                                                                    PD-1005-15
                                                 COURT OF CRIMINAL APPEALS
                                                                  AUSTIN, TEXAS
                                                 Transmitted 8/5/2015 11:43:34 AM
                    No. __________________          Accepted 8/6/2015 4:11:53 PM
                                                                   ABEL ACOSTA
                                                                           CLERK
     IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                    Donna Marie Pryor
                          Appellant
                                                         AUGUST 6, 2015
                              v.
                    The State of Texas
                          Appellee
  On Appeal from the 207th District Court of Comal County in
Case No. CR2012-208, the Hon. Jack Robison, Judge Presiding;
 and the Opinion of the Third Court of Appeals in Case No. 03-
            13-00347-CR, Delivered May 1, 2015.


      Petition For Discretionary Review

                        Submitted by:
       John G. Jasuta                David A. Schulman
       Attorney at Law                 Attorney at Law
  lawyer1@johngjasuta.com      zdrdavida@davidschulman.com
State Bar Card No. 10592300     State Bar Card No. 17833400

            1801 East 51st Street, Suite 365-474
                   Austin, Texas 78723
                    Tel. 512-474-4747
                   Fax: 512-532-6282
               Attorneys for Donna Marie Pryor
                 Identity of Parties and Counsel
      Pursuant to Rule 38.1(a), Rules of Appellate Procedure (“Tex.R.App.Pro.”),
the following is a complete list of the names and addresses of all parties to the
trial court’s final judgment and their counsel in the trial court, as well as
appellate counsel, so the members of the Court may at once determine whether
they are disqualified to serve or should recuse themselves from participating in
the decision of the case and so the Clerk of the Court may properly notify the
parties to the trial court’s final judgment or their counsel, if any, of the judgment
and all orders of the Court of Appeals.

                                  Appellant
                              Donna Marie Pryor
                              TDCJ No. 01859201
          Trial Counsel                            Appellate Counsel
         Philip A. Perez                          David A. Schulman
         SBN 24048722                                 SBN 17833400
    110 Broadway, Suite 444                         John G. Jasuta
    San Antonio, Texas 78205                         SBN 10592300
                                              1801 East 51st St., Ste 365-474
                                                   Austin, Texas 78723

                               State of Texas
           Jennifer Tharp                              Lisa McMinn
         District Attorney                       State Prosecuting Attorney
   150 North Seguin St., Ste 307                       SBN 13803300
   New Braunfels, Texas 78130                      Post Office Box 13046
                                                    Austin, Texas 78711
           Trial Counsel
         Sammy McCrary
            SBN 90001990

        Appellate Counsel
          Joshua Presley
            SBN 24088254
          Clay Hearrell
          SBN 24059919

                                          i
                              Table of Contents


Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . v

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . v

Facts of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Ground for Review Restated. . . . . . . . . . . . . . . . . . . . . . . . . . . 2

      The Court of Appeals Erred by Conducting an
      Incomplete Review of the Facts and the Law.

Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Summary of the Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Arguments & Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Certificate of Compliance and Delivery. . . . . . . . . . . . . . . . . . 15




                                             ii
                         Index of Authorities


Texas Cases:

Guerrero v. State, 305 S.W.3d 546 (Tex.Cr.App. 2009). . . . . . 7

Jones v. State, 493 S.W.2d 933 (Tex.Cr.App. 1973). . . . . . . 11

Madden v. State, 242 S.W.3d 504 (Tex.Cr.App. 2007).. . . . . . 5

Mahaffey v. State, 316 S.W.3d 633 (Tex.Cr.App. 2010). . . . 13

Pryor v. State, 03-13-00347-CR
    (Tex.App. - Austin; May 1, 2015).. . . . . . . . . . . . . vi, 5, 7, 8

Robinson v. State, 377 S.W.3d 712
    (Tex.Cr.App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Sharp v. State, 495 S.W.2d 906 (Tex.Cr.App. 1973). . . . . . . 11

State v. Duran, 396 S.W.3d 563 (Tex.Cr.App. 2013). . . . . . . . 5

Trahan v. State, 16 S.W.3d 146
    (Tex.App - Beaumont 2000) . . . . . . . . . . . . . . . . . . . . . . 13

Vennus v. State, 282 S.W.3d 70 (Tex.Cr.App. 2009). . . . . . . 11


Texas Statutes / Codes:

     Code of Criminal Procedure

           Article 38.23... . . . . . . . . . . . . . . . . . . . . . . . . . . v, 11


                                        iii
                      Index of Authorities
                                  (CONT)

Texas Statutes / Codes (CONT):

   Penal Code

       Section 49.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

       Section 49.09(b)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . v

   Transportation Code

       Section 545.104(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 4

   Rules of Appellate Procedure

       Rule 38.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

       Rule 66.3(f) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8




                                      iv
           Statement Regarding Oral Argument

     Because of complexity of the expert witness issue involved,

the undersigned believe that oral argument will benefit the parties

and assist the Court. Appellant therefore requests the opportunity

to present oral argument in this case.

