William Cormac Quinn v. State

ACCEPTED
01-15-00116-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/4/2015 2:14:28 PM
No. 01-15-00116-CR CHRISTOPHER PRINE
CLERK
In the
Court of Appeals
For the
First District of Texas FILED IN
1st COURT OF APPEALS
At Houston HOUSTON, TEXAS
 11/4/2015 2:14:28 PM
No. 1447517 CHRISTOPHER A. PRINE
Clerk
In the 262nd District Court
Of Harris County, Texas

WILLIAM CORMAC QUINN
Appellant
V.
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas
ERIC KUGLER
Assistant District Attorney
Harris County, Texas
TBC No. 796910
kugler_eric@dao.hctx.net
GILBERT SAWTELLE
JAMIE MORRISON
Assistant District Attorneys
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel: (713) 274-5826
FAX: (713) 755-5809
Counsel for Appellee
ORAL ARGUMENT REQUESTED ONLY IF GRANTED TO APPELLANT
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral
argument is granted to the appellant.
IDENTIFICATION OF THE PARTIES
Counsel for the State:
Devon Anderson  District Attorney of Harris County
Eric Kugler  Assistant District Attorney on appeal
Gilbert Sawtelle; Jamie Morrison  Assistant District Attorneys at trial
Appellant or criminal defendant:
William Cormac Quinn
Counsel for Appellant:
John Cossum  Counsel at trial and on appeal
Trial Judge:
Hon. Denise Bradley  Presiding Judge
i
TABLE OF CONTENTS
Page
STATEMENT REGARDING ORAL ARGUMENT ................................................i
IDENTIFICATION OF THE PARTIES ....................................................................i
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF FACTS ........................................................................................ 1
REPLY TO APPELLANT’S FIRST POINT OF ERROR ........................................ 2
Deputy Abram had a reasonable suspicion to investigate a possible law
infraction when he could not see the appellant’s turn signal at distances of fifty
and three hundred feet behind the appellant’s vehicle. ..........................................4
REPLY TO APPELLANT’S SECOND POINT OF ERROR ................................... 7
A. The trial court did not give the appellant permission to appeal, and he did
not raise the exclusion of his homemade video in a written motion......................9
B. The trial court did not abuse its discretion by excluding the appellant’s
homemade video because it was both irrelevant and substantially more
prejudicial than probative. ....................................................................................11
C. The appellant cannot show that he was harmed by the exclusion of his
homemade video when the deputy’s dash-cam video was admitted into evidence.
13
CONCLUSION ........................................................................................................ 16
CERTIFICATE OF SERVICE AND COMPLIANCE ........................................... 16
ii
INDEX OF AUTHORITIES
CASES
Alabama v. White,
496 U.S. 325 (1990) ...............................................................................................4
Amador v. State,
275 S.W.3d 872 (Tex. Crim. App. 2009) ...............................................................6
Bounharith v. State,
28 S.W.3d 51 (Tex. App.—
Texarkana 2000, no pet.) ......................................................................................10
Carmouche v. State,
10 S.W.3d 323 (Tex. Crim. App. 2000) .................................................................4
Castro v. State,
227 S.W.3d 737 (Tex. Crim. App. 2007) ...............................................................6
Coffin v. State,
885 S.W.2d 140 (Tex. Crim. App. 1994) ...............................................................8
Davis v. State,
329 S.W.3d 798 (Tex. Crim. App. 2010) .............................................................12
Ford v. State,
158 S.W.3d 488 (Tex. Crim. App. 2005) ...........................................................4, 6
Garcia v. State,
827 S.W.2d 937 (Tex. Crim. App. 1992) ...............................................................4
Gigliobianco v. State,
210 S.W.3d 637 (Tex. Crim. App. 2006) .............................................................12
Green v. State,
934 S.W.2d 92 (Tex. Crim. App. 1996) .................................................................8
Guzman v. State,
955 S.W.2d 85 (Tex. Crim. App. 1997) .............................................................3, 8
Hippolite v. State,
No. 01–09–00569–CR, 2010 WL 2133887 (Tex. App.–
Houston [1st Dist.] May 27, 2010, no pet.)............................................................7
iii
Johnson v. State,
967 S.W.2d 410 (Tex. Crim. App. 1998) .............................................................14
King v. State,
953 S.W.2d 266 (Tex. Crim. App. 1997) .............................................................14
Montgomery v. State,
