehicle was the same one
shown in DX 6 (RR vol. 8, 38:16-39:8) and DX 7. (RR vol. 8, 42:3-22). He also
testified that he could see at least 50% of the name on the license plate. (RR vol. 8,
45:18-20).
At the charging conference, Appellant requested an Art. 38.23(a) instruction
concerning the obstructed license plate and the allegation of driving at an unsafe
distance from another vehicle. (RR vol. 9, 41:10-43:11). The Court agreed that a
fact issue was created as to the obstructed license plate issue. (RR vol. 9, 41:10-
18). But, the Court did not believe there was a fact issue concerning the alleged
offense of following too close to another vehicle, or that any affirmative evidence
contesting that issue had been presented by the Defense. (RR vol. 9, 42:1-7).
Appellant argued that there was a fact issue presented concerning the driving too
close allegation, and that the video (SX3B) and Officer Rhone’s testimony was
affirmative evidence contesting that allegation. (RR vol. 9, 42:10-43:11). The
Court denied the Appellant’s request for an Art. 38.23 instruction. (RR vol. 9,
45:24-25). Thereafter, the Jury found Defendant guilty of possession of cocaine in
an amount of 400 grams or more, and that he used or exhibited a weapon during
10 the commission of that offense (RR vol. 9, 101:22-102:5).
ISSUES AND AUTHORITIES
I. 38.23 Instruction
A. The trial Court erred in not granting the Appellant’s request for an Art.
38.23(a) Instruction.
The Code of Criminal Procedure Article 38.23(a) states in pertinent part that:
“In any case where the legal evidence raises an issue hereunder, the jury
shall be instructed that if it believes, or has a reasonable doubt, that the
evidence was obtained in violation of the provisions of this Article, then and
in such event, the jury shall disregard any such evidence so obtained.” Tex.
Code Crim. Proc. Ann. Art. 38.23(a). The terms of Art. 38.23(a) are
mandatory in nature and grant a statutory right to the defendant. Mendoza v.
State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002). But for this right to
attach to a defendants case, there must be a factual dispute regarding the
legality of the seizure or other act causing evidence to be obtained illegally.
Atkinson v. State, 923 S.W.2d 21, 23 (Tex. Crim. App. 1996). “In such
event, the judge must include in his final charge” a 38.23(a) instruction. Id.
Emphasis added.
In Madden v. State, The Court of Criminal Appeals has set out a three
part test for determining whether or not to include a 38.23(a) instruction. 242
11 S.W.3d 504, 510 (Tex. Crim. App. 2007). In Madden, the defendant was
convicted of possession of cocaine after being denied a 38.23(a) instruction
concerning his delayed detention. Id. at 505. At trial, the defendant in
Madden argued that a 38.23(a) instruction was proper on the issue of
speeding and on the issue of a delayed detention. Id. at 508. The trial court
agreed that there was a factual issue presented concerning the defendant’s
speed because, although the defendant did not testify, the defendant could be
heard on the police video arguing with the officer about whether he was
speeding. Id. But, the trial court denied any 38.23(a) instruction concerning
the delayed detention. Id. The Court of Appeals reversed the trial court on
the 38.23(a) issue believing that there was a factual dispute concerning the
delayed detention. Id. at 509. The Court of Criminal Appeals granted review
to determine what evidence is necessary to create a fact issue requiring a
38.23(a) instruction. Id.
On Review, the Court of Criminal Appeals sought “to clarify what type
of evidence suffices to raise a disputed material fact issue that requires the
submission of a jury instruction under Article 38.23(a).” The Court of
Criminal Appeals affirmed the trial court’s ruling finding that the delayed
detention issue was not a factual issue but a legal issue and therefore the trial
court was right not to grant a 38.23(a) instruction. Id. at 511. In coming to
12 this conclusion, the Court of Criminal Appeals set out a three prong test to
determine if an instruction is required under Art. 38.23(a):
(1) The evidence heard by the jury must raise an issue of fact; (2) The evidence on that fact must be affirmatively contested; and (3) That contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Id. at 510.
i. Appellant met his three part burden at trial to warrant an Art. 38.23(a) instruction concerning the allegation of an obstructed license plate.
a. Factual Dispute Prong
In the case at hand, the Appellant was alleged to have committed two
offenses leading to his detention and arrest: 1) driving with an obstructed license
plate and 2) traveling at an unsafe distance from another vehicle. (RR vol. 7, 45:8-
15). Concerning the obstructed license plate, the trial court agreed that a 38.23(a)
instruction would be proper, but denied any instruction since it believed that there
was no factual dispute concerning the unsafe distance issue. (RR vol. 9, 41:19-24).
