                                                                                 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


                                       16
