PD-1005-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 8/5/2015 11:43:34 AM No. __________________ Accepted 8/6/2015 4:11:53 PM ABEL ACOSTA CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS Donna Marie Pryor Appellant AUGUST 6, 2015 v. The State of Texas Appellee On Appeal from the 207th District Court of Comal County in Case No. CR2012-208, the Hon. Jack Robison, Judge Presiding; and the Opinion of the Third Court of Appeals in Case No. 03- 13-00347-CR, Delivered May 1, 2015.
Petition For Discretionary Review
Submitted by: John G. Jasuta David A. Schulman Attorney at Law Attorney at Law lawyer1@johngjasuta.com zdrdavida@davidschulman.com State Bar Card No. 10592300 State Bar Card No. 17833400
1801 East 51st Street, Suite 365-474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282 Attorneys for Donna Marie Pryor Identity of Parties and Counsel Pursuant to Rule 38.1(a), Rules of Appellate Procedure (“Tex.R.App.Pro.”), the following is a complete list of the names and addresses of all parties to the trial court’s final judgment and their counsel in the trial court, as well as appellate counsel, so the members of the Court may at once determine whether they are disqualified to serve or should recuse themselves from participating in the decision of the case and so the Clerk of the Court may properly notify the parties to the trial court’s final judgment or their counsel, if any, of the judgment and all orders of the Court of Appeals.
Appellant Donna Marie Pryor TDCJ No. 01859201 Trial Counsel Appellate Counsel Philip A. Perez David A. Schulman SBN 24048722 SBN 17833400 110 Broadway, Suite 444 John G. Jasuta San Antonio, Texas 78205 SBN 10592300 1801 East 51st St., Ste 365-474 Austin, Texas 78723
State of Texas Jennifer Tharp Lisa McMinn District Attorney State Prosecuting Attorney 150 North Seguin St., Ste 307 SBN 13803300 New Braunfels, Texas 78130 Post Office Box 13046 Austin, Texas 78711 Trial Counsel Sammy McCrary SBN 90001990
Appellate Counsel Joshua Presley SBN 24088254 Clay Hearrell SBN 24059919
i Table of Contents
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . v
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . v
Facts of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Ground for Review Restated. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Court of Appeals Erred by Conducting an Incomplete Review of the Facts and the Law.
Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Summary of the Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Arguments & Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Certificate of Compliance and Delivery. . . . . . . . . . . . . . . . . . 15
ii Index of Authorities
Texas Cases:
Guerrero v. State, 305 S.W.3d 546 (Tex.Cr.App. 2009). . . . . . 7
Jones v. State, 493 S.W.2d 933 (Tex.Cr.App. 1973). . . . . . . 11
Madden v. State, 242 S.W.3d 504 (Tex.Cr.App. 2007).. . . . . . 5
Mahaffey v. State, 316 S.W.3d 633 (Tex.Cr.App. 2010). . . . 13
Pryor v. State, 03-13-00347-CR (Tex.App. - Austin; May 1, 2015).. . . . . . . . . . . . . vi, 5, 7, 8
Robinson v. State, 377 S.W.3d 712 (Tex.Cr.App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
Sharp v. State, 495 S.W.2d 906 (Tex.Cr.App. 1973). . . . . . . 11
State v. Duran, 396 S.W.3d 563 (Tex.Cr.App. 2013). . . . . . . . 5
Trahan v. State, 16 S.W.3d 146 (Tex.App - Beaumont 2000) . . . . . . . . . . . . . . . . . . . . . . 13
Vennus v. State, 282 S.W.3d 70 (Tex.Cr.App. 2009). . . . . . . 11
Texas Statutes / Codes:
Code of Criminal Procedure
Article 38.23... . . . . . . . . . . . . . . . . . . . . . . . . . . v, 11
iii Index of Authorities (CONT)
Texas Statutes / Codes (CONT):
Penal Code
Section 49.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Section 49.09(b)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . v
Transportation Code
Section 545.104(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Rules of Appellate Procedure
Rule 38.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Rule 66.3(f) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
iv Statement Regarding Oral Argument
Because of complexity of the expert witness issue involved,
the undersigned believe that oral argument will benefit the parties
and assist the Court. Appellant therefore requests the opportunity
to present oral argument in this case.
Statement of the Case
This case involves the question of what constitutes a “factual
dispute” withing the meaning of Article 38.23, C.Cr.P., and when
a trial court is required to instruct the jury pursuant to that
article.