The trial Court was correct in finding that a 38.23(a) instruction would be proper
concerning the obstructed license plate.
First, the evidence presented to the jury at trial clearly raised a fact issue
concerning whether or not the license plate was obstructed. Officer Rhone read
Texas Transportation Code 504.945(a)(7)(B) into the record (RR vol. 7, 142:19-
24) which states in pertinent part that “A person commits an offense if the 13 person…has a coating, covering, protective substance, or other material
that…alters or obscures one-half or more of the name of the state in which the
vehicle is registered...” Tex. Trans. Code. Ann. Art. 504.945(7)(b). He then
testified that the license plate was obstructed on the car in which the Appellant was
riding. (RR vol. 7, 45:11-15). The Appellant rebutted this testimony by presenting
pictures of the license plate (DX 6, DX7) and by calling Mack Woodard who
testified that he could see at least 50% of the name on the license plate based on
pictures of the license plate when the vehicle was taken out of impound. (RR vol.
8, 45:18-20). Thus, the jury was presented with facts concerning whether there was
or was not an obstructed license plate on Appellant’s vehicle, and a fact issue was
sufficiently raised.
b. “Affirmatively Contested” Prong
Second, the evidence concerning the obstructed license plate issue was
affirmatively contested by the Appellant. In Madden, the court found the
defendant’s speed to be a contested fact because the defendant could be heard on
the officer’s video arguing with the officer about whether he was actually
speeding. 242 S.W.3d at 511. In the present case, Appellant presented testimony
that conflicted with the arresting officer’s testimony concerning whether the
license plate was obstructed. Appellant also presented exhibits showing the license
plate as it was at the time of the offense. Thus, Appellant affirmatively contested
14 the issue of whether the vehicle at issue had an obstructed license plate.
c. Material Issue Prong
The third prong of Madden has also been met in this case because the
issue of an obstructed license plate was “material to the lawfulness of the
challenged conduct in obtaining the evidence.” Id. at 510. The stop in this
case which led to the discovery of the cocaine which the Appellant was
charged with possessing was based on an obstructed license plate and
following to close to another vehicle. (RR vol. 7, 45:8-15). Since either one
of these violations can be used individually to legitimate a traffic stop, both
would have to be invalidated in order for evidence to be suppressed under
Art. 38.23(a). The trial Court correctly pointed this out in determining
whether to issue such an instruction in this case. (RR vol. 9, 41:19-24). The
issue of driving too close to another vehicle will be taken up in the next
section. But considering the obstructed license plate issue alone, if it was not
obstructed under the law, then the officer would not have had the right to
stop the Appellant. Thus, the obstructed license plate is material to the
challenged stop.
ii. Appellant met his three part burden at trial to warrant an Art. 38.23(a) instruction concerning the allegation of following too close to another vehicle.
15 a. Factual Dispute Prong
The trial Court believed that there was no factual dispute concerning
the unsafe distance issue. (RR vol. 9, 41:19-24). Under the Madden case, the
trial Court’s determination was wrong. First, the evidence presented to the
jury at trial clearly raised a fact issue concerning whether or not the vehicle
the Appellant was riding in was following another vehicle at an unsafe
distance. The arresting officer testified that Appellants vehicle was traveling
at an unsafe distance from another vehicle. (RR vol. 7, 45:8-10). He also
testified that at the speed Appellant was traveling, he needed at least 150 feet
between his vehicle and the next vehicle. (RR vol. 7, 46:19-47:11).
Appellant pointed the jury to the officer’s video to look at how close the
Appellant’s vehicle was to the vehicle they were following. (RR vol. 8, 79:1-
80:12). The jury was able to see how close Appellant’s vehicle was traveling
to the next vehicle and determine whether the officer’s testimony was
correct. The distance between the vehicles was thus a factual dispute
concerning measurable distances.
Second, the evidence concerning how close the Appellant’s vehicle
was to the vehicle in front of it was affirmatively contested by the Appellant.
