      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00347-CR



                                  Donna Marie Pryor, Appellant

                                                   v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
          NO. CR2012-208, HONORABLE JACK ROBISON, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury found appellant Donna Marie Pryor guilty of driving while intoxicated with

two previous similar convictions, a third-degree felony. See Tex. Penal Code §§ 49.04, .09(b)(2).

After finding that Pryor had previously been convicted of three additional felonies, the jury assessed

punishment at 99 years’ imprisonment, and the trial court rendered judgment on the jury’s verdict.

See id. § 12.42(d). In her first point of error, Pryor contends that the trial court erred by failing to

submit a jury instruction pursuant to Texas Code of Criminal Procedure article 38.23. In her second

point of error, Pryor argues that the trial court erred by overruling her objections to portions of the

State’s closing argument. We will affirm the trial court’s judgment of conviction.
                                           DISCUSSION

Article 38.23

                At trial, a deputy with the Comal County Sheriff’s Office testified concerning the

traffic stop that led to Pryor’s arrest. According to the deputy, he stopped Pryor after observing

her make a turn without signaling for at least 100 feet before turning, a violation of law. See Tex.

Transp. Code § 545.104(b). The deputy further testified that he administered standardized field

sobriety tests, determined that Pryor was intoxicated, and arrested her. The State also produced a

video of the encounter recorded by the deputy’s in-car camera, which the trial court admitted.

                At the charge conference, Pryor requested that the trial court submit an instruction

to the jury pursuant to article 38.23, which states,


       No evidence obtained by an officer or other person in violation of any provisions of
       the Constitution or laws of the State of Texas, or of the Constitution or laws of the
       United States of America, shall be admitted in evidence against the accused on the
       trial of any criminal case.

       In any case where the legal evidence raises an issue hereunder, the jury shall be
       instructed that if it believes, or has a reasonable doubt, that the evidence was obtained
       in violation of the provisions of this Article, then and in such event, the jury shall
       disregard any such evidence so obtained.


Tex. Code Crim. Proc. art. 38.23(a). The trial court denied Pryor’s request.

                In her first point of error, Pryor contends that the trial court erred by denying her

request for an instruction under article 38.23 because the State’s video was evidence that would

have allowed the jury to determine, contrary to the deputy’s testimony, that Pryor did not violate

the law by failing to signal at least 100 feet before turning. We understand Pryor to be arguing



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that if she did not violate the law, then it was illegal for the officer to pull her over. If the traffic

stop was illegal, article 38.23 would have required the jury to disregard all of the evidence of

Pryor’s intoxication gathered after the stop. And if that evidence had been excluded, there would

be insufficient evidence to support her conviction.

                A defendant must meet three requirements for the trial court to submit an instruction

pursuant to article 38.23: “(1) the evidence heard by the jury must raise an issue of fact; (2) the

evidence on that fact must be affirmatively contested; and (3) the contested factual issue must be

material to the lawfulness of the challenged conduct.” Oursbourn v. State, 259 S.W.3d 159, 177

(Tex. Crim. App. 2008) (citing Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007)).

Here, the only two pieces of evidence relevant to Pryor’s alleged failure to properly signal were

the deputy’s testimony and the video. See id. (“This factual dispute can be raised only by affirmative

evidence, not by mere cross-examination questions or argument.”). Thus, the issue before this Court

is whether the trial court erred in concluding that the video did not affirmatively contest the deputy’s

testimony concerning Pryor’s alleged failure to properly signal as it relates to the lawfulness of the

traffic stop.

                Although Pryor argues that the video raises a fact question as to whether she signaled

at least 100 feet before turning, the material question is whether the deputy had reasonable suspicion

that she had violated the law. See Madden, 242 S.W.3d at 516 (“The real factual issue is whether

Trooper Lily reasonably believed that appellant was acting in a nervous manner, not whether the

videotape shows appellant acting in a nervous manner.”); see also State v. Duran, 396 S.W.3d 563,

568 (Tex. Crim. App. 2013) (“An officer must have reasonable suspicion that some crime was, or

is about to be, committed before he may make a traffic stop.”). Having reviewed the video, we

                                                   3
conclude that the video does not clearly show that it was unreasonable for the deputy to suspect

that Pryor had violated the law by failing to signal for at least 100 feet before turning.1 The video

shows Pryor activate her turn signal, move forward a bit, stop at a traffic light, and then turn left.