Statement of Procedural History
A jury found Appellant guilty of driving while intoxicated with
two previous similar convictions, a third-degree felony under Penal
Code §§ 49.04 and 49.09(b)(2). After finding that Appellant had
previously been convicted of three additional felonies, the jury
assessed punishment at 99 years’ imprisonment, and the trial
court rendered judgment on the jury’s verdict. Notice of Appeal
was timely given on May 15, 2013.
v The Court of Appeals’ opinion from which review is sought
was delivered by the Third Court of Appeals in Pryor v. State,
03-13-00347-CR (Tex.App. - Austin; May 1, 2015). Motion for
rehearing was timely filed, but denied on July 6, 2015. This
petition is timely filed if presented to the Clerk of the Court on or
before August 5, 2015.
vi No. ____________________ IN THE COURT OF CRIMINAL APPEALS OF TEXAS Donna Marie Pryor Appellant v. The State of Texas Appellee On Appeal from the 207th District Court of Comal County in Case No. CR2012-208, the Hon. Jack Robison, Judge Presiding; and the Opinion of the Third Court of Appeals in Case No. 03-13- 00347-CR, Delivered May 1, 2015.
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Donna Marie Pryor, Appellant in the above
styled and numbered cause, by and through David A. Schulman
and John G. Jasuta, her undersigned attorneys of record, and
respectfully files her “Petition for Discretionary Review,” and would
show the Court as follows:
Facts of the Case (From the Opinion of the Court of Appeals)
At trial, a deputy with the Comal County Sheriff’s Office testified concerning the traffic stop that led to Pryor’s arrest. According to the deputy, he stopped Pryor after observing her make a turn without signaling for at least 100 feet before turning, a violation of law. See Tex. Transp.
1 Code § 545.104(b). The deputy further testified that he administered standardized field sobriety tests, determined that Pryor was intoxicated, and arrested her. The State also produced a video of the encounter recorded by the deputy’s in-car camera, which the trial court admitted.
Ground for Review Restated
The Court of Appeals Erred by Conducting an Incomplete Review of the Facts and the Law.
Relevant Facts
Appellant was stopped and interrogated while driving. This
allegedly occurred because she did not signal her intention to
make a turn at least 100 feet prior to a turn she actually made (RR
Vol. 3, PP. 25-26, 33-36).
Appellant did not testify at trial. A video from the deputy’s
in-car camera (State’s Exhibit #3), however, was introduced into
evidence (RR Vol. 3, P. 60). No other evidence of the traffic stop
was before the jury. There were, therefore, two separate and
distinct sources of information regarding whether or not Appellant
violated the law such as to allow the deputy’s intervention: Î the
deputy’s testimony, and Ï State’s Exhibit #3.
2 Appellant requested the jury be instructed on the law of
Article 38.23, C.Cr.P., with regard to the legality of the stop. The
trial court refused that request (RR Vol. 3, PP. 149-155). The
lower court affirmed the conviction and the failure of the trial
court to correctly charge the jury.
Summary of the Argument
The Court of Appeals erred by avoiding the facts as shown,
minimizing them and, in so doing, conducted an incomplete review
of both the facts and the law, resulting in error as to both.
Arguments & Authorities
The Court of Appeals erred in its opinion by minimizing or
omitting entirely any mention of crucial evidence shown in the
video recording of the traffic encounter which demonstrated the
existence of a fact issue. This failure on the part of the Court
below resulted in an incomplete and inadequate review of the
evidence supporting the necessity for submission of the issue of
the legality of the traffic stop to the jury pursuant to Article 38.23,
C.Cr.P., as requested at trial, and required on appeal.
3 Corporal Mueck, the deputy who made the traffic stop which
led to his discovery of evidence of intoxication, testified that he
made the stop because Appellant had failed to signal her intention
to turn from one highway to another for at least 100 feet (RR Vol.
3, PP. 2-33), a violation of section 545.104(b) of the Transportation
Code.1 As the deputy’s “in-car camera” video (State’s Exhibit #3)
was admitted into evidence, the record contained evidence which
a reasonable trier of fact could determine contradicted Mueck’s
testimony, and constituted evidence which would have allowed the
jury to test the truthfulness and reasonableness of the deputy’s
assertion as to at which point Appellant activated her turn signal,
and the length of travel from that point until she actually began
the turn. The Court of Appeals ignored this evidence, disguising
it by minimization.
Initially, the Court of Appeals recognized the issue before it.