                   Statement of the Case

     This case involves the question of what constitutes a “factual

dispute” withing the meaning of Article 38.23, C.Cr.P., and when

a trial court is required to instruct the jury pursuant to that

article.

             Statement of Procedural History

     A jury found Appellant guilty of driving while intoxicated with

two previous similar convictions, a third-degree felony under Penal

Code §§ 49.04 and 49.09(b)(2). After finding that Appellant 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. Notice of Appeal

was timely given on May 15, 2013.

                                 v
    The Court of Appeals’ opinion from which review is sought

was delivered by the Third Court of Appeals in Pryor v. State,

03-13-00347-CR (Tex.App. - Austin; May 1, 2015). Motion for

rehearing was timely filed, but denied on July 6, 2015.         This

petition is timely filed if presented to the Clerk of the Court on or

before August 5, 2015.




                                 vi
                        No. ____________________
      IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                          Donna Marie Pryor
                                    Appellant
                                          v.
                          The State of Texas
                                     Appellee
    On Appeal from the 207th District Court of Comal County in
    Case No. CR2012-208, the Hon. Jack Robison, Judge Presiding;
    and the Opinion of the Third Court of Appeals in Case No. 03-13-
    00347-CR, Delivered May 1, 2015.



       Petition For Discretionary Review

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

    COMES NOW, Donna Marie Pryor, Appellant in the above

styled and numbered cause, by and through David A. Schulman

and John G. Jasuta, her undersigned attorneys of record, and

respectfully files her “Petition for Discretionary Review,” and would

show the Court as follows:

                           Facts of the Case
                       (From the Opinion of the Court of Appeals)

    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.

                                           1
    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.

                  Ground for Review Restated

    The Court of Appeals Erred by Conducting an
    Incomplete Review of the Facts and the Law.

                             Relevant Facts

    Appellant was stopped and interrogated while driving. This

allegedly occurred because she did not signal her intention to

make a turn at least 100 feet prior to a turn she actually made (RR

Vol. 3, PP. 25-26, 33-36).

    Appellant did not testify at trial. A video from the deputy’s

in-car camera (State’s Exhibit #3), however, was introduced into

evidence (RR Vol. 3, P. 60). No other evidence of the traffic stop

was before the jury.        There were, therefore, two separate and

distinct sources of information regarding whether or not Appellant

violated the law such as to allow the deputy’s intervention: Î the

deputy’s testimony, and Ï State’s Exhibit #3.




                                        2
     Appellant requested the jury be instructed on the law of

Article 38.23, C.Cr.P., with regard to the legality of the stop. The

trial court refused that request (RR Vol. 3, PP. 149-155). The

lower court affirmed the conviction and the failure of the trial

court to correctly charge the jury.

                 Summary of the Argument

     The Court of Appeals erred by avoiding the facts as shown,

minimizing them and, in so doing, conducted an incomplete review

of both the facts and the law, resulting in error as to both.

                  Arguments & Authorities

     The Court of Appeals erred in its opinion by minimizing or

omitting entirely any mention of crucial evidence shown in the

video recording of the traffic encounter which demonstrated the

existence of a fact issue. This failure on the part of the Court

below resulted in an incomplete and inadequate review of the

evidence supporting the necessity for submission of the issue of

the legality of the traffic stop to the jury pursuant to Article 38.23,

C.Cr.P., as requested at trial, and required on appeal.

                                  3
      Corporal Mueck, the deputy who made the traffic stop which

led to his discovery of evidence of intoxication, testified that he

made the stop because Appellant had failed to signal her intention

to turn from one highway to another for at least 100 feet (RR Vol.

3, PP. 2-33), a violation of section 545.104(b) of the Transportation

Code.1 As the deputy’s “in-car camera” video (State’s Exhibit #3)

was admitted into evidence, the record contained evidence which

a reasonable trier of fact could determine contradicted Mueck’s

testimony, and constituted evidence which would have allowed the

jury to test the truthfulness and reasonableness of the deputy’s

assertion as to at which point Appellant activated her turn signal,

and the length of travel from that point until she actually began

the turn. The Court of Appeals ignored this evidence, disguising

it by minimization.

      Initially, the Court of Appeals recognized the issue before it.