But the video does not indicate precise distances, nor does it show Pryor signaling so far in advance

that it would have been unreasonable for the officer to believe she had violated the law. Therefore,

Pryor has not demonstrated that evidence presented at trial affirmatively contested the deputy’s

testimony. As a result, the trial court did not err in not submitting an instruction under article 38.23.

Accordingly, we overrule Pryor’s first point of error.2


Jury argument

                In her second point of error, Pryor argues that certain comments the prosecutor made

during closing argument at the punishment phase of trial were improper because they encouraged

the jury to consider parole law in calculating Pryor’s sentence.



        1
          This case is distinguishable from Mills v. State, in which this Court held that the district
court erred in refusing the defendant’s request for an instruction under article 38.23. See Mills v. State,
296 S.W.3d 843, 848–49 (Tex. App.—Austin 2009, pet. ref’d). In Mills, unlike in this case, the officer
who testified that the defendant failed to signal for at least 100 feet before the turn acknowledged
on cross-examination that obstacles may have obstructed his view. See id. at 847–48. This Court
concluded that the officer’s testimony, combined with video evidence, raised a material question of
fact. See id. at 848. Here, however, there was no such equivocation in the officer’s testimony.
        2
          Pending before this Court is Pryor’s motion requesting that we take judicial notice of an
aerial photograph allegedly depicting the intersection at issue in this case. We conclude that this
photograph is not relevant to a determination of whether the evidence admitted at trial raised a fact
question concerning reasonable suspicion. Accordingly, we deny the motion. See Watkins v. State,
245 S.W.3d 444, 456 (Tex. Crim. App. 2008) (“[T]he question of whether an appellate court should
take judicial notice of an adjudicative fact when the underlying data or materials in support of that
notice are presented for the first time in that court should be a matter of the appellate court’s
discretion, never mandatory.”).

                                                    4
        During the State’s closing argument, the following exchange occurred:


[Prosecutor:] If you look—so to explain how that works, if you sentence the defendant
to 1000 years, a quarter of 1000 years is 250. 15 is less. So if you give somebody
1000 years, 15 years you can get paroled. If you give somebody life, 15 years they
can get parole.

And I think that’s important for you to know because if it really meant life, maybe
that would seem harsh, but it ain’t what it means. If you don’t believe it, you heard
the parole officer here testify she was able to parole in six years on—

[Defense counsel:] Objection; improper argument, Judge.

[Trial court:] Overruled, Counsel.

[Prosecutor:] She was eligible for parole in eight months on a six year sentence.
That’s how fast you can turn somebody out on this kind of thing.

Part of that is the fact that the law also provides that you can get good conduct time
on that sentence. So for every day that you are in, they can give you a day of good
conduct. So it isn’t 15 years, it is seven and a half, because once you get an extra day
for every day you are in, it cuts it in half. So a life sentence, seven and a half years
you can get out.

And what that tells you at the end of the day—

[Defense counsel:] Objection, improper argument, Your Honor.

[Trial court:] Overruled.

*****

[Prosecutor:] Giving somebody a life sentence, they can be back out on the road in
about seven and a half years. And the other thing you need to know is that all the
time somebody is in jail prior to this day they get credit for it, so that comes off the
seven and a half years.

So I know when I talked the other day in voir dire, some people thought it sounded
harsh, the range of punishment. That’s their right to feel that way, but at the end of
the day it doesn’t mean that.



                                           5
        In Texas we like to talk tough on crime and every two years the legislature meets and
        they make up a first degree felony and talk about how they get life imprisonment—

        [Defense counsel:] Objection; improper argument, Your Honor.

        [Trial court:] Overruled.

        [Prosecutor:] They get their name in the newspaper. What they don’t tell you is they
        create parole boards that create all these fancy parole laws. My wife calls it dog years.
        Basically what it is.

        It is a sad commentary on our system that we set it up in such a way, because it
        doesn’t mean what it tells you.


                We review a trial court’s ruling on an objection to improper jury argument for an

abuse of discretion. Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012,

pet. ref’d) (citing Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010)). A trial court abuses

its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules and

principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.1990). “[P]roper jury

argument generally falls within one of four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law

enforcement.” Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).