Nevertheless, it failed to recognize the difference between the cases
upon which it relied and the case at bar, in which the
1 “An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.”
4 reasonableness of the deputy’s belief is easily ascertainable. The
Court of Appeals wrote:
Although Pryor argues that the video raises a fact question as to whether she signaled at least 100 feet before turning, the material question is whether the deputy had reasonable suspicion that she had violated the law. See Madden, 242 S.W.3d at 516 (“The real factual issue is whether Trooper Lily reasonably believed that appellant was acting in a nervous manner, not whether the videotape shows appellant acting in a nervous manner.”); see also State v. Duran, 396 S.W.3d 563, 568 (Tex. Crim. App. 2013) (“An officer must have reasonable suspicion that some crime was, or is about to be, committed before he may make a traffic stop.”).
Pryor, slip op. at 3. In the case at bar, unlike Madden v. State,
242 S.W.3d 504 (Tex.Cr.App. 2007), referred to by the court below,
the issue of whether the officer had a reasonable suspicion or
belief was easily resolved by a fair viewing of the video evidence.
The question is whether the members of the jury could have
believed that the turn signal was operating continuously for 100
feet prior to the Appellant actually making her intended turn.
Madden, 242 S.W.3d at 516; State v. Duran, 396 S.W.3d 563,
568 (Tex.Cr.App. 2013).
Deputy Muck was obviously confused regarding the
requirements of the law during trial, as evidenced by his
announced decision to effect a traffic stop, while both he and
5 Appellant were stopped at the traffic signal. See (RR Vol. 3, PP.
150-152, 154). The fact that the vehicle moved for some distance
after the change of the traffic signal and prior to making the turn
was not factored into either the discussion or the decision to reject
the charge. The prosecutor did not explain the markers he used
to determine his opinion that, “Clearly it is not 100 feet. If you
watch the video, there is . . ..” (RR Vol. 3, P. 154). Nevertheless,
in deciding whether the jury should have evaluated the video
evidence, it should be presumed that the jury would have been
correctly charged on the correct definition of “turn,” including
when such a “turn” is made under the law and the requirement to
signal until the turn, and not the intersection.
Additionally, the lower court mis-described the video when it
continued:
Having reviewed the video, we conclude that the video does not clearly show that it was unreasonable for the deputy to suspect that Pryor had violated the law by failing to signal for at least 100 feet before turning. The video shows Pryor activate her turn signal, move forward a bit, stop at a traffic light, and then turn left. But the video does not indicate precise distances, nor does it show Pryor signaling so far in advance that it would have been unreasonable for the officer to believe she had violated the law.
6 Pryor, slip op. at 3-4 (footnote omitted). The phrases used by the
court, “move forward a bit,” and “and then turn left,” are
inaccurate, misleading and minimize the evidence beyond
description.
The jury had two sources of information regarding whether or
not Appellant violated the law such as to allow the deputy’s
intervention, the deputy’s testimony and State’s Exhibit #3, the
video which the deputy’s in-car camera recorded (RR Vol. 3, P. 60).
That evidence must be fairly viewed both from the perspective of
what the video showed and the requirements of the law, if for no
other reason than to ensure due process rights to a fair appeal --
something the Court of Appeals did not do -- but should have.
Due process of law is a part of the appellate process. See Guerrero
v. State, 305 S.W.3d 546, 561 (Tex.Cr.App. 2009).
By its incomplete review of both the facts, clearly shown on
the video, and the law, Appellant submits, the Court of Appeals
violated Appellant’s right to due process of law. It has so far
departed from the accepted and usual course of judicial
7 proceedings such as to call for the exercise of this Court’s power
of supervision, as provided in Rule 66.3(f), Tex.R.App.Pro.
A truly fair viewing of the evidence would show that the video
clearly demonstrated a factual issue which could only be resolved
by interpretation of the video. There were no side-of-the-road
markers showing the distances between various points but there
were physical objects shown from which inferences about
distances could have been drawn. The Court of Appeals’ holding,
however, does not discuss the presence of those markers and their
potential to allow resolution of the factual issue. Instead, the
Court marginalized the evidence by its dismissive language, and,
in so doing, ignored its importance.
At oral argument before the Court of Appeals, both Appellant
and the State utilized visual aids. Appellant offered two aerial
photographs showing the intersection. They are included as
Exhibits “B” and “C” in the appendix.