Nevertheless, it failed to recognize the difference between the cases

upon which it relied and the case at bar, in which the

 1
    “An operator intending to turn a vehicle right or left shall signal continuously
for not less than the last 100 feet of movement of the vehicle before the turn.”

                                         4
reasonableness of the deputy’s belief is easily ascertainable. The

Court of Appeals wrote:

    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.”).

Pryor, slip op. at 3. In the case at bar, unlike Madden v. State,

242 S.W.3d 504 (Tex.Cr.App. 2007), referred to by the court below,

the issue of whether the officer had a reasonable suspicion or

belief was easily resolved by a fair viewing of the video evidence.

The question is whether the members of the jury could have

believed that the turn signal was operating continuously for 100

feet prior to the Appellant actually making her intended turn.

Madden, 242 S.W.3d at 516; State v. Duran, 396 S.W.3d 563,

568 (Tex.Cr.App. 2013).

    Deputy Muck was obviously confused regarding the

requirements of the law during trial, as evidenced by his

announced decision to effect a traffic stop, while both he and


                                        5
Appellant were stopped at the traffic signal. See (RR Vol. 3, PP.

150-152, 154). The fact that the vehicle moved for some distance

after the change of the traffic signal and prior to making the turn

was not factored into either the discussion or the decision to reject

the charge. The prosecutor did not explain the markers he used

to determine his opinion that, “Clearly it is not 100 feet. If you

watch the video, there is . . ..” (RR Vol. 3, P. 154). Nevertheless,

in deciding whether the jury should have evaluated the video

evidence, it should be presumed that the jury would have been

correctly charged on the correct definition of “turn,” including

when such a “turn” is made under the law and the requirement to

signal until the turn, and not the intersection.

    Additionally, the lower court mis-described the video when it

continued:

    Having reviewed the video, we 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. 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.




                                          6
Pryor, slip op. at 3-4 (footnote omitted). The phrases used by the

court, “move forward a bit,” and “and then turn left,” are

inaccurate, misleading and minimize the evidence beyond

description.

    The jury had two sources of information regarding whether or

not Appellant violated the law such as to allow the deputy’s

intervention, the deputy’s testimony and State’s Exhibit #3, the

video which the deputy’s in-car camera recorded (RR Vol. 3, P. 60).

That evidence must be fairly viewed both from the perspective of

what the video showed and the requirements of the law, if for no

other reason than to ensure due process rights to a fair appeal --

something the Court of Appeals did not do -- but should have.

Due process of law is a part of the appellate process. See Guerrero

v. State, 305 S.W.3d 546, 561 (Tex.Cr.App. 2009).

    By its incomplete review of both the facts, clearly shown on

the video, and the law, Appellant submits, the Court of Appeals

violated Appellant’s right to due process of law. It has so far

departed from the accepted and usual course of judicial


                                7
proceedings such as to call for the exercise of this Court’s power

of supervision, as provided in Rule 66.3(f), Tex.R.App.Pro.

    A truly fair viewing of the evidence would show that the video

clearly demonstrated a factual issue which could only be resolved

by interpretation of the video. There were no side-of-the-road

markers showing the distances between various points but there

were physical objects shown from which inferences about

distances could have been drawn. The Court of Appeals’ holding,

however, does not discuss the presence of those markers and their

potential to allow resolution of the factual issue. Instead, the

Court marginalized the evidence by its dismissive language, and,

in so doing, ignored its importance.

    At oral argument before the Court of Appeals, both Appellant

and the State utilized visual aids. Appellant offered two aerial

photographs showing the intersection.      They are included as

Exhibits “B” and “C” in the appendix.

    The Court rejected Appellant’s request that it take judicial

notice of the photographs. Pryor, slip op. at 4, FN 2.        In its


                                8
rejection the Court described the photographs as “allegedly”

showing the intersection, despite the State’s failure to object to

them; and despite the State’s offer of a photograph of the same

intersection, albeit with a distance scale included. Despite the

Court of Appeals’ failure to see the relevant nature of the

photographs provided by Appellant, both did show precisely that

which was depicted on the video, and demonstrated the reason the

fact issue should have been presented to the jury as requested.

    In fact, the video showed that the automobile crossed an

asphalt to concrete demarcation on the pavement at the time the

turn signal was turned on. Five seconds later the car stopped in

front of the crosswalk area of the intersection, where it sat for

twenty-seven seconds with its turn signal continuously flashing.

    The distance between the pavement demarcation and the

crosswalk area, as shown in the video, is an estimable distance

and could easily have been three to five car lengths, a distance of

thirty-five to fifty feet. The Court, however, inaccurately wrote,




                                9
“move forward a bit,” in its effort to minimize the evidence. A truly

fair viewing of the video, however, would have shown even more.

