                                                                                 PD-0813-15
                                                                COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                              Transmitted 10/16/2015 1:55:51 PM
                                                                Accepted 10/16/2015 3:07:47 PM
                           No. PD-0813-15                                        ABEL ACOSTA
                                                                                         CLERK
                                In the
                   Texas Court of Criminal Appeals
                             At Austin


                         No. 06-14-00109-CR
                    In the Court of Appeals for the
                   Sixth Appellate District of Texas
                             At Texarkana




            MARLO DONTA PERSON, Appellant

                                  V.

              THE STATE OF TEXAS, Appellee




        PETITION FOR DISCRETIONARY REVIEW
        OF APPELLANT MARLO DONTA PERSON




                                              Tara N. Long
                                              State Bar No. 24032680
                                              Long Law Firm, PLLC
October 16, 2015                              2656 South Loop West, Suite 255
                                              Houston, Texas 77054
                                              Telephone: (713) 349-8896
                                              Fax: (713) 349-8863
                                              Counsel for Appellant



        APPELLANT REQUESTS ORAL ARGUMENT
                              IDENTITIES OF THE PARTIES

Appellant:                                    Marlo D. Persons

Defense Counsel at Trial:                     Mr. Daniel J. O’Brien
                                              131 North Ludlow Street
                                              Talbott Tower, Suite 1210
                                              Dayton, OH 45402

                                              Mr. Scott A. Cornuaud
                                              2611 Lee Street
                                              Greenville, TX 75401

Appellant’s Attorney on Appeal:               Elisha M. Hollis
                                              2608 Stonewall Street
                                              P.O. Box 1535
                                              Greenville, TX 75403

Prosecutions’ Attorney at Trial:              Ms. Lauren Hudgeons
                                              Assistant District Attorney
                                              Hunt County District Attorney
                                              2507 Lee Street, 4th Floor
                                              Greenville, TX 75401

Appellee’s Attorney on Appeal:                Ms. Keli M. Aiken
                                              First Assistant District Attorney
                                              P.O. Box 441
                                              4th Floor Hunt County Courthouse
                                              Greenville, TX 75403

Trial Judge:                                  Hon. Richard A. Beacom
                                              354th Judicial District Court
                                              2507 Lee Street, 3rd Floor
                                              Greenville, TX 75401




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                                  TABLE OF CONTENTS


Identities of the Parties                             2

Table of Contents                                     3

Index of Authorities                                  4

Statement of the Case                                 5

Statement of Procedural History                       5

Grounds for Review                                    5-6

Arguments & Authorities                               6

Prayer

Appendix




                                          3
                             INDEX OF AUTHORITIES


CASES

    Federal:

             Rodriguez vs. Unites States, No. 13-9972, 575 U.S. ____ (2015).

    State:

             Atkinson v. State, 923 S.W.2d 21 (Tex. App.—Ft. Worth 1996).

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

             Mendoza v. State, 88 S.W.3d 23 (Tex. Crim. App. 2002).

             Mills v. State, 296 S.W.3d 843 (Tex. App. –Austin 2009).


STATUTES

    TEXAS CODE OF CRIMINAL PROCEDURE Article 38.23

    TEXAS TRANSPORTATION CODE Section 545.062




                                             4
                              STATEMENT OF THE CASE


       Appellant Marlo D. Persons was charged with possession of cocaine in an amount of 400

grams or more. Furthermore, the grand jury found that Appellant had used or exhibited a deadly

weapon during the commission of this offense. After entering a plea of Not Guilty, Appellant

was tried by jury and found guilty and sentenced to 55 years in the Texas Department of

Criminal Justice. Appellant appealed on two issues both arising out of Trial Court’s denial of

Appellant’s request of an Article 38.23(a) jury instruction.


                   STATEMENT OF PROCEDURAL HISTORY

       The Sixth Court of Appeals found no error and affirmed the trial court’s judgment in a

decision rendered June 2, 2015. Appellant’s motion for rehearing, filed June 23, 2015, was

overruled on June 30, 2015. Appellant did not file a motion for another rehearing. Appellant

now files his petition for discretionary review pursuant to Rule 68 of the Texas Rules of

Appellate Procedure.


                                GROUNDS FOR REVIEW

   I. Whether the Court of Appeals erred when rendering a decision in which the evidence on

       the disputed issue of “following too closely” behind a vehicle, raised a fact issue as to

       whether the traffic stop was a pretext stop, that lead the Court of Criminal Appeals to

       render a decision is in conflict with this Court’s decision in Madden vs. State, and Mills

       vs. State and the applicability of Article 38.32 jury instructions.