810 S.W.2d 372 (Tex. Crim. App. 1990) .............................................................11
Morales v. State,
32 S.W.3d 862 (Tex. Crim. App. 2000) ...............................................................15
Moreno v. State,
341 S.W.2d 455 (1961) ......................................................................................4, 9
Motilla v. State,
78 S.W.3d 352 (Tex. Crim. App. 2002) ...............................................................14
Nichols v. State,
12-14-00287-CR, 2015 WL 5139359 (Tex. App.—
Tyler Sept. 2, 2015, no. pet. h.) ..............................................................................5
Pawlak v. State,
420 S.W.3d 807 (Tex. Crim. App. 2013) .............................................................12
Perez v. State,
4 S.W.3d 305 (Tex. App.—
Houston [1st Dist.] 1999, no pet.) ........................................................................10
Romero v. State,
800 S.W.2d 539 (Tex. Crim. App. 1990) ...........................................................4, 9
Spann v. State,
448 S.W.2d 128 (Tex. Crim. App. 1969) ...........................................................4, 9
Turley v. State,
242 S.W.3d 178 (Tex. App.—
Fort Worth 2007, no pet.) .......................................................................................9
United States v. Fields,
483 F.3d 313 (5th Cir. 2007) ................................................................................12
Walter v. State,
28 S.W.3d 538 (Tex. Crim. App. 2000) .................................................................4
Walters v. State,
247 S.W.3d 204 (Tex. Crim. App. 2007) .............................................................14
iv
Whren v. United States,
517 U.S. 806 (1996) ...............................................................................................4
Young v. State,
283 S.W.3d 854 (Tex. Crim. App. 2009) ...........................................................4, 9
STATUTES
TEX. TRANSP. CODE § 547.324(e) (West 2014) .................................................. 5, 15
RULES
TEX. R. APP. P. 25.2(a)(2) ..........................................................................................9
TEX. R. APP. P. 39....................................................................................................... i
TEX. R. APP. P. 44.2(b) .............................................................................................14
TEX. R. EVID. 401 .....................................................................................................11
v
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The appellant was charged with possessing cocaine with intent to deliver it
committed on June 3, 2014 (CR – 5-6). He pled “guilty” to the charge, and the
trial court sentenced him to two years of deferred adjudication pursuant to the plea
agreement on January 20, 2015 (CR – 70). The appellant filed notice of appeal
that same day, and the trial court granted the appellant the right to appeal matters
raised in a pre-trial motion (CR – 68, 75-77).
STATEMENT OF FACTS
On June 3, 2014, James Abram with the Harris County Constable, Precinct
4, was on patrol in the Atascocita area of Harris County when he saw the appellant
driving a car without a completely visible turn signal (RR. II – 12). The appellant
changed lanes from the far left lane of the West Lake Houston Parkway into the
turning lane near Firesign (RR. II – 13). While the Transportation Code requires
that signals be visible for 300 feet, Abram had a difficult time seeing the
appellant’s signal from a distance of 40 to 50 feet (RR. II – 13-16, 21-22). The
appellant’s turn signal was not visible in clear daylight (RR. II – 23). He also had
a parking pass hanging from his rearview mirror that was obstructing his view
(RR. II – 17).
Abram stopped the appellant’s vehicle, and the appellant turned on his
hazard lights (RR. II – 16-17). Abram then saw that the lights on the left side of
the appellant’s car were much fainter than the ones on the right side (RR. II – 16-
17). When Abram walked up to the appellant, he smelled marijuana (CR – 10).
The appellant’s breathing was heavy and erratic (RR. II – 10). His vehicle
contained a marijuana grinder, cocaine, and $4,501 in cash (CR – 11).
REPLY TO APPELLANT’S FIRST POINT OF ERROR
The appellant claims in his first point of error that the trial court erred in
denying his motion to suppress because he was detained without reasonable
suspicion. (App’nt Brf. 11-15). This issue lacks merit because the detaining officer
had a reasonable suspicion to investigate a possible law infraction when he could
not see the appellant’s turn signal at a distance of fifty feet behind the appellant’s
vehicle and where the turn signal was not visible in normal sunlight from at least
300 feet from the back of the vehicle.
