Cheryl Marie Vierling v. State

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.

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 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.

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 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

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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).
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