The Court rejected Appellant’s request that it take judicial
notice of the photographs. Pryor, slip op. at 4, FN 2. In its
8 rejection the Court described the photographs as “allegedly”
showing the intersection, despite the State’s failure to object to
them; and despite the State’s offer of a photograph of the same
intersection, albeit with a distance scale included. Despite the
Court of Appeals’ failure to see the relevant nature of the
photographs provided by Appellant, both did show precisely that
which was depicted on the video, and demonstrated the reason the
fact issue should have been presented to the jury as requested.
In fact, the video showed that the automobile crossed an
asphalt to concrete demarcation on the pavement at the time the
turn signal was turned on. Five seconds later the car stopped in
front of the crosswalk area of the intersection, where it sat for
twenty-seven seconds with its turn signal continuously flashing.
The distance between the pavement demarcation and the
crosswalk area, as shown in the video, is an estimable distance
and could easily have been three to five car lengths, a distance of
thirty-five to fifty feet. The Court, however, inaccurately wrote,
9 “move forward a bit,” in its effort to minimize the evidence. A truly
fair viewing of the video, however, would have shown even more.
Such a fair viewing of the video’s audio portion would reveal
the deputy made his decision to stop the vehicle at the time
Appellant was stopped at the traffic signal controlled intersection,
some distance before the turn prior to which signaling is required,
and at a time at which the deputy could not know whether a turn
would actually be made. That the turn which was actually made
could have been legally made after one additional lane from that
which was made, adding yet more distance, was a fact the deputy
could not foresee and did not consider, much like the fact that,
had no turn been made, no violation would have occurred.
When Appellant proceeded, following the signal change to
green, the video plainly showed the automobile crossing the
crosswalk area, and then four lanes of traffic, three of which were
on-coming, along with a center median with support poles holding
10 the Highway 281 bridge, all before she made the turn.2 That took
eight seconds of video time, yet the Court described it as, “and
then turn left.”
The only real question is whether there was a factual dispute.
The answer to that question is “absolutely.” The in-car video does
nothing but demonstrate that truth, and minimizing the facts only
serves to conceal it. The truth of the video was mis-described in
the opinion of the court below to the extent that the requirements
of the law were avoided.
It has long been the law that questions of law need not be
submitted to the jury pursuant to Article 38.23, C.Cr.P. Sharp v.
State, 495 S.W.2d 906, 908 (Tex.Cr.App. 1973). For just as long,
the law has required questions of fact to be submitted to the jury,
upon the defendant’s request. See Jones v. State, 493 S.W.2d
933, 936 (Tex.Cr.App. 1973); see also Vennus v. State, 282
S.W.3d 70, 80 (Tex.Cr.App. 2009).
2 Perhaps one of the jurors would have known, or could have determined from the video evidence, that the average width of a lane on a Texas highway is twelve feet.
11 This Court has held:
When evidence presented before the jury raises a question of whether the fruits of a police-initiated search or arrest were illegally obtained, “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.”
Robinson v. State, 377 S.W.3d 712, 719 (Tex.Cr.App. 2012). The
Court continued, stating that the defendant must show:
(1) an issue of historical fact was raised in front of the jury; (2) the fact was contested by affirmative evidence at trial; and (3) the fact is material to the constitutional or statutory violation that the defendant has identified as rendering the particular evidence inadmissible.
Robinson, 377 S.W.3d at 719. “[T]he terms of the statute are
mandatory, and the jury must be instructed accordingly.”
Robinson , 377 S.W.3d at 719.
The issue of whether or not Appellant’s turn signal was
continuously activated for 100 feet prior to beginning the legal
turn she actually made was squarely raised by the evidence
presented to the jury. That jury could consider the
reasonableness of the deputy’s view of the physical landmarks and
12 the distances involved as applied to the law of turning,3 both by
the opinion testimony of the deputy, and by the empirical evidence
represented by State’s Exhibit #3, the video of the incident.
The lower court’s inadequate and incomplete review of the
video evidence does not change the fact that the jury could have
easily disagreed with the deputy’s perception. That court’s
inadequate viewing and description of the video evidence led to a
misapplication of the law requiring submission of such factual
disputes to the jury as set out in Robinson, supra, and requires
review.
Conclusion
Every fact before the jury relating to the reasonableness of the
deputy’s decision that Appellant had, or was about to, violate the
law, was on the video. The Court of Appeals’ efforts to minimize
that evidence through the use of marginalizing phraseology led the
3 “Turn” has been defined by this Court as meaning “to change directions”, in Mahaffey v. State, 316 S.W.3d 633 (Tex.Cr.App. 2010), while it has been held that a ninety degree turn was the type of turn envisioned by the applicable statute. Trahan v. State, 16 S.W.3d 146 (Tex.App - Beaumont 2000). These holdings are consistent with section 545.101(b) of the Transportation Code.