The appellant filed a pre-trial motion to suppress, which alleged that there
was no reasonable suspicion to justify his detention because neither the turn-signal
strength nor the hanging parking pass constituted an offense (CR – 26-33). The
2
trial court held a hearing on the motion during which both Deputy Abram and the
appellant’s father testified (RR. II – 9, 32). The appellant’s father stated that he
could observe the appellant’s turn signal from a distance of 300 feet the day before
the suppression hearing and that he made a video of it (RR. II – 35-36).
During argument, the State pointed out that the officer’s dash-cam video
showed his vantage point at the time of the offense and that the turn signal was not
visible from a distance of 50 feet (RR. II – 41) (St. Ex. 1). The trial court then
denied the motion to suppress and found that Deputy Abram was credible in his
testimony (RR. II – 43). The trial court also found that: “I believe the testimony,
or he articulated testimony that indicated that he believed the Defendant had
violated the Transportation Code and that the taillight was not visible from a
distance of 300 feet. The video supports the conclusion that the officer made.”
(RR. II – 43-44).
In reviewing a trial court’s rulings on a motion to suppress, this Court must
give almost total deference to a trial court’s determination of historical facts that
are supported by the record and to its determination of mixed questions of fact and
law that turn on an evaluation of credibility and demeanor. See Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997). This Court reviews de novo mixed
questions of law and fact that do not turn on an evaluation of credibility and
demeanor. See id. This Court reviews the evidence in the light most favorable to
3
the trial court’s ruling. See Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.
Crim. App. 2000).
If the trial court’s ruling regarding a motion to suppress is reasonably
supported by the record and is correct under any theory of law applicable to the
case, the reviewing court must affirm, even if the trial court gave an incorrect
reason for the ruling. See Young v. State, 283 S.W.3d 854 (Tex. Crim. App. 2009);
Romero v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990); Spann v. State,
448 S.W.2d 128 (Tex. Crim. App. 1969); Moreno v. State, 341 S.W.2d 455 (1961).
Deputy Abram had a reasonable suspicion to investigate a
possible law infraction when he could not see the appellant’s
turn signal at distances of fifty and three hundred feet
behind the appellant’s vehicle.
A police officer may stop and detain a motorist who commits a traffic
violation within the officer’s view. See Whren v. United States, 517 U.S. 806, 810
(1996); Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). In addition,
an officer may conduct a temporary detention if the officer has reasonable
suspicion to believe that a person is violating the law. See Ford v. State, 158
S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion is dependent upon
both the content of the information possessed by the police and its degree of
reliability. See Alabama v. White, 496 U.S. 325, 330 (1990); Walter v. State, 28
S.W.3d 538, 542 (Tex. Crim. App. 2000).
4
The Transportation Code provides in part that a “turn signal lamp must be
visible in normal sunlight at a distance of: (1) at least 500 feet from the front and
rear of the vehicle if the vehicle is at least 80 inches wide; and (2) at least 300 feet
from the front and rear of the vehicle if the vehicle is less than 80 inches wide.”
TEX. TRANSP. CODE § 547.324(e) (West 2014). There was no testimony on the
width of the appellant’s vehicle, but even if it was less than 80 inches wide, his
turn signal lamp was still required to be visible in normal sunlight at 300 feet.
Deputy Abram testified that he had a difficult time seeing the appellant’s
signal from a distance of 40 to 50 feet and that the appellant’s turn signal was not
visible in clear daylight (RR. II – 13-16, 21-23). Furthermore, the trial court stated
that it reviewed Abram’s affidavit in ruling on the motion to suppress, and Abram
swore in his affidavit that the appellant’s “left turn signal was defective because it
was not visible in normal sunlight from at least 300 feet from the back of his
vehicle.” (CR – 24) (RR. II – 5). Therefore, the trial court did not abuse its
discretion in denying the appellant’s motion to suppress. See Nichols v. State, 12-
14-00287-CR, 2015 WL 5139359, at *3 (Tex. App.—Tyler Sept. 2, 2015, no. pet.
h.) (not designated for publication) (“In the video, Appellant asserted that her low
beams, not high beams, were illuminated. Shepherd can be heard agreeing with
Appellant’s assertion. But at the hearing on the motion to suppress, Shepherd
testified that he was one hundred percent certain that Appellant’s high beam lights
5
were illuminated when she passed him….The question of whether Appellant’s
lights were set to high beam can be resolved by an assessment of whether
Shepherd’s testimony was credible. We defer to the trial court’s assessment of the
facts before it.”).