                As required by statute, the trial court instructed the jury that it could “consider the

existence of the parole law and good conduct time” but could not “consider the manner in which the

parole law may be applied to this particular defendant.” See Tex. Code Crim. Proc. art. 37.07, § 4(b).3




       3
         Article 37.07, section 4(b) governed the jury charge in this case because the offense was
punishable under the habitual offender provision of the penal code because two prior sequential
felony convictions were alleged for enhancement under Texas Penal Code section 12.42(d).

                                                   6
We have interpreted these instructions to allow the jury to consider the defendant’s eligibility for

parole but not whether or when the defendant will actually be released on parole. Branch v. State,

335 S.W.3d 893, 907 (Tex. App.—Austin 2011, pet. ref’d) (“Branch contends that the prosecutor’s

statements were improper. We agree . . . . Here, the prosecutor did not state that Branch would

be eligible for parole in a certain number of years, but rather stated that Branch would be out of

prison in that amount of time.”); see Taylor v. State, 233 S.W.3d 356, 360 (Tex. Crim. App. 2007)

(Womack, J., concurring) (“‘[T]he jury may base its assessment of punishment in part on consideration

of a sentenced defendant’s parole eligibility under the formula contained in the instruction; however,

a jury may not base its assessment of punishment on speculation as to when, if ever, the defendant

may be released on parole after becoming eligible for parole.’”) (quoting Byrd v. State, 192 S.W.3d

69, 77 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (Frost, J., concurring)); Waters v. State,

330 S.W.3d 368, 373–74 (Tex. App.—Fort Worth 2010, pet. ref’d) (adopting Judge Womack’s

concurrence). A prosecutor may properly discuss parole eligibility during jury argument as long

as he or she is merely explaining and clarifying the jury charge. See Taylor, 233 S.W.3d at 359;

Branch, 335 S.W.3d at 907 (noting that “the State may attempt to clarify the meaning of the jury

instructions pertaining to parole law and good-conduct time”); see also Hawkins v. State, 135

S.W.3d 72, 84 (Tex. Crim. App. 2004) (“It was not improper for the prosecutor to accurately restate

the law given in the jury charge nor was it improper for the prosecutor to ask the jury to take the

existence of that law into account when assessing punishment.”).

               We conclude that the prosecutor’s argument was improper because it went beyond

merely explaining the jury charge and instead urged the jury to consider when Pryor might actually



                                                  7
be released on parole. See Hardin v. State, No. 03-14-00236-CR, 2015 WL 1514483, at *3 (Tex.

App.—Austin Mar. 25, 2015, no. pet. h.) (“Here, the prosecutor implicitly asked the jury to consider

not only when Hardin would become eligible for parole but also when Hardin might actually be

released on parole.”) (citing Branch, 335 S.W.3d at 907). The prosecutor argued to the jury, “[Y]ou

heard the parole officer here testify [Pryor] was able to parole in six years . . . .” A prosecutor may

not use evidence of a defendant’s prior release on parole to argue that the defendant would actually

be paroled before she had served the entire sentence assessed by the jury. See id.; see also Clark v.

State, 643 S.W.2d 723, 725 (Tex. Crim. App. 1982) (“Although the State is correct in noting that

the prison records were in evidence, the records were introduced solely for the purpose of

establishing appellant’s prior record. The records were not and could not be introduced for the

purpose of showing the jury how the parole laws operate . . . .”) Moreover, although the prosecutor

never unequivocally assured the jury that Pryor would be released before serving her entire sentence,

the prosecutor did use language that was filled with certainty and was not in tune with the trial

court’s instruction that “[i]t cannot accurately be predicted how the parole law and good conduct

time might be applied to this defendant if sentenced to a term of imprisonment.” See Tex. Code Crim.

Proc. art. 37.07 § 4(b). For example, the prosecutor stated, “So it isn’t 15 years, it is seven and a

half, because once you get an extra day for every day you are in, it cuts it in half. So a life sentence,

seven and a half years you can get out.” The prosecutor also stated, “Giving somebody a life

sentence, they can be back out on the road in about seven and a half years.” On several occasions,

the prosecutor stated or implied that the sentence assessed by the jury would not be the sentence that

Pryor actually served. Such argument is improper.



