Marlo Donta Persons v. State

Court: Court of Appeals of Texas
Date filed: 2015-05-06
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Combined Opinion
                                                                                     ACCEPTED
                                                                                 06-14-00109-CR
                                                                      SIXTH COURT OF APPEALS
                                                                            TEXARKANA, TEXAS
                                                                             5/6/2015 2:34:56 PM
                                                                                DEBBIE AUTREY
                                                                                          CLERK


             IN THE COURT OF APPEALS FOR THE
          SIXTH DISTRICT OF TEXAS AT TEXARKANA
                                                              FILED IN
                                                       6th COURT OF APPEALS
MARLO DONTA PERSONS,          §                          TEXARKANA, TEXAS
  APPELLANT                   §                        5/6/2015 2:34:56 PM
                              §                            DEBBIE AUTREY
                                                               Clerk
    v.                        §             Nos. 06-14-00109-CR
                              §
                              §
THE STATE OF TEXAS,           §
   APPELLEE                   §




                       STATE'S BRIEF



            FROM THE 354TH JUDICIAL DISTRICT COURT
                    HUNT COUNTY, TEXAS

                TRIAL CAUSE NUMBER29,371
    THE HONORABLE RICHARD A. BEACOM, JR., JUDGE PRESIDING



                                  NOBLE DAN WALKER, JR.
                                  District Attorney
                                  Hunt County, Texas

                                  KELI M. AIKEN
                                  First Assistant District Attorney
                                  P. 0. Box441
                                  4th Floor Hunt County Courthouse
                                  Greenville, TX 75403
                                  kaiken@huntcounty.net
                                  (903) 408-4180
NO ORAL ARGUMENT                  FAX (903) 408-4296
REQUESTED                         State Bar No. 24043442
                                     TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... i

INDEX OF AUTHORITIES ..................................................................................... ii

SUMMARY OF THE STATE'S ARGUMENTS .................................................... 2

STATE'S RESPONSE TO POINTS OF ERROR ONE ...................................... 3-5
    The trial court properly found no factual dispute existed regarding
    Trooper Rhone's traffic stop of Appellant for driving too closely and
    therefore, did not give the jury a 38.23 instruction.

PRAYER AND CERTIFICATES ........................................................................ 6-7
                                INDEX OF AUTHORITIES



Cases

Hamal v. State, 390 S.W.3d 302 (Tex. Crim. App. 2012) .................................... 3-4

Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) .............................. 3, 5-6


Penal Code
TEX. CODE CRIM. PRO, ART. 38.43 (Vernon 2013) ............................................... 3, 6




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                 IN THE COURT OF APPEALS FOR THE
              SIXTH DISTRICT OF TEXAS AT TEXARKANA

MARLO DONTA PERSONS,                     §
     APPELLANT                           §
                                         §
      v.                                 §            Nos. 06-14-00109-CR
                                         §
                                         §
THE STATE OF TEXAS,                      §
     APPELLEE                            §




                                STATE'S BRIEF



TO THE HONORABLE COURT OF APPEALS:

      NOW COMES the State of Texas, Appellee, in this appeal from Cause No.
29,371 in the 354th Judicial District Court in and for Hunt County, Texas,
Honorable Richard A. Beacom, Jr., Presiding, now before the Sixth District Court
of Appeals, and respectfully submits this its brief to the Court in support of the
judgment of sentence in the court below.




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                    SUMMARY OF THE STATE'S ARGUMENTS

         The trial court properly found no factual dispute existed and therefore,

Appellant was not entitled to an Article 38.23 instruction in the jury charge. At

trial, Trooper Zane Rhone presented evidence that he stopped the car Appellant

was in (hereinafter "Appellant's car) for violation of two traffic offenses: 1)

following another vehicle too closely; and 2) obstructed license plate. RR7 /45,

lines 5-15 1• Trooper Rhone's testimony that Appellant's car was following

another car too closely was uncontroverted by testimony, evidence, and his in car

video. RR 7-8; SE 3B 2 . There was no testimony or evidence presented at trial that

contradicted Trooper Rhone's assertion that Appellant's car was following too

closely; therefore, Appellant was not entitled to an Article 38.43 instruction and

the trial court ruled accordingly.




1
    RR refers to Reporter's Record. This cite is to Reporter's Record 7, page 45, lines 5-9.
2
    SE refers to State's Exhibit number. This cite is to State's Exhibit 3B.


                                                                                           2
               STATE'S RESPONSE TO POINTS OF ERROR ONE

         The trial court properly found no factual dispute existed regarding
         Trooper Rhone's traffic stop of Appellant for driving too closely
         and therefore, did not give the jury a 38.23 instruction.

                              Argument and Authorities

         A defendant is entitled to an Article 38.23 jury insttuction when they prove

each of the following prerequisites: 1) the evidence heard by the jury raises an

issue of fact; 2) the factual evidence must be affirmatively contested; and 3) the

contested factual issue must be material to the lawfulness of the challenged

conduct. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007); Hamal v.

State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012); TEX. CODE CRIM. PRO.,

ARTICLE 38.23 (Vetnon 2013). The court must examine whether any fact is being

challenged by the evidence. Hamal v. State, 390 S.W.3d at 307. In looking for

affirmative evidence to raise a factual dispute, "a cross-examiner's questions do

not create a conflict in the evidence, although the witnesses' answers might."

Madden v. State, 242 S.W.3d at 513. Furthennore, if there is no dispute from the

evidence about what the officer "did, said, saw, or heard" then the defendant does

not meet the first prong and is not entitled to an Article 38.23 instruction. Hamal

v. State, 390 S.W.3d at 307; TEX. CODE CRIM. PRO., ARTICLE 38.23 (Vernon

2013).