The appellant cites Ford in support of his argument. (App’nt Brf. 14). In
that case, a police officer detained Ford on suspicion of driving too closely to the
car ahead of him. Ford, 158 S.W.3d at 490–91. At the suppression hearing, the
officer “only stated that Ford was ‘following too close’.” Id., 158 S.W.3d at 493.
The Court of Criminal Appeals held that, while the trial court could have
concluded that the officer genuinely suspected that Ford broke the law, “without
specific, articulable facts, a court has no means in assessing whether this opinion
was objectively reasonable.” Id.
But Ford does not apply when a police officer supplies specific, articulable
facts. Amador v. State, 275 S.W.3d 872, 879 (Tex. Crim. App. 2009). Similarly, it
does not apply when an officer can objectively determine whether a particular
person has violated a criminal statute. Castro v. State, 227 S.W.3d 737, 742 (Tex.
Crim. App. 2007). As the Castro Court explained, “in cases involving offenses
such as failure to signal a lane change, a court can determine whether an officer’s
determination that a driver committed a traffic violation was objectively reasonable
without being presented with a detailed account of the officer’s
6
observations….Following too closely, speeding, and being intoxicated, can be
examples of such subjective determinations. Failure to signal a lane change is not.”
Id.
Likewise, in the present case, having a turn signal that is not visible in
normal sunlight at a distance of 300 feet can be determined without a detailed
account of the officer’s observations. It is certainly much closer to the offense of
failing to signal a lane change than the offense of “following too closely.” Castro,
227 S.W.3d at 742; see also Hippolite v. State, No. 01–09–00569–CR, 2010 WL
2133887, at *3 (Tex. App.–Houston [1st Dist.] May 27, 2010, no pet.) (not
designated for publication) (affirming constitutionality of warrantless turning-
without-signaling traffic stop when officer saw defendant turn without signaling).
The trial court did not abuse its discretion in denying the appellant’s motion to
suppress, and his first point of error should be overruled.
REPLY TO APPELLANT’S SECOND POINT OF ERROR
The appellant claims in his second and final point of error that the trial court
erred in excluding a video that he made of his car’s rear signal light the day before
the suppression hearing. (App’nt Brf. 17-20). This argument lacks merit because
the appellant does not have the right to appeal it. Nevertheless, the trial court did
not abuse its discretion by excluding the evidence, which was both irrelevant and
7
substantially more prejudicial than probative. Finally, the appellant cannot show
that he was harmed by the exclusion of his homemade video when the deputy’s
dash-cam video was admitted into evidence.
During the testimony of the appellant’s father at the suppression hearing, he
stated that he made a video of the appellant’s turn signals “yesterday,” when the
weather was “partial overcast, sun peeking through periodically…” (RR. II – 34).
He used a tape measure and testified that he could see the appellant’s turn signal
“clearly” at a distance of 300 feet (RR. II – 35). When the appellant offered the
video into evidence, the State objected based on relevance, and the trial court
stated, “We have an actual video that was made on the day of this offense that
shows the lights or the vehicle itself and the condition of that vehicle on that day.”
(RR. II – 37). The trial court then sustained the objection (RR. II – 38).
As stated previously, the trial court’s ruling on the admissibility of evidence
is subject to an abuse of discretion standard on appeal. See Coffin v. State, 885
S.W.2d 140, 149 (Tex. Crim. App. 1994). A reviewing court should not reverse a
trial judge whose ruling was within the “zone of reasonable disagreement.” Green
v. State, 934 S.W.2d 92, 101 (Tex. Crim. App. 1996). The reviewing court must
view the evidence in the light most favorable to the trial court’s ruling, giving the
trial court almost total deference on its findings of historical fact that find support
in the record. Guzman, 955 S.W.2d at 89. Finally, if the trial court’s decision to
8
admit or exclude evidence is reasonably supported by the record and is correct
under any theory of law applicable to the case, the reviewing court must affirm,
even if the trial court gave an incorrect reason for the ruling. See Romero, 800
S.W.2d at 543-44; Spann, 448 S.W.2d 128; Moreno, 341 S.W.2d 455.