13 lower court into error. This error requires discretionary review
and, ultimately, a new trial be granted.
Prayer
WHEREFORE, PREMISES CONSIDERED, Donna Marie Pryor,
Appellant in the above styled and numbered cause respectfully
prays that the Court will consider and grant her petition for
discretionary review and, upon submission of the case, will vacate
the decision of the Court of Appeals and remand the case to the
trial court for a new trial.
Respectfully submitted,
_______________________________ ________________________________ John G. Jasuta David A. Schulman Attorney at Law Attorney at Law lawyer1@johngjasuta.com zdrdavida@davidschulman.com
State Bar No. 10592300 State Bar Card No. 17833400
1801 East 51st Street, Suite 365-474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282 Attorneys for Donna Marie Pryor
14 Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 2,626 words, excluding those
items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies
with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on
XXXX, a true and correct copy of the above and foregoing “Petition
for Discretionary Review” was transmitted via the eService
function on the State’s eFiling portal, to Joshua Presley
( preslj@co.comal.tx.us ) and Clayten Hearrell
(hearrc@co.comal.tx.us), counsel of record for the State of Texas,
and to Lisa McMinn, the State’s Prosecuting Attorney
(lisa.mcminn@spa.state.tx.us).
______________________________________ John G. Jasuta
15 Exhibit “A”
16 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00347-CR
Donna Marie Pryor, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT NO. CR2012-208, HONORABLE JACK ROBISON, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Donna Marie Pryor guilty of driving while intoxicated with
two previous similar convictions, a third-degree felony. See Tex. Penal Code §§ 49.04, .09(b)(2).
After finding that Pryor had previously been convicted of three additional felonies, the jury assessed
punishment at 99 years’ imprisonment, and the trial court rendered judgment on the jury’s verdict.
See id. § 12.42(d). In her first point of error, Pryor contends that the trial court erred by failing to
submit a jury instruction pursuant to Texas Code of Criminal Procedure article 38.23. In her second
point of error, Pryor argues that the trial court erred by overruling her objections to portions of the
State’s closing argument. We will affirm the trial court’s judgment of conviction. DISCUSSION
Article 38.23
At trial, a deputy with the Comal County Sheriff’s Office testified concerning the
traffic stop that led to Pryor’s arrest. According to the deputy, he stopped Pryor after observing
her make a turn without signaling for at least 100 feet before turning, a violation of law. See Tex.
Transp. Code § 545.104(b). The deputy further testified that he administered standardized field
sobriety tests, determined that Pryor was intoxicated, and arrested her. The State also produced a
video of the encounter recorded by the deputy’s in-car camera, which the trial court admitted.
At the charge conference, Pryor requested that the trial court submit an instruction
to the jury pursuant to article 38.23, which states,
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
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. art. 38.23(a). The trial court denied Pryor’s request.
In her first point of error, Pryor contends that the trial court erred by denying her
request for an instruction under article 38.23 because the State’s video was evidence that would
have allowed the jury to determine, contrary to the deputy’s testimony, that Pryor did not violate
the law by failing to signal at least 100 feet before turning. We understand Pryor to be arguing
2 that if she did not violate the law, then it was illegal for the officer to pull her over. If the traffic
stop was illegal, article 38.23 would have required the jury to disregard all of the evidence of
Pryor’s intoxication gathered after the stop. And if that evidence had been excluded, there would
be insufficient evidence to support her conviction.
A defendant must meet three requirements for the trial court to submit an instruction
pursuant to article 38.23: “(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) the contested factual issue must be
material to the lawfulness of the challenged conduct.” Oursbourn v. State, 259 S.W.3d 159, 177
(Tex. Crim. App. 2008) (citing Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007)).
Here, the only two pieces of evidence relevant to Pryor’s alleged failure to properly signal were
the deputy’s testimony and the video. See id. (“This factual dispute can be raised only by affirmative
evidence, not by mere cross-examination questions or argument.”). Thus, the issue before this Court
is whether the trial court erred in concluding that the video did not affirmatively contest the deputy’s
testimony concerning Pryor’s alleged failure to properly signal as it relates to the lawfulness of the
traffic stop.