                                                                                        3
  A. There is no factual dispute that Trooper Rhone saw Appellant's
     car following another vehicle too closely and committing a traffic
     offense.

       In this case, there is no factual dispute about what Trooper Rhone saw. In

Hamal, the defendant argued that the trooper did not have reasonable suspicion to

prolong the detention in order to allow for a d1ug dog to arrive. Hamal v. State,

390 S.W.3d 302 at 307. The conversation between the trooper and defendant as

well as her answers and actions were depicted in the in car video. Id. at 304-307.

The court found:

              The real question in this case is whether there was any factual
       dispute about what information Trooper Riggs received before and
       during the stop. The answer to that question is that there was no
       factual dispute. There was no dispute in the testimony about what the
       video depicts. There was no conflict in the evidence regarding what
       appellant and Trooper Riggs said and did ... "

!d. at 307.

       This case is similar to Hamal in that there are is no factual dispute that

Trooper Zane Rhone saw the Appellant's vehicle following too closely and pulled

the car over for a traffic stop. Trooper Rhone testified on both direct and cross

during the State's case and the Defense presentation. RR7/34-186; RR8/58-81.

During his testimony, Trooper Rhone consistently told the jury that Appellant's car

was following too closely to another vehicle. RR7/45-47; p.117, lines 16-18;

p.120, lines 16-17; pp.183-184; RR8/69-71; p.79, lines 1-19.          He explained

that the safe distance from one vehicle to another traveling under safe speed and

                                                                                     4
similar conditions was at least 150 feet. RR7/45-47. Trooper Rhone testified that

Appellant's car was much closer to the vehicle in front of it and one of the reasons

he initiated a traffic stop was based on violation of Texas traffic law for driving too

closely. !d. When his in car video was repeatedly shown to the jury, Trooper

Rhone testified that the video showed Appellant's car driving too closely.

RR7/111-112, pp.120-121; pp.183-184; RR8/69-71; p.79, lines 1-19; SE 3B.

There was no testimony or evidence that contradicted Trooper Rhone's statement

that he pulled over Appellant's car for driving too closely. RR7-8. The trial court

viewed the in car video and further found there was no factual dispute raised

between Trooper Rhone's testimony about the car traveling too closely and the in

em· video. RR8/41-42.

      This case is distinguishable from Madden in that there are no statements or

evidence that contradict Trooper Rhone's testimony about stopping Appellant's car

for following too closely. In Madden the court found a factual dispute did exist

when the in car video contained a statement by the defendant that he was driving

55 m.p.h. but the trooper testified at trial that the defendant was traveling 61 m.p.h.

in a 55 m.p.h. zone. Madden v. State, 242 S.W.3d 504 at 506-511. There were no

statements in Trooper Rhone's in car video that contradicted his testimony and the

video itself showed Appellant's car violating the traffic law cited. SE 3B.




                                                                                      5
Furthermore, at trial no one testified that the driver of Appellant's car was not

driving too closely. RR7-8.

       B. As there was no factual dispute about Appellant's car following
       too closely there was no reason to submit a 38.23 instruction
       regarding the obstructed license plate.

      As long as the State proved one violation of traffic law to justify the stop of

Appellant's car, the second reason for stopping the car does not get submitted to

the jury. In Madden, the court established that as long as the State could prove one

legally sufficient reason to justify the stop, there was no need to submit an Article

38.23 instruction for the other asserted traffic violations. Madden v. State, 242

S.W.3d at 516-17; TEX. CODE CRIM. PRO., ARTICLE 38.23 (Vernon 2013). In this

case, the State proved that Trooper Rhone had reasonable suspicion to believe that

an offense was cmmnitted when he saw Appellant's car following too closely to

the car in front of it in violation of Texas traffic laws. See Section A supra.

      As Appellant fails to show that he was entitled to an Article 3 8.23

instruction in the jury charge, Appellant's point of error should be denied and

Appellant's sentence affirmed.




                                                                                        6
                              PRAYER

The State prays that the Court will affirm Appellant's sentence.


                                       Respectfully submitted,


                                      NOBLE DAN WALKER, JR.
                                      District Attorney
                                      Hunt County, Texas


                                       Is/ Keli M. Aiken
                                      KELI M. AIKEN
                                      Assistant District Attorney
                                      P. 0. Box 441
                                      4th Floor, Hunt County Courthouse
                                      Greenville, TX 7 5403
                                      kaiken@huntcounty.net
                                      State Bar No. 240434482
                                      (903) 408-4180
                                      FAX (903) 408-4296




                                                                          7
CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

      In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i), the
undersigned attorney or record certifies that Appellants Brief contains 14-point
typeface of the body of the brief and contains 1,587, and was prepared on
Microsoft Word 2013.



                                                /s/ Keli M. Aiken
                                             KELI M. AIKEN
                                             First Assistant District Attorney
                                             P. 0. Box 441
                                             4th Floor Hunt County Courthouse
                                             Greenville, TX 75403
                                             (903) 408-4180
                                             FAX (903) 408-4296
                                             State Bar No. 24043442



                         CERTIFICATE OF SERVICE


      A true copy of the State's briefhas been emailed to Elisha Hollis,

Appellant's attorney, today May 6, 2015, pursuant to local rules.



                                               Is/ Keli M. Aiken
                                             KELI M. AIKEN
                                             First Assistant District Attorney




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