A. The trial court did not give the appellant permission to
appeal, and he did not raise the exclusion of his homemade
video in a written motion.
In a plea bargain case, a criminal defendant’s right to appeal is limited to
those matters that were raised by written motion filed and ruled on before trial or to
those cases in which the defendant obtained the trial court’s permission to appeal.
TEX. R. APP. P. 25.2(a)(2); Turley v. State, 242 S.W.3d 178, 179 (Tex. App.—Fort
Worth 2007, no pet.). A plea bargain case is one in which a defendant’s plea was
guilty or nolo contendere and the punishment did not exceed the punishment
recommended by the prosecutor and agreed to by the defendant. Id.
In the present case, the appellant pled “guilty” in exchange for a punishment
recommendation by the State of two years on deferred adjudication (CR – 58).
The trial court followed the plea agreement and sentenced the appellant
accordingly (CR – 70). Thus, this was a plea bargain case. TEX. R. APP. P.
25.2(a)(2). The trial court’s certification, however, did not give the appellant
permission to appeal (CR – 77). Rather, the appellant was allowed to appeal the
9
ruling on his motion to suppress in his first point of error only because he raised
the issue in a written motion that was filed and ruled upon prior to the trial (CR –
26-47).
The appellant’s second point of error does not fit into the Rule 25.2 category
of issues raised by written motion that are filed and ruled upon prior to the trial.
Rather, the ruling on the exclusion of his homemade video was an evidentiary
ruling made orally during the suppression hearing (RR. II – 38). Therefore, the
appellant is not entitled to raise that issue on appeal. See Bounharith v. State, 28
S.W.3d 51, 52 (Tex. App.—Texarkana 2000, no pet.) (“A defendant may enter a
plea agreement for deferred adjudication and appeal that order in the same manner
as he would in an ordinary probation case…The defendant must, however, still
comply with the restrictions on appeals set out in TEX. R. APP. P. 25.2(b)(3). By
those restrictions he is limited to appealing jurisdictional defects, with the trial
court’s permission, or rulings on pretrial motions.”); see also Perez v. State, 4
S.W.3d 305, 307 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (“the trial court’s
denial of permission to appeal merely limits the issues that may be addressed on
appeal; it may not operate to deny appellant’s right to appeal his conviction.”).
The appellant’s second point of error should be dismissed.
10
B. The trial court did not abuse its discretion by excluding the
appellant’s homemade video because it was both irrelevant
and substantially more prejudicial than probative.
Under the Texas Rules of Evidence, the trial court follows a two-step
process in determining whether evidence is admissible. See Montgomery v. State,
810 S.W.2d 372, 375-376 (Tex. Crim. App. 1990). First, the trial court must
decide whether the evidence is relevant. Id.. Relevant evidence is defined as
evidence “having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” TEX. R. EVID. 401. Second, the trial court must
determine if the evidence should be excluded because of some other provision,
whether constitutional, statutory, or evidentiary. See Montgomery, 810 S.W.2d at
376.
Under Rule 403, a trial “court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, or
needlessly presenting cumulative evidence.” Id. When performing a 403 analysis,
courts should balance the following factors:
(1) the inherent probative force of the proffered item of
evidence along with (2) the proponent’s need for that evidence against
(3) any tendency of the evidence to suggest decision on an improper
basis, (4) any tendency of the evidence to confuse or distract the jury
from the main issues, (5) any tendency of the evidence to be given
undue weight by a jury that has not been equipped to evaluate the
11
probative force of the evidence, and (6) the likelihood that
presentation of the evidence will consume an inordinate amount of
time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) (footnote
omitted); see Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010)
(explaining that “probative value” refers to how strongly evidence makes existence
of fact more or less probable and to how much proponent needs evidence and that
“unfair prejudice” considers how likely it is that evidence might result in decision
made on improper basis, including emotional one).
Although appellate courts review a trial court’s ruling on Rule 403 grounds
for an abuse of discretion, reviewing courts should bear in mind that trial courts are
given “an especially high level of deference” for Rule 403 determinations. See
United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007); see also Pawlak v.
State, 420 S.W.3d 807, 810 (Tex. Crim. App. 2013).
