                                               ZIS-IS
                                      No.    06-14-00109-CR
                                                                              ORIGINAL
                                             PD-OR13-15



                     In The Court of criminal Appeals of Texas

                                            Austin*   Texas

                                                                         RECBVPD|[\!
                                                                       C0U^O?nRiv;;iAL APPEALS
                                    MARLO DONTA PERSONS,

                                                                           OCT 02 2015
                                              APPELLANT


                                                 v.



                                      THE    STATE    OF   TEXAS


                                              APPELLEE




            On    appeal     from     the     354th Judicial District Court of Hunt

      County,    Texas Cause No.       2937,1

            Honorable Richard A. Beacom, Judge Presiding




                                            APPELLANT'S


                           PETITION    FOR    DTSCRETITIONARY REVIEW




        FILED IN
COURT OF CRIMINAL APPEALS

      CCT 0<>23i5

    Abel Acosta, Clerk                                                 Mario Persons 11939454
                                                                       Eastham Ohit
                                                                       2665 Prison *d »1
                                                                       Lovelady, Texas 75851
                                                                                           Pro Se
                                   TABLE OF COWTENTS




Table of Contents                                                     «2 Page

Tdenty of Parties and counsel                                         *3

Index of Authorities                                                 *4

Statement Regarding Oral Argument                                    *5

Statement of the case                                                «5


Statement of Procedural History                                      n5

Grounds for Review                                                   "6-7-3-Q


Question for Review                                                  «6-7-R-9

Appendix




     The Court of Appeals decision is in conflict with this courts decision

in Madden V. State, 242 s.W. 3d 504 (Tex. Crim App 2007> Mills V. State,

296 S-W. 3d 843 (Texas App. Austin 2009.



                                      Ground Two


     The    court   of   Appeals   decision   is in conflict with the Texas Rules of

Appellate   Procectare   66.3   because it Resolves an issue not briefed by either

party.
                      IDENTITIES OF PARTIES AND COUNSEL



Appellant:                                                Mario Donta Persons



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

                                                          Mr. scott A. Cornuaud
                                                          2611 Lee St.
                                                          Greenville, Tx 75401



Appellant's Attorney on Appeal:                           Mr. Elisha M. Ho11 is
                                                          2608 Stonewall St.
                                                          P.O. Box 1535
                                                          Greenville, Tx 75403


Appellee's Attorney on Appeal:                            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 St. 3rd Floor
                                                          Greenville, Tx 75401




                                    3.
                             INDEX OF aTTTHORITTES

state case's


     Atkinson V. State, 923 S.W. 2d 27. (Tex. Crim. App. 19961

     Madden V. State, 242 S.W., 3d.>504 (Tex. Crim. App. 20071   r(X<\^ L?-1
    Mendoza V. State, 88 S.W. 3d 236 (Tex. Crim. App. 20021      P(\«ye."^
    Mills V. State, 296 S.W. 3d 843 (Tex. App. Austin 20091       rdX c^^Cp

     STATE STATUTES:

                                                                 V(k<K^ b-1-8
    Tex. Code crim.pro-ann.art. 38.23 (al                            °

    Tex.Trans.Code Ann.Art.545.062                                   J>




                                      4.
                                     STATEMENT REQUESTING ORAL ARGUMENTS



         Mr. Persons Respectfully request oral argument's. He presents an important
issue     which       this     court may have never dealt with in the past. Oral arguments will
benefit     the court by careful explanation of the contours and history of Mr. Persons
claim and to the facts of Mr. Persons Direct Appeal. The Court's decision may pos
sibly     set     a    precedent which may affect every future state Court of Appeals review
in a situation of this nature.




                                             STATEMENT OF THE CASE


        This is an appeal from the judgement and sentence in a criminal case in the
354th District Court in Hunt County, Texas. The Appellant was indicted on October
25,     2013    For    Possession       of   cocaine   in an amount of 400 grams or more, further,
the grand         jury       found   that Appellant had used or exhibited a deadly weapon during
the     commission        of    the offense. After entering a plea of Not Guilty, Appellant el
ected to be            tried and sentenced by a jury. On June 5, 2014 the jury found Appel
lant guilty           and assessed punishment at fifty-five (551 years in the Texas Depart
ment of Criminal Justice—Institutional Division Appellant filed a notice of appeal
on June 18,       2014.




