Marlo Donta Persons v. State ( 2015 )


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  •                                                                                      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
    

Document Info

Docket Number: 06-14-00109-CR

Filed Date: 5/6/2015

Precedential Status: Precedential

Modified Date: 9/29/2016