In the present case, the issue was whether the appellant’s signal was visible
from a distance of 300 feet immediately before Deputy Abram stopped him;
Abram swore that it was not (RR. II – 13-16, 21-22) (CR – 24). In addition to
Abram’s affidavit and testimony, the trial court also considered Abram’s video
footage from his dash-cam, which was taken on June 3 at the same time that
Abram was making his observations (RR. II – 5, 8, 44). The appellant’s video was
taken on December 15 under partial-overcast skies with the sun peeking through
12
periodically, and any number of changes could have been made to the appellant’s
car in the meantime, from replacing the bulbs to washing the light fixtures (RR. II
– 34). Because of the temporal break and differences in environment, the
appellant’s homemade video had very low inherent probative force. Because it
was made on a different day under different conditions, it had a strong tendency to
suggest a decision on an improper basis and to confuse or distract the trial court
from the main issue. Finally, the appellant’s need for that evidence was slim
because there was a much better source for that video information: Deputy
Abram’s dash-cam video that was taken contemporaneously with the traffic stop.
The appellant’s homemade video did not have having any tendency to make
Abram’s observations more probable or less probable than they would be without
the video. Therefore, the trial court did not abuse its discretion in sustaining the
State’s objection. The appellant’s second point of error lacks merit and should be
overruled.
C. The appellant cannot show that he was harmed by the
exclusion of his homemade video when the deputy’s dash-
cam video was admitted into evidence.
If any error occurred, then the violation was not constitutional in nature, but
rather was merely a violation of the evidentiary rules. Therefore, this Court must
apply Rule 44.2(b) of the Texas Rules of Appellate Procedure and determine
13
whether the alleged error affected the appellant’s substantial rights. TEX. R. APP. P.
44.2(b); see Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007) (“The
erroneous exclusion of evidence offered under the rules of evidence generally
constitutes non-constitutional error and is reviewed under Rule 44.2(b).”).
Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any
non-constitutional “error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b). A substantial right
is affected when an error has a substantial, injurious effect or influence in
determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim.
App. 1997). If, on the record as a whole, it appears the error “did not influence the
jury, or had but a slight effect,” this Court must consider the error harmless and
allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.
App. 1998).
The weight of the evidence of the defendant’s guilt is a relevant factor in
conducting a harm analysis under Rule 44.2(b). Motilla v. State, 78 S.W.3d 352,
360 (Tex. Crim. App. 2002). In the present case, the evidence of guilt was
overwhelming. The trial court considered the affidavits in the case, including the
affidavit of Deputy Abrams, the testimony of the witnesses, including the
testimony of Deputy Abrams, and the dash-cam video. Abram’s testimony was
consistent and was corroborated by his dash-cam video, and that is why the trial
14
court found that Deputy Abram was “credible with regards to his testimony and the
observations that he made on the date of this offense.” (RR. II – 43). That sworn
testimony showed that the appellant’s turn signal was not visible at a distance of
300 feet at the time of the traffic stop. And the appellant’s homemade video would
have done nothing to contradict that conclusion. Such a condition is a violation of
the law. TEX. TRANSP. CODE § 547.324(e) (West 2014).
Another relevant factor in a harm analysis under Rule 44.2(b) is “the
character of the alleged error and how it might be considered in connection with
other evidence in the case.” Id., 78 S.W.3d at 359 (quoting Morales v. State, 32
S.W.3d 862, 867 (Tex. Crim. App. 2000)). In the present case, as stated
previously, the excluded evidence had little to no probative value. It was taken
more than six months after the relevant date and under conditions not consistent
with the regulating statute. Therefore, the exclusion of the appellant’s homemade
video could not have had more than a slight effect on the ruling. And the
appellant’s second point of error should be overruled.
15
CONCLUSION
It is respectfully submitted that all things are regular and the conviction
should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Eric Kugler
ERIC KUGLER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 274-5826
kugler_eric@dao.hctx.net
TBC No. 796910
CERTIFICATE OF SERVICE AND COMPLIANCE
This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 4,517 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:
John Cossum
Attorney at Law
440 Louisiana, Suite 900
Houston, Texas 77002
jcossum@cossumlaw.com
/s/ Eric Kugler
ERIC KUGLER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 274-5826
TBC No. 796910
Date: November 4, 2015
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