According to the court in Madden, “[t]o raise a disputed fact issue
16 warranting an Article 38.23(a) jury instruction, there must be some
affirmative evidence that puts the existence of that fact into question.” 242
S.W.3d at 513. In the present case, the Appellant presented the officer’s in-
car video to the jury to contest the officer’s claim that the Appellant’s
vehicle was following to close to another vehicle. (RR vol. 8, 79:1-80:12).
By doing this, the Appellant brought the officer’s testimony into question,
and presented the jury with affirmative evidence concerning whether the
Appellant’s vehicle was actually traveling to close to the next vehicle.
It may be argued, and the trial Court in this case clearly believed, that
under Madden the officer’s video is not sufficient in itself to affirmatively
contest an issue. In Madden, concerning the first issue of speeding, the Court
of Criminal Appeals agreed with the trial court in granting a 38.23(a)
instruction on that issue where the defendant could be heard on the officer’s
video disputing his speed. 242 S.W.3d at 11. This alone shows that a video
can be affirmative evidence in itself.
On the second issue regarding the delayed detention, the court in
Madden ultimately found it unnecessary to grant a 38.23(a) instruction
because the challenged conduct was concerning “reasonable suspicion”
which is a legal issue instead of a fact issue. Id. But in discussing what
counts as conflicting evidence the court examined the defendant’s argument
17 that the video and the cross-examination questions asked by the defendant’s
attorney were enough to raise a disputed issue of fact. Id. at 515. The court
stated that cross-examination questions were not enough to rise to the level
of affirmative evidence contesting the issue. Id. The court did not state that
the video in itself was not affirmative evidence though. The court found that
there was no evidence the video contradicted the officer’s testimony. Id. at
516. Apparently, though the court could not watch the in-car video, there
was evidence in the record that the video was low quality and did not “show
much of anything with clarity.” Id. The court stated that “Only if the video
clearly showed that appellant affirmatively did not do something that
Trooper Lily said that he did do, and the video clearly would have shown
that conduct if it had occurred, would there be some affirmative evidence of
a disputed historical fact.” Id. Thus, the court in Madden did not hold that
there must be contradictory testimony for a fact to be affirmatively
contested, or that an officer’s in-car video was not able to affirmatively
contest a factual issue on its own. See Id. In fact, it is clear from a reading of
Madden that the Court of Criminal Appeals would have considered the
officer’s video as affirmative evidence if a fact issue would have been
presented instead of a legal issue, and if the video had clearly shown the
facts to be contested. See. Id.
18 Applying the facts and holding of Madden to the present case, the in-
car video presented to the jury by the Appellant affirmatively disputed the
factual issue of whether the Appellant’s vehicle was traveling too close to
another vehicle. Whether the Appellant’s vehicle was driving at an unsafe
distance from the vehicle in front of it is a factual determination concerning
measurable distances, and it is clearly viewable on Officer Rhone’s in-car
video that was admitted into evidence.(SX3B). There is no argument in this
case that the video didn’t show the entire stop including where the
Appellant’s vehicle was following too close to another vehicle. The arresting
officer watched the relevant parts of the video at the request of the
Appellant’s attorney, and testified that the offense of following too close
could be seen on the video. (RR vol. 8, 79:14-17). He specifically testified
that the jury would be able to see that the Appellant was traveling too close
to another vehicle in the in-car video. (RR vol. 8, 80:6-12). This same video
was played to the jury by the Appellant multiple times. (RR vol. 8, 65:4;
67:4; 68:9; 71:10; 71:25; 74:6; 75:6; 77:6). Thus, there was affirmative
evidence presented to the jury concerning this offense, enough so that the
jury would have been able to weigh the video against the officer’s testimony
to resolve the factual dispute of whether the Appellant committed the
offense alleged.
19 c. Material Issue Prong
Coming now to the third prong of the test set out in Madden, the
factual dispute concerning whether the Appellant traveled at an unsafe
distance from another vehicle is “material to the lawfulness of the
challenged conduct in obtaining the evidence.” 242 S.W.3d at 510. Both
traveling at an unsafe distance from another vehicle and having an
obstructed license plate are violations of the law which provide an officer
with probable cause for a temporary detention. If the jury was to find that the
Appellant had not violated these two laws, then the arresting officer would
not have had any legal reason to detain the Appellant. Thus, determining a
factual dispute regarding whether the Appellant had violated these two laws
would be material in determining whether the stop leading to the discovery
of evidence was in fact legal. Therefore it is material in determining whether
the contraband was legally seized in this case.