                                       STATEMENT OF PROCEDURAL HISTORY

        The sixth District Court of §peals rendered its decision affirming the con
viction and delivered its written opinion on June 2, 2015 a motion for rehearing
was filed on June 17, 2015 and was OVER RULED on June 30, 2015.




                                                 5.
                       GROUNDS FOR REVIEW



                           GROUND   ONE


Where the distance between the vehicle petitioner was traveling in
and the vehicle his vehicle was behind was a measurable distance in
dispute which the trier of fact could resolve by viewing the police
dash cam video, and where trial counsel requested that the jury charge

include an instruction pursuant to Penal Code 38.23(A), did the
trial court and the Court of Appeals invade the jury's province by
resolving the dispute in justifying the denial of the instruction?

                    REASON FOR GRANTING REVIEW

 The Court of Appeals]) decision is in conflict with this Court's
decisions in Madden v. State, 292 S.W. 3d 504 (Tex.Crim.App. 2007)
and Mills v. State, 296 S.W. 3d 843 (Tex.App^Austin 2009).
                      ARGUMENT AND AUTHORITIES

 The Trooper testified that one of the reasons he performed a tra
ffic stop of the vehicle petitioner was traveling in was because he
observed petitioner's vehicle to close behind another vehicle.
(RR Vol. 7, 45:8-10). The Trooper claimed the distance was less than
150 feet and in violation of the Transportation Code. (RR Vol. 7,:
46: 19-47:11). Petitioner's trial counsel raised the issue of a dis
pute relevant to the actual distance of the car petitioner was in
and the car in front of him. Trial counsel said that an instruction
under Penal Code 38.^3 should be included in the jury charge because
the measurable distance being disputed could be resolved with the
jury's viewing of the Trooper's dash cam video of the cars. The trial court



                               6.
ruled that the video was not sufficient to resolve the proposed-dispute and

denied the instruction (RRVol. 9, 41:19-241. On appeal, the court of appeals ..

held     that       both     the    trial     court    and the court of appeals had their selves

viewed     the       video    and      decided that the distance testified to by the trooper,

was supported by the dash cam.video. It is petitioner's contention that neither

the    trial        court    nor the court of appeals were authorized under 38.23 to re

solve     the       dispute       of   the measurable distance and that it was the sole Pro

vince of the trier of Fact, the Jury to resolve the dispute.

       According to the following Distance statue sec. (545.062) it does not

use or state a measurable distance at all, it makes no reference to the 150

feet The trooper testified to during trial on direct and cross-exam RR Vol
7/34-186—RR            Vol 8/58-81. The trooper also testified that threw his training,

his opinion is that we were following to close. RR7/121

        And     when       such    a   stop    is not based on objective criteria, the risk of

arbitrary        and       abusive,     police       practies   exceeds torelable limits. Allowing

a     police     officer's         opinion     to suffice in specific facts' stead eviscerates

 Terry's      reasonable           suspicion protection. Mere opinions are ineffective sub

 stitutes       for     specific, articulable fact's in a reasonable-suspicion analysis

 Futhermore, the officer's "following too close" conclusion did not constitute

specific articulable facts to support a stop. And cross-examination did reveal

that the officer's definition of "following too close" was not in fact a

description of conduct proscribed by the statue in question! There fore the

Jury was        left with a testimony from the officer that in fact was false, mis

leading       and     Perjured.        The    code    of Criminal Procedure Article 38.23 state

in pertinet part that : "In any case where the legal evidence raises an issue
hereunder,       the Jury shall be instructed that if it believes, or has a reason

able    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

                                                          7.
evidense        so obtained"           Tex.    Code   Crim. Proc. Ann. Art. 38.23 (al The terms

of Art.         38.23    (al     are, mandatory        in nature and grant a statutory right to
the     defendant.       Mendoza V.           State, 88 S.W. 3d 236, 239 (Tex.Crim. App. 20021
But     for this        right        to attach to a defendants case, there must be a factual

dispute regarding              the    legality of the seizure or other act causing evidence
to be obtained illega;;y. See Madden, 242 S.W. 3d at 513-14 a cross-examiner's

question do not              create      a conflict in the evidence, although the witness's

answers        to   those       question mighf'l See also Mill v. State, 296, S.W. 3d 843

(Tex.        App.   Austin      200^1     when such event exists, the .fudge must include in
his final charge a 38.23 (al instruction

        The trial court's improper refusal                   to grant the Appellant's request
for an Art. 38.23 (al Instruction is Reversible error.