                                                 5
   II. Whether the Fact that The Court of Appeals Did Not Take Into Account Rodriguez vs.

       United States, that the Motion to Suppress and critical argument that the search went

       beyond the scope of the stop entitled Appellant to an Article 38.32 instruction.


                          ARGUMENTS & AUTHORITIES

   I. Whether the Court of Appeals erred when rendering a decision in which the evidence on

          the disputed issue of “following too closely” behind a vehicle, raised a fact issue as to

          whether the traffic stop was a pretext stop, that lead the Court of Criminal Appeals to

          render a decision is in conflict with this Court’s decision in Madden vs. State, and

          Mills vs. State and the applicability of Article 38.32 jury instructions.

       The evidence presented at the trial on the disputed issue of what the measurable distance

   between vehicles, traveling in the same lane of travel and in the same direction, constitutes a

   traffic violation of traveling too closely was sufficient to merit an instruction to the jury

   under Texas Criminal Code of Procedure Article 38.239a). The denial of the trial counsel’s

   request for a 38.23(a) jury instruction was error on the part of the Court of Appeals and trial

   judge because the Motion to Suppress issues was taken away from the trier of, the facts, the

   jury, as to whether or not the Appellant’s 4th Amendment rights were violated either by the

   making of a pretext arrest or a consent to search that was unconstitutionally taken form the

   co-defendant.

       The Trooper testified that one of the reasons he performed the traffic stop on the vehicle

Appellant was traveling it was observed that Appellant’s vehicle was traveling too close behind

another vehicle. R.R. Vol. 45 8-10. The Trooper claimed the distance was less than 150 feet in

violation of the Transportation Code. RR Vol. 7 46 19-47. Appellant’s trial counsel made the
                                                6
issue of a distance dispute relevant to the actual distance of the car Appellant was in and the car

in front of it. Trial counsel said that an instruction on the Penal Code 38.23 should be included

in the jury charge because the multiple issues (distance) being disputed could be resolved with

the Jury’s viewing of the Trooper’s dash cam video of the cars. The trial court ruled that the

video was not sufficient to resolve the proposed dispute and denied those instructions. R.R. Vol.

9 41-19 thru 24.

       On Appeal, the Court of Appeals held that both the Trial Court and the Court of Appeals

had themselves reviewed the video and decided that what the Trooper had testified to was

supported with the dash cam video. It is Appellant’s contention that neither the trial court nor

the Court of Appeals were authorized under 38.23 to resolve this dispute. It is the sole problem

of the trier of fact, the jury, to resolve this dispute. According to Texas Transportation Code

Section 545.062, it does not state or use a measureable distance at all.

       Sec. 545.062. FOLLOWING DISTANCE. (a) An operator shall, if following

       another vehicle, maintain an assured clear distance between the two vehicles so

       that, considering the speed of the vehicles, traffic, and the conditions of the

       highway, the operator can safely stop without colliding with the preceding vehicle

       or veering into another vehicle, object, or person on or near the highway.

       (b) An operator of a truck or of a motor vehicle drawing another vehicle who is

       on a roadway outside a business or residential district and who is following

       another truck or motor vehicle drawing another vehicle shall, if conditions permit,

       leave sufficient space between the vehicles so that a vehicle passing the operator

       can safely enter and occupy the space. This subsection does not prohibit a truck

       or a motor vehicle drawing another vehicle from passing another vehicle.
                                                 7
       (c) An operator on a roadway outside a business or residential district driving in a

       caravan of other vehicles or a motorcade shall allow sufficient space between the

       operator and the vehicle preceding the operator so that another vehicle can safely

       enter and occupy the space.        This subsection does not apply to a funeral

       procession.

       Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

It makes no reference the 150 feet that the Trooper testified to during trial on direct or cross-

examination. R.R. Vol. 7 -34- thr 186 or RR vol 8-58 thr 81. The trooper also testified that

through his training his opinion is that we were following too close. RR. Vol. 7-121 and when

such a stop is based on objective criteria the risk of arbitrary and abusive police practices

tolerable exceeds possible limits allowed in Terry’s reasonably suspicious protections in their

opinion in effect substitutes for specific articulable facts reasonable suspicion analysis.

