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
11
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.
1
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
8
Marlo Donta Persons v. State
Combined Opinion