        Sec. 545.062 following Distance

(al     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.
(bl     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 vehicle so that a vehicle

passing       the operator can safely enter and occupy the space. This subsection
does not Prohibit a truck or motor vehicle drawing another vehicle from pass
ing another vehicle.

(d An operator on a roadway outside a business or residential district driving
in a caravan of other vehicles or 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.
                        GROUNDS FOR REVIEW


                            GROUND   TWO


Did the Court of Appeals err when it decided an issue that was nei
ther argued by defense counsel or the State in the Appeal briefs?

                    REASON FOR GRANTING REVIEW

 The Court of Appeals* decision is in conflict with the Texas Rules
of Appellate Procedure because it resolves an issue not briefed by
either party.

                     ARGUMENTS AND AUTHORITIES

 The issue raised on appeal by appellate counsel was that the trial
court ruled that the police dash cam video of the traffic stop was
not sufficient to raise a dispute concerning measurable distances
between Petitioner's vehicle and the vehicle he was accused of tail
ing to closely. The Court of Appeals veered from that claim essenti
ally deciding a different issue of whether the video showed whether
Petitioner's vehicle was too closely tailing the vehicle ahead of
his. This review decided an issue that was never raised or brierjed
by either party and denied Petitioner a fair review of his appellate
claims that were raised by his attorney and opposed by the State.
 Due to the Court of Appeals not responding to the specific allega
tions, as raised in his appellant's brief, the Court made an erron
eous legal conclusion relevant to the correct claims made by the
Petitioner's appellate counsel and opposed by the State.




                              9.
                                            Prayer For Relief


        Where     fore,    Premises    considered, Mario Donta Persons, respectfully asks the
Court    to     grant this petition and in regard to Ground number one, The proper remedy
is    to remand for a new trial. There fore, the appellant respectfully asks the Court
to    remand    Ground     number     two   The   Proper Remedy is the same as number one remand
for a new trial which the appelate respectfully pray for.




        The appelant also asks that this Honorable Texas Court of criminals Appeals
make    a findings of Fact and Conclusion of Law concerning both Grounds »1 and Ground
*2.


                                        CERTIFICATE OF SERVICE


        The undersigned hereby certifies that on this && day ofTdp2015 The
following have been completed:
(11     the   original     copy of the above and fore going petition and supporting brief
have been mailed by U.S. mail to the clerk of the court of Criminal Appeals
in Austin, Texas for filing and handling in that court pursuant to Tex.R.
App.P 9.2 of the Texas rules of Appellate procedure.
(2) alegible copy of said petition has been mailed by U.S. mail To KELI M. AIKEN
Fist Assistant District Attorney P.O. Box 441 4th Floor Hunt County Courthouse
Greenville, Texas         75403.




                                                                      MARLQTy>CT«sQg
                                                                      Mario Donta Persons
                                   APPENDIX




Opinion of the Court of Appeals, June 2, 2015



Judgement of Court of Appeals* June 2* 2315


Motion For Rehearing was over ruled   June 30, 2015
                                                                                                  hlLHUUPY




            Chief Justice             Court ofAppeals                                     Clerk
      Josh R. Morriss, III             Sixth Appellate District                     Debra K. Autrey


                Justices
                                          State of Texas                          Bi-State Justice Building
         Bailey C. Moseley                                                    100 North State Line Avenue #20
                                                                                 Texarkana,Texas 75501
         Ralph K. Burgess
                                                                                     (903)798-3046


                                             June 2,2015

Keli M. Aiken                                       Elisha Hollis
Assistant District Attorney                         The Law Office of Elisha Hollis
PO Box 441                                          2608 Stonewall Street
4th Floor, Hunt County Courthouse                   Greenville, TX 75401
Greenville, TX 75401                                * DELIVERED VIA E-MAIL *
* DELIVERED VIA E-MAIL *


Noble D. Walker Jr.
Hunt County District Attorney
Hunt County Courthouse
PO Box441
Greenville, TX 75403-0441
* DELIVERED VIA E-MAIL *

RE:        Appellate Case Number:      06-14-00109-CR
           Trial Court Case Number:    29371


Style:     Mario Donta Persons
           v.