Although Pryor argues that the video raises a fact question as to whether she signaled
at least 100 feet before turning, the material question is whether the deputy had reasonable suspicion
that she had violated the law. See Madden, 242 S.W.3d at 516 (“The real factual issue is whether
Trooper Lily reasonably believed that appellant was acting in a nervous manner, not whether the
videotape shows appellant acting in a nervous manner.”); see also State v. Duran, 396 S.W.3d 563,
568 (Tex. Crim. App. 2013) (“An officer must have reasonable suspicion that some crime was, or
is about to be, committed before he may make a traffic stop.”). Having reviewed the video, we
3 conclude that the video does not clearly show that it was unreasonable for the deputy to suspect
that Pryor had violated the law by failing to signal for at least 100 feet before turning.1 The video
shows Pryor activate her turn signal, move forward a bit, stop at a traffic light, and then turn left.
But the video does not indicate precise distances, nor does it show Pryor signaling so far in advance
that it would have been unreasonable for the officer to believe she had violated the law. Therefore,
Pryor has not demonstrated that evidence presented at trial affirmatively contested the deputy’s
testimony. As a result, the trial court did not err in not submitting an instruction under article 38.23.
Accordingly, we overrule Pryor’s first point of error.2
Jury argument
In her second point of error, Pryor argues that certain comments the prosecutor made
during closing argument at the punishment phase of trial were improper because they encouraged
the jury to consider parole law in calculating Pryor’s sentence.
1 This case is distinguishable from Mills v. State, in which this Court held that the district court erred in refusing the defendant’s request for an instruction under article 38.23. See Mills v. State, 296 S.W.3d 843, 848–49 (Tex. App.—Austin 2009, pet. ref’d). In Mills, unlike in this case, the officer who testified that the defendant failed to signal for at least 100 feet before the turn acknowledged on cross-examination that obstacles may have obstructed his view. See id. at 847–48. This Court concluded that the officer’s testimony, combined with video evidence, raised a material question of fact. See id. at 848. Here, however, there was no such equivocation in the officer’s testimony. 2 Pending before this Court is Pryor’s motion requesting that we take judicial notice of an aerial photograph allegedly depicting the intersection at issue in this case. We conclude that this photograph is not relevant to a determination of whether the evidence admitted at trial raised a fact question concerning reasonable suspicion. Accordingly, we deny the motion. See Watkins v. State, 245 S.W.3d 444, 456 (Tex. Crim. App. 2008) (“[T]he question of whether an appellate court should take judicial notice of an adjudicative fact when the underlying data or materials in support of that notice are presented for the first time in that court should be a matter of the appellate court’s discretion, never mandatory.”).
4 During the State’s closing argument, the following exchange occurred:
[Prosecutor:] If you look—so to explain how that works, if you sentence the defendant to 1000 years, a quarter of 1000 years is 250. 15 is less. So if you give somebody 1000 years, 15 years you can get paroled. If you give somebody life, 15 years they can get parole.
And I think that’s important for you to know because if it really meant life, maybe that would seem harsh, but it ain’t what it means. If you don’t believe it, you heard the parole officer here testify she was able to parole in six years on—
[Defense counsel:] Objection; improper argument, Judge.
[Trial court:] Overruled, Counsel.
[Prosecutor:] She was eligible for parole in eight months on a six year sentence. That’s how fast you can turn somebody out on this kind of thing.
Part of that is the fact that the law also provides that you can get good conduct time on that sentence. So for every day that you are in, they can give you a day of good conduct. So it isn’t 15 years, it is seven and a half, because once you get an extra day for every day you are in, it cuts it in half. So a life sentence, seven and a half years you can get out.
And what that tells you at the end of the day—
[Defense counsel:] Objection, improper argument, Your Honor.
[Trial court:] Overruled.
*****
[Prosecutor:] Giving somebody a life sentence, they can be back out on the road in about seven and a half years. And the other thing you need to know is that all the time somebody is in jail prior to this day they get credit for it, so that comes off the seven and a half years.
So I know when I talked the other day in voir dire, some people thought it sounded harsh, the range of punishment. That’s their right to feel that way, but at the end of the day it doesn’t mean that.
5 In Texas we like to talk tough on crime and every two years the legislature meets and they make up a first degree felony and talk about how they get life imprisonment—
[Defense counsel:] Objection; improper argument, Your Honor.
[Prosecutor:] They get their name in the newspaper. What they don’t tell you is they create parole boards that create all these fancy parole laws. My wife calls it dog years. Basically what it is.