B. The trial court’s improper refusal to grant the Appellant’s request for
an Art. 38.23(a) Instruction is reversible error.
In considering issues concerning a jury charge, appellate courts must first
determine whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166,
170 (Tex. Crim. App. 1996). Once error is found, the appellate court must
determine whether harm occurred. Middleton v. State, 125 S.W.3d 450, 453 (Tex.
20 Crim. App. 2003). The level of harm required for reversal depends on whether the
error was objected to at trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985). If a timely objection is made to the alleged error, reversal is required
“only as long as the error is not harmless.” Id. Thus there must be some harm to the
appellant. Id. But, there is no set amount of harm that is required prior to reversal
because, “the presence of any harm, regardless of degree, which results from
preserved charging error, is sufficient to require a reversal of the conviction.”
Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).
In the present case, the Appellant both urged an Art. 38.23(a) instruction and
objected to the Court’s decision not to grant such an instruction. (RR vol. 9, 41:10-
43:11; 46:2-6). Thus, reversal should be determined by whether any harm
occurred. Arline, 721 S.W.2d at 351; Almanza, 686 S.W.2d at 171. The appellate
court should determine whether any harm occurred “in light of the entire jury
charge, the state of the evidence, including the contested issues and weight of
probative evidence, the argument of counsel and any other relevant information
revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171.
Considering the entire record in this case, the trial court’s refusal to grant an
Art. 38.23(a) instruction caused harm to the Appellant. By not granting such an
instruction, the jury was prohibited from considering facts made available to them
at trial thereby forcing them to come to a conclusion they may not have otherwise
21 come to. As to the obstructed license plate issue, the jury was presented with
testimony by Officer Rhone that the name on Appellant’s license plate was
obstructed. (RR vol. 7, 45:11-15), as well as conflicting testimony by Mack
Woodard. (RR vol. 8, 45:18-20). They were also presented with exhibits
purporting to show the state of the license plate at the time of Appellant’s arrest.
(DX 6, DX7). Thus, had the jury been presented with an Art. 38.23(a) instruction
concerning the obstructed license plate, they may have agreed that it was not
obstructed under the law.
In regards to the allegation of driving at an unsafe distance from another
vehicle, the jury was presented with testimony by Officer Rhone that the
Appellant’s vehicle was traveling at an unsafe distance from another vehicle. (RR
vol. 7, 45:8-10). They were also shown the officer’s in-car video to which the
officer agreed that the violation would be viewable by the jury. (RR vol. 8, 79:14-
17; 80:6-12). Thus, had the jury been granted an instruction under Art. 38.23(a)
they may have determined that the Appellant’s vehicle was not traveling at an
unsafe distance from another vehicle under the law. But, without such an
instruction, the jury was improperly prohibited from coming to a conclusion based
on the facts before them and the Appellant suffered harm.
CONCLUSION AND PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that his
22 judgment in the above entitled and numbered cause be reversed and rendered.
Appellant further prays for all other lawful relief to which he may be entitled, at
law or in equity.
Respectfully submitted,
By: /s/ Elisha Hollis Elisha Hollis
The Law Office of Elisha Hollis PO Box 1535 Greenville, Texas 75403 903-450-2473 (ph) 903-200-1290 (fax) ElishaHollis@gmail.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Appellant’s Brief was served on
the Honorable Noble Walker, Hunt County District Attorney, P.O. Box 441,
Greenville, Texas 75403-0441 on this the 23rd day of March, 2015.
I further certify that a true and correct copy of Appellant’s Brief was sent by
first class United States mail, postage prepaid to MARLO DONTA PERSONS,
TDJC#1939454, Eastham Unit, 2665 Prison Rd. #1, Lovelady, TX 75851 on this
the 23rd day of March, 2015.
/s/ Elisha Hollis Elisha Hollis
23 CERTIFICATE OF COMPLIANCE WITH RULE 9.4
Pursuant to Texas Rule of Appellate Procedure 9.4, this certifies that this
document complies with the type volume limitations because it is computer
generated and does not exceed 15,000 words. Using the word count feature of
Microsoft Word, the undersigned certifies that this document contains 3,757 words
in the entire document, except in the following sections: caption, identities of
parties and counsel, statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of issues presented, signature,
certificate of service and certificate of compliance. This document also complies
with the typeface requirements as it has been prepared in a proportionally spaced
typeface using Microsoft Word in 14-point Times New Roman.