           The State of Texas

The Judgment of the Trial Court in the referenced proceeding on appeal from Hunt County was this date
AFFIRMED, in conformity with the written Opinion of this Court of even date.

A true copy of this Court's Opinion and Judgment is enclosed.

                                                                  Respectfully submitted,

                                                                  Debra K. Autrey, Clerk




                                                                  By.
                                                                                                       Deputy

cc:       Hon. Richard A. Beacom Jr. (DELIVERED VIA E-MAIL)
          Ms. Stacey Landrum (DELIVEREDVIA E-MAIL)
                                Court of Appeals
                         Sixth Appellate District of Texas


                                   JUDGMENT



 Mario Donta Persons, Appellant                        Appeal from the 354th District Court of
                                                       Hunt County, Texas (Tr. Ct. No. 29371).
NO.06-14-00109-CR           v.                         Memorandum Opinion delivered by Justice
                                                       Moseley, Chief Justice Morriss and Justice
The State of Texas, Appellee                           Burgess participating.



       As stated in the Court's opinion of this date, we find no error in the judgment of the court
below. We affirm the judgment of the trial court.
       We note that the appellant, Mario DontaPersons, has adequately indicated his inability to
pay costs of appeal. Therefore, we waive paymentof costs.



                                                      RENDERED JUNE 2, 2015
                                                      BY ORDER OF THE COURT
                                                      JOSH R. MORRISS, III
                                                      CHIEF JUSTICE


ATTEST:
Debra K. Autrey, Clerk
                                                                                          HLtHJUHY




          Chief Justice             Court ofAppeals                               Clerk
      Josh R. Morriss, III           Sixth Appellate District              Debra K. Autrey


              Justices                 State of Texas                     Bi-State Justice Building
      Bailey C. Moseley                                               100 North State Line Avenue #20
                                                                         Texarkana,Texas 75501
      Ralph K. Burgess
                                                                              (903) 798-3046


                                          June 30,2015

Tara Long
Long Law Firm, PLLC
2656 S Loop W., Suite 255
Houston, TX 77054-5632
* DELIVERED VIA E-MAIL *


RE:      Appellate Case Number:      06-14-00109-CR
         Trial Court Case Number:    29371


Style: Mario Donta Persons
         v.

         The State of Texas


The Court entered its order this date in the referenced proceeding whereby Appellant's Motion
for Rehearing was OVERRULED.

PLEASE TAKE DUE NOTICE HEREOF.

                                                            Respectfully submitted,

                                                            Debra K. Autrey, Clerk




                                                            By
                                                                                               Deputy

cc:     Keli M. Aiken (DELIVERED VIA E-MAIL)
        Noble D. Walker Jr. (DELIVERED VIA E-MAIL)
                        In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00109-CR




        MARLO DONTA PERSONS, Appellant

                           V.


           THE STATE OF TEXAS, Appellee




        On Appeal from the 354th District Court
                   Hunt County, Texas
                  Trial Court No. 29371




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                        MEMORANDUM OPINION

        Mario Donta Persons was convicted by a Hunt County jury of possession of a controlled

substance, cocaine, in an amount of 400 grams or more while using or exhibiting a deadly weapon

and was sentenced to fifty-five years in prison. On appeal, Persons claims that the trial court erred

in refusing his request to instruct the jury under Article 38.23(a)1 of the Texas Code of Criminal

Procedure. We find no error by the trial court and affirm its judgment.

I.      Background

        Persons was a passenger in an automobile driven by Brian Woodard2 that was stopped by

Texas Department of Public Safety Trooper Zane Rhone on Interstate Highway 303 (1-30) near

Greenville, Texas. Rhone's testimony involved occurrences in the mid-afternoon of May 11,2013.

At that time, Rhone was seated in his stopped patrol car on the eastbound side of 1-30 when he was

passed by two "showroom clean" automobiles bearing out-of-state license plates.4 Rhone followed


'Article 38.23(a) provides,

            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. Ann. art. 38.23(a) (West 2005).