                                                   8
                Having concluded that the prosecutor’s comments were improper, we now consider

whether those comments constitute reversible error. Pryor argues that we should apply the harm

analysis from Almanza v. State, in which the degree of harm required for reversal depends on

whether the appellant preserved error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984). However, Almanza applies when reviewing errors in the jury charge, not errors regarding

jury argument. See Kuhn v. State, 393 S.W.3d 519, 524 (Tex. App.—Austin 2013, pet. ref’d) (“We

review claims of jury charge error under the two-pronged test set out in Almanza . . . .”); Vitello v. State,

No. 01-03-00669-CR, 2004 WL 1119948, at *5 (Tex. App.—Houston [1st Dist.] May 20, 2004,

pet. ref’d) (mem. op., not designated for publication) (“Almanza has not been extended to claims of

jury-argument error.”). Contrary to Pryor’s assertions, the improper use of parole law during jury

argument is non-constitutional error that “must be disregarded” if it “does not affect substantial

rights.” Tex. R. App. P. 44.2(b); Perez v. State, 994 S.W.2d 233, 237 (Tex. App.—Waco 1999,

no pet.); see Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000) (“[M]ost comments that

fall outside the areas of permissible argument will be considered to be error of the nonconstitutional

variety.”). To determine whether the defendant’s substantial rights were affected, “[w]e balance three

factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the

certainty of the punishment assessed absent the misconduct (likelihood of the same punishment

being assessed).” Hawkins, 135 S.W.3d at 77; see also Mosley v. State, 983 S.W.2d 249, 259 (Tex.

Crim. App. 1998) (listing three harm-analysis factors); Perez, 994 S.W.2d at 237–38 (applying

Mosley factors).

                We conclude that the error the trial court committed in overruling Pryor’s objections

did not affect Pryor’s substantial rights. Under the first Mosley factor, the severity of the misconduct,

                                                     9
we note that the prosecutor’s discussion of parole was both extended and vitriolic. The prosecutor

insulted the Texas Legislature and criticized the State’s criminal justice system for saying one thing

but meaning another when addressing being “tough on crime.” The clear implication was that the

jury’s only hope of preventing a flawed system from releasing Pryor in a mere seven-and-a-half years

was to assess the maximum sentence (as, indeed, the jury did in this case). This factor weighs in

favor of a finding of harm.

                Under the second factor, curative measures, the trial court overruled Pryor’s objections

and gave no limiting instruction to the jury. The only curative measure appearing in the record was

the trial court’s instructions to the jury on punishment, which accurately quoted the language on

parole law mandated by Texas Code of Criminal Procedure article 37.07, section 4(b). We generally

presume that a jury will follow the trial court’s instructions. Gamboa v. State, 296 S.W.3d 574, 580

(Tex. Crim. App. 2009).

                We determine that the third factor, the certainty of the punishment assessed, is

dispositive in this case. The State introduced evidence that Pryor had previously been convicted at

least five times for DWI. In addition, there was evidence that Pryor’s driving on the occasion under

consideration was so dangerous that a concerned citizen had reported her to law enforcement.

Moreover, Pryor’s own father testified at the punishment phase of trial that Pryor has struggled

with alcohol for many years and that “[i]t is a lifetime struggle.” He also testified that he has tried

everything he could to get her to quit drinking and driving and that it has not worked. Pryor’s father

additionally testified that he was worried that his daughter would eventually kill herself while driving

drunk and that on a prior occasion she ran off into a ditch because she was driving while intoxicated.



                                                  10
Finally, the State presented evidence that Pryor was required to have an interlock device on her

vehicle as a condition of parole in a previous DWI case and that the condition was still in effect

when she was arrested for the offense in this case. In light of all of this uncontroverted evidence,

the jury would likely have concluded that Pryor is unable or unwilling to change her behavior and

assessed the maximum sentence, even without the prosecutor’s comments on parole law.

               Balancing these three factors, we conclude that the trial court’s decision to overrule

Pryor’s objections to the prosecutor’s comments did not affect Pryor’s substantial rights. We therefore

overrule Pryor’s second point of error.


                                          CONCLUSION

               Having overruled both of Pryor’s points of error, we affirm the judgment of conviction.



                                               __________________________________________

                                               Scott K. Field, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: May 1, 2015

Do Not Publish




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