It is a sad commentary on our system that we set it up in such a way, because it doesn’t mean what it tells you.
We review a trial court’s ruling on an objection to improper jury argument for an
abuse of discretion. Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012,
pet. ref’d) (citing Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010)). A trial court abuses
its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules and
principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.1990). “[P]roper jury
argument generally falls within one of four general areas: (1) summation of the evidence; (2) reasonable
deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law
enforcement.” Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).
As required by statute, the trial court instructed the jury that it could “consider the
existence of the parole law and good conduct time” but could not “consider the manner in which the
parole law may be applied to this particular defendant.” See Tex. Code Crim. Proc. art. 37.07, § 4(b).3
3 Article 37.07, section 4(b) governed the jury charge in this case because the offense was punishable under the habitual offender provision of the penal code because two prior sequential felony convictions were alleged for enhancement under Texas Penal Code section 12.42(d).
6 We have interpreted these instructions to allow the jury to consider the defendant’s eligibility for
parole but not whether or when the defendant will actually be released on parole. Branch v. State,
335 S.W.3d 893, 907 (Tex. App.—Austin 2011, pet. ref’d) (“Branch contends that the prosecutor’s
statements were improper. We agree . . . . Here, the prosecutor did not state that Branch would
be eligible for parole in a certain number of years, but rather stated that Branch would be out of
prison in that amount of time.”); see Taylor v. State, 233 S.W.3d 356, 360 (Tex. Crim. App. 2007)
(Womack, J., concurring) (“‘[T]he jury may base its assessment of punishment in part on consideration
of a sentenced defendant’s parole eligibility under the formula contained in the instruction; however,
a jury may not base its assessment of punishment on speculation as to when, if ever, the defendant
may be released on parole after becoming eligible for parole.’”) (quoting Byrd v. State, 192 S.W.3d
69, 77 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (Frost, J., concurring)); Waters v. State,
330 S.W.3d 368, 373–74 (Tex. App.—Fort Worth 2010, pet. ref’d) (adopting Judge Womack’s
concurrence). A prosecutor may properly discuss parole eligibility during jury argument as long
as he or she is merely explaining and clarifying the jury charge. See Taylor, 233 S.W.3d at 359;
Branch, 335 S.W.3d at 907 (noting that “the State may attempt to clarify the meaning of the jury
instructions pertaining to parole law and good-conduct time”); see also Hawkins v. State, 135
S.W.3d 72, 84 (Tex. Crim. App. 2004) (“It was not improper for the prosecutor to accurately restate
the law given in the jury charge nor was it improper for the prosecutor to ask the jury to take the
existence of that law into account when assessing punishment.”).
We conclude that the prosecutor’s argument was improper because it went beyond
merely explaining the jury charge and instead urged the jury to consider when Pryor might actually
7 be released on parole. See Hardin v. State, No. 03-14-00236-CR, 2015 WL 1514483, at *3 (Tex.
App.—Austin Mar. 25, 2015, no. pet. h.) (“Here, the prosecutor implicitly asked the jury to consider
not only when Hardin would become eligible for parole but also when Hardin might actually be
released on parole.”) (citing Branch, 335 S.W.3d at 907). The prosecutor argued to the jury, “[Y]ou
heard the parole officer here testify [Pryor] was able to parole in six years . . . .” A prosecutor may
not use evidence of a defendant’s prior release on parole to argue that the defendant would actually
be paroled before she had served the entire sentence assessed by the jury. See id.; see also Clark v.
State, 643 S.W.2d 723, 725 (Tex. Crim. App. 1982) (“Although the State is correct in noting that
the prison records were in evidence, the records were introduced solely for the purpose of
establishing appellant’s prior record. The records were not and could not be introduced for the
purpose of showing the jury how the parole laws operate . . . .”) Moreover, although the prosecutor
never unequivocally assured the jury that Pryor would be released before serving her entire sentence,
the prosecutor did use language that was filled with certainty and was not in tune with the trial
court’s instruction that “[i]t cannot accurately be predicted how the parole law and good conduct
time might be applied to this defendant if sentenced to a term of imprisonment.” See Tex. Code Crim.
Proc. art. 37.07 § 4(b). For example, the prosecutor stated, “So it isn’t 15 years, it is seven and a
half, because once you get an extra day for every day you are in, it cuts it in half. So a life sentence,
seven and a half years you can get out.” The prosecutor also stated, “Giving somebody a life
sentence, they can be back out on the road in about seven and a half years.” On several occasions,
the prosecutor stated or implied that the sentence assessed by the jury would not be the sentence that
Pryor actually served. Such argument is improper.