2This automobile will be referred to as "the Persons Vehicle."

3Rhone identified Interstate Highway 30 as "a major drug corridor."

"Rhone explained that people involved in drug trafficking will habitually wash their automobiles in an attempt to
prevent alerts by drug-sniffing dogs.
the automobiles in order to check the numbers on their license plates to determine if such a search

would reveal something amiss with the automobiles. As Rhone approached the automobiles, the

Persons Vehicle moved from the left lane to the right lane, behind the other vehicle of interest.

Rhone noticed that the Persons Vehicle was following the lead vehicle at an unsafe distance, and

Rhone slowed down to pull behind the Persons Vehicle. Rhone testified that after he had pulled

over into the lane behind the Persons Vehicle, he observed that the license plate on the Persons

Vehicle was also partially obstructed by a bracket or license plate frame. Since following another

automobile at an unsafe distance5 and driving with an obscured license plate6 are both violations

of the Texas Transportation Code, Rhone initiated a traffic stop of the Persons Vehicle. After an

initial interview with the driver, Rhone obtained the driver's consentto searchthe vehicle.7 During

his search, Rhone found a loaded gun in the glove box and a kilo-sized brick of what was later

determined to be cocaine in the engine compartment. The State also introduced a redacted video

recording of the events leading up to and including the traffic stop taken from Rhone's dash-

mounted camera, which was published to the jury.

        During cross-examination, Rhone testified that the driver of the Persons Vehicle violated

the Texas Transportation Code by operating an automobile with an obscured license plate (one in

which the name of the issuing State is more than fifty percent obscured). He said that most of the

name of the issuing state (Ohio) on the license plate was covered by the bracket. Mack Woodard,



5See Tex. Transp. Code Ann. § 545.062(a) (West 2011).

6See TEX. Transp. Code Ann. § 504.945(a)(7)(B) (West Supp. 2014).

'Persons does not challenge the consensual nature of the search.
                                                         3
the owner of the Persons Vehicle, testified that the automobile dealership that sold him the vehicle

had placed the bracket on the license plate and that even with the license plate bracket in place, he

was able to see more than fifty percent of the state name Ohio on the license plate. Through

Woodard, Persons also introduced photographs of the license plate and bracket on the Persons

Vehicle taken from different angles, some of which tended to show that more than fifty percent of

the state name Ohio might be visible from those angles. When Persons recalled Rhone, he again

questioned him extensively about his ability to see the state name on the license plate. Rhone

repeated his assertion that when he pulled his patrol car behind the Persons Vehicle, he could not

read Ohio on the license plate. Rhone also testified that the recording shows that the Persons

Vehicle was following the car in front of it too closely and that the jury would be able to see that

on the video recording. Persons did not call any witness to dispute Rhone's testimony that the

Persons Vehicle was following the lead vehicle at an unsafe distance.

        At the charge conference, although Persons requested the inclusion of an Article 38.23(a)

instruction permitting the jury to disregard evidence if it believed that the evidence had been

wrongfully obtained, the trial court rejected that instruction

II.     Persons Was Not Entitled to an Article 38.23(a) Instruction

        Persons' sole point of error on appeal is his contention that the trial court erred in failing

to give an Article 38.23(a) instruction. Both the United States and Texas Constitutions are

implicated by a routine traffic stop, and under both, the stop must be reasonable. Berkemer v.
McCarty, 468 U.S. 420 (1984); Earl v. State, 362 S.W.3d 801, 802 n.2 (Tex. App.—Texarkana
2012, pet. refd); see U.S. CONST, amend. IV; TEX. CONST, art. I, §9. To conduct a constitutionally
valid traffic stop, an officer must have a reasonable suspicion based on '"specific^] articulable

facts that, when combined with rational inferences from those facts, would lead [the officer] to

reasonably suspect that [the person stopped] has engaged or is (or soon will be) engaging in

criminal activity.'" Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012) (quoting York

v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011)); Zervos v. State, 15 S.W.3d 146, 151 (Tex.