Furthermore, the officers following too close clearly doesn’t constitute a specific articulable fact

to support a stop and cross examination did reveal that the officer definition of following to close

is not in fact a description of conduct described by the statute in question. Therefore, the jury

was left with testimony from an officer that was false misleading and perjured. The Code of

Criminal Procedure Art. 38.23 states in pertinent part that any in case when the legal evidence

raises an issue hereunder the jury shall be instructed that if it believes or have a reasonable doubt

that the evidence was obtained in violation of a provision of this article, then upon such an event

the jury should disregard any of such evidence obtained. 38.23a. Since such article is mandatory

in nature, it is one of the statutory rights of the Defendant. Mendoza, 88 SW3d 236, 239 (Tex.

Crim. App. 2002). The right to the instruction attached to Appellant’s case as soon as the actual



                                                 8
dispute as the legality of seizure or other obtained evidence specifically the distance required for

the stop became an issue. Madden v. State, 242 S.W.3d 504, 513-514 (Tex. Crim. App. 2007).

II.      Whether the fact that the Court of Appeals did not take into account Rodriguez vs. United

         States, that the Motion to Suppress and critical argument that the search went beyond the

         scope of the stop entitled Appellant to an Article 38.32 instruction. The Rodriguez

         majority opinion, written by Justice Ginsburg was announced on April 21, 2015.

      The Court of Appeals and the trial court improperly denied the Appellant’s Motion to

      Suppress because there were no articulable facts or outside information, apart from the

      courtier profile elements that Trooper Zane Rhone, the officer that made the traffic stop and

      the arresting officer in this case, testified to at the hearing that he stated observed conduct of

      the driver of the vehicle that fits the profile was indicative of a person taking part in drug

      related activities, once the co-defendant was issued a warning the detention or stop should

      have ended.

         Trooper Zane Rhone when testifying and the dash cam video shows that appellant was

      not told he could leave the Texas Department of Public Safety Trooper’s patrol vehicle and

      was being detained, although he had properly identified himself, and there was no law

      violation witnessed by trooper Zane that would indicate that criminal activity was occurring

      and the traffic stop went beyond the scope of the traffic stop by the officer.         Thus, the

      consent to search was illegal and the search was beyond the scope of the stop and the

      evidence should have been suppressed by the court at the hearing. Rodriguez v. United

      States, No. 13-9972, decided on April 21, 2015 and printed on April 22, 2015.




                                                    9
   The panel was not made aware of the ruling by the United States Supreme Court and the

outcome of their analysis of the evidence when making their ruling or judgment might have

been materially affected.


                                        PRAYER

   Appellant respectfully prays that this Honorable Court grant his Petition for Discretionary

Review, set this case for oral argument, and reverse the decision of the Court of Appeals,

declare that Appellant was entitled to a Texas Code of Criminal Procedure Article 38.23 jury

instructions, and quash the charges against him.

                                         Respectfully submitted,

                                         Long Law Firm, PLLC
                                         2656 South Loop West, Suite 255
                                         Houston, Texas 77054
                                         (713) 349-8896 Tel.
                                         (713) 349-8863 Fax
                                         longlawfirm@gmail.com



                                         By: /s/ Tara N. Long
                                            Tara N. Long
                                            State Bar No. 24032680
                                            Attorney for Appellant Marlo D. Persons




                                            10
                           CERTIFICATE OF SERVICE

   I do hereby certify that on the 28th day of September, 2015, a true and correct copy of this

Petition for Discretionary Review of Appellant Marlo D. Persons, was forwarded by first

class U.S. Mail to:

Noble Dan Walker, Jr.
District Attorney
Hunt County, Texas

Keli M. Aiken
First Assistant District Attorney
P.O. Box 441
4th Floor Hunt County Courthouse
Greenville, TX 75403

                                         By: /s/ Tara N. Long
                                            Tara N. Long
                                            State Bar No. 24032680
                                            Attorney for Appellant Marlo D. Persons




                                           11
                        CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that

this petition contains 2,128 words (excluding the caption, table of contents, table of

authorities, signature, proof of service, certification, appendix and certificate of

compliance). This is a computer-generated document created in Microsoft Word,

using 14-point typeface for all text, except for footnotes which are in 12-point

typeface. In making this certificate of compliance, I am relying on the word count

provided by the software used to prepare the document.



                                              /s/ Tara N. Long




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                                 APPENDIX

A.   June 2, 2015, Judgment of the Sixth Court of Appeals, Marlo D. Persons v.

     The State of Texas, No. 06-14-00109-CR.

B.   June 2, 2015, Opinion of the Sixth Court of Appeals, Marlo D. Persons v.

     The State of Texas, No. 06-14-00109-CR.




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