8 Having concluded that the prosecutor’s comments were improper, we now consider
whether those comments constitute reversible error. Pryor argues that we should apply the harm
analysis from Almanza v. State, in which the degree of harm required for reversal depends on
whether the appellant preserved error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1984). However, Almanza applies when reviewing errors in the jury charge, not errors regarding
jury argument. See Kuhn v. State, 393 S.W.3d 519, 524 (Tex. App.—Austin 2013, pet. ref’d) (“We
review claims of jury charge error under the two-pronged test set out in Almanza . . . .”); Vitello v. State,
No. 01-03-00669-CR, 2004 WL 1119948, at *5 (Tex. App.—Houston [1st Dist.] May 20, 2004,
pet. ref’d) (mem. op., not designated for publication) (“Almanza has not been extended to claims of
jury-argument error.”). Contrary to Pryor’s assertions, the improper use of parole law during jury
argument is non-constitutional error that “must be disregarded” if it “does not affect substantial
rights.” Tex. R. App. P. 44.2(b); Perez v. State, 994 S.W.2d 233, 237 (Tex. App.—Waco 1999,
no pet.); see Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000) (“[M]ost comments that
fall outside the areas of permissible argument will be considered to be error of the nonconstitutional
variety.”). To determine whether the defendant’s substantial rights were affected, “[w]e balance three
factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the
certainty of the punishment assessed absent the misconduct (likelihood of the same punishment
being assessed).” Hawkins, 135 S.W.3d at 77; see also Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998) (listing three harm-analysis factors); Perez, 994 S.W.2d at 237–38 (applying
Mosley factors).
We conclude that the error the trial court committed in overruling Pryor’s objections
did not affect Pryor’s substantial rights. Under the first Mosley factor, the severity of the misconduct,
9 we note that the prosecutor’s discussion of parole was both extended and vitriolic. The prosecutor
insulted the Texas Legislature and criticized the State’s criminal justice system for saying one thing
but meaning another when addressing being “tough on crime.” The clear implication was that the
jury’s only hope of preventing a flawed system from releasing Pryor in a mere seven-and-a-half years
was to assess the maximum sentence (as, indeed, the jury did in this case). This factor weighs in
favor of a finding of harm.
Under the second factor, curative measures, the trial court overruled Pryor’s objections
and gave no limiting instruction to the jury. The only curative measure appearing in the record was
the trial court’s instructions to the jury on punishment, which accurately quoted the language on
parole law mandated by Texas Code of Criminal Procedure article 37.07, section 4(b). We generally
presume that a jury will follow the trial court’s instructions. Gamboa v. State, 296 S.W.3d 574, 580
(Tex. Crim. App. 2009).
We determine that the third factor, the certainty of the punishment assessed, is
dispositive in this case. The State introduced evidence that Pryor had previously been convicted at
least five times for DWI. In addition, there was evidence that Pryor’s driving on the occasion under
consideration was so dangerous that a concerned citizen had reported her to law enforcement.
Moreover, Pryor’s own father testified at the punishment phase of trial that Pryor has struggled
with alcohol for many years and that “[i]t is a lifetime struggle.” He also testified that he has tried
everything he could to get her to quit drinking and driving and that it has not worked. Pryor’s father
additionally testified that he was worried that his daughter would eventually kill herself while driving
drunk and that on a prior occasion she ran off into a ditch because she was driving while intoxicated.
10 Finally, the State presented evidence that Pryor was required to have an interlock device on her
vehicle as a condition of parole in a previous DWI case and that the condition was still in effect
when she was arrested for the offense in this case. In light of all of this uncontroverted evidence,
the jury would likely have concluded that Pryor is unable or unwilling to change her behavior and
assessed the maximum sentence, even without the prosecutor’s comments on parole law.
Balancing these three factors, we conclude that the trial court’s decision to overrule
Pryor’s objections to the prosecutor’s comments did not affect Pryor’s substantial rights. We therefore
overrule Pryor’s second point of error.
Having overruled both of Pryor’s points of error, we affirm the judgment of conviction.
__________________________________________
Scott K. Field, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed
Filed: May 1, 2015
Do Not Publish
11 Exhibit “B”
17 January 29, 2010 Exhibit “C”
18 April 21, 2012