App.—Texarkana 2000, pet. ref d). Since the reasonable suspicion standard is an objective

standard, the subjective intent of the officer making the stop is irrelevant. Hamal, 390 S.W.3d at

306; York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011). "If an officer has a reasonable

basis for suspecting that a person has committed a traffic offense, the officer may legally initiate

a traffic stop." Zervos, 15 S.W.3d at 151 (emphasis in original); Graves v. State, 307 S.W.3d 483,

489 (Tex. App.—Texarkana 2010, pet. ref d).

         If a fact issue has been raised about whether the traffic stop violated the Constitution or

laws of either the United States or Texas, the trial court should submit a jury instruction to

disregard evidence the jury finds was obtained in violation the Constitution or laws of the United

States or Texas. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a); Hamal, 390 S.W.3d at 306.

However, an Article 38.23(a) instruction is "mandatory only when there is a factual dispute

regarding the legality of the search." Williams v. State, 356 S.W.3d 508, 525 (Tex. App.—

Texarkana 2011, pet. ref d) (citing Pickens v. State, 165 S.W.3d 675,680 (Tex. Crim. App. 2005)).

To be entitled to an instruction under Article 38.23(a), the following factors must be shown to

exist:
       (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)     That contested factual issue must be material to the lawfulness of the
               challenged conduct in obtaining the evidence.

Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007); Williams, 356 S.W.3d at 526.

However, if there are facts not in dispute that are sufficient to support the legality ofthe challenged

conduct, "the disputed fact issue is not submitted to the jury because it is not material to the

ultimate admissibility of the evidence." Madden, 242 S.W.3d at 510. Thus, when an officer

articulates more than one reason for a traffic stop, the defendant must show that there is a disputed

factual issue as to each reason to be entitled to an Article 38.23(a) instruction. See, e.g., Gerron

v. State, 119 S.W.3d 371, 376-77 (Tex. App.—Waco 2003, no pet.) (when officer testified he saw

defendant commit at least three traffic violations but defendant only disputed one, defendant not

entitled to Article 38.23(a) jury instruction); Reynosa v. State, 996 S.W.2d 238, 240 (Tex. App.—

Houston [1st Dist.] 1999, no pet.) (same).

        Persons argues that there is a factual dispute as to both the obstructed license plate and

following at an unsafe distance. Regarding the issue of following at an unsafe distance, Persons

argues that when he played the video recording during his cross-examination of Rhone, this fact

alone was a sufficient challenge to that fact so as to raise a fact issue. In other words, Persons

maintains that because the jury was able to see the recording, which showed the position of the

two automobiles, the jury was able to determine whether Rhone's testimony was correct. This,

Persons posits, provided the basis for the requested jury instruction. In Madden, the appellant also

contended that the video recording from the officer's dash-mounted camera (a recording that
                                                   6
Madden claimed contradicted the officer's testimony that Madden was acting in a nervous manner)

was "affirmative evidence" that raised a fact issue. Madden, 242 S.W.3d at 515-16. The Texas

Court of Criminal Appeals pointed out that "[o]nly if the video clearly showed that appellant

affirmatively did not do something that [the officer] said that he did do, and the video clearly would

have shown that conduct if it had occurred, would there be some affirmative evidence of a disputed

historical fact." Id. at 516. At the trial below, Rhone testified that the two vehicles were travelling

at a speed of seventy miles per hour and that a safe following distance at that speed would be at

least 150 feet.    He also testified that the Persons Vehicle was following the lead vehicle at a

distance of thirty to forty feet. The trial court found that the video recording confirmed Rhone's

trial testimony that he stopped the Persons Vehicle for following the vehicle in front of it too

closely.

           We have viewed the video recording and have listened to its audio. It shows the Persons

vehicle following at a distance significantly less than 150 feet; the recording reflects that Rhone

stated, as he activated his emergency lights, his intention to perform a traffic stop for following

too closely and due to an obstructed license plate. We agree with the trial court that the video

recording supports Rhone's trial testimony and that it raises no contested fact issue.

           Since Rhone's stop of the Persons Vehicle for following at an unsafe distance is not in

dispute and since this would supportthe legality of the traffic stop, Persons was not entitledto an

Article 38.23(a) instruction. Wefindthat the trial courtdid not err, and we overrule Persons' point

of error.
      We affirm the judgment of the trial court.




                                            Bailey C. Moseley
                                            Justice

Date Submitted:      May 27, 2015
Date Decided:        June 2, 2015

Do Not Publish
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