    Such a fair viewing of the video’s audio portion would reveal

the deputy made his decision to stop the vehicle at the time

Appellant was stopped at the traffic signal controlled intersection,

some distance before the turn prior to which signaling is required,

and at a time at which the deputy could not know whether a turn

would actually be made. That the turn which was actually made

could have been legally made after one additional lane from that

which was made, adding yet more distance, was a fact the deputy

could not foresee and did not consider, much like the fact that,

had no turn been made, no violation would have occurred.

    When Appellant proceeded, following the signal change to

green, the video plainly showed the automobile crossing the

crosswalk area, and then four lanes of traffic, three of which were

on-coming, along with a center median with support poles holding




                                 10
the Highway 281 bridge, all before she made the turn.2 That took

eight seconds of video time, yet the Court described it as, “and

then turn left.”

     The only real question is whether there was a factual dispute.

The answer to that question is “absolutely.” The in-car video does

nothing but demonstrate that truth, and minimizing the facts only

serves to conceal it. The truth of the video was mis-described in

the opinion of the court below to the extent that the requirements

of the law were avoided.

     It has long been the law that questions of law need not be

submitted to the jury pursuant to Article 38.23, C.Cr.P. Sharp v.

State, 495 S.W.2d 906, 908 (Tex.Cr.App. 1973). For just as long,

the law has required questions of fact to be submitted to the jury,

upon the defendant’s request. See Jones v. State, 493 S.W.2d

933, 936 (Tex.Cr.App. 1973); see also Vennus v. State, 282

S.W.3d 70, 80 (Tex.Cr.App. 2009).


 2
    Perhaps one of the jurors would have known, or could have determined from
the video evidence, that the average width of a lane on a Texas highway is twelve
feet.

                                       11
    This Court has held:

    When evidence presented before the jury raises a question of whether the
    fruits of a police-initiated search or arrest were illegally obtained, “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.”

Robinson v. State, 377 S.W.3d 712, 719 (Tex.Cr.App. 2012). The

Court continued, stating that the defendant must show:

    (1) an issue of historical fact was raised in front of the jury; (2) the fact was
    contested by affirmative evidence at trial; and (3) the fact is material to the
    constitutional or statutory violation that the defendant has identified as
    rendering the particular evidence inadmissible.

Robinson, 377 S.W.3d at 719. “[T]he terms of the statute are

mandatory, and the jury must be instructed accordingly.”

Robinson , 377 S.W.3d at 719.

    The issue of whether or not Appellant’s turn signal was

continuously activated for 100 feet prior to beginning the legal

turn she actually made was squarely raised by the evidence

presented     to    the     jury.        That      jury     could      consider         the

reasonableness of the deputy’s view of the physical landmarks and




                                          12
the distances involved as applied to the law of turning,3 both by

the opinion testimony of the deputy, and by the empirical evidence

represented by State’s Exhibit #3, the video of the incident.

     The lower court’s inadequate and incomplete review of the

video evidence does not change the fact that the jury could have

easily disagreed with the deputy’s perception.                 That court’s

inadequate viewing and description of the video evidence led to a

misapplication of the law requiring submission of such factual

disputes to the jury as set out in Robinson, supra, and requires

review.

                               Conclusion

     Every fact before the jury relating to the reasonableness of the

deputy’s decision that Appellant had, or was about to, violate the

law, was on the video. The Court of Appeals’ efforts to minimize

that evidence through the use of marginalizing phraseology led the


 3
    “Turn” has been defined by this Court as meaning “to change directions”, in
Mahaffey v. State, 316 S.W.3d 633 (Tex.Cr.App. 2010), while it has been held
that a ninety degree turn was the type of turn envisioned by the applicable
statute. Trahan v. State, 16 S.W.3d 146 (Tex.App - Beaumont 2000). These
holdings are consistent with section 545.101(b) of the Transportation Code.

                                      13
lower court into error. This error requires discretionary review

and, ultimately, a new trial be granted.

                               Prayer

     WHEREFORE, PREMISES CONSIDERED, Donna Marie Pryor,

Appellant in the above styled and numbered cause respectfully

prays that the Court will consider and grant her petition for

discretionary review and, upon submission of the case, will vacate

the decision of the Court of Appeals and remand the case to the

trial court for a new trial.

                      Respectfully submitted,


_______________________________   ________________________________
John G. Jasuta                    David A. Schulman
Attorney at Law                   Attorney at Law
lawyer1@johngjasuta.com           zdrdavida@davidschulman.com

State Bar No. 10592300            State Bar Card No. 17833400

               1801 East 51st Street, Suite 365-474
                      Austin, Texas 78723
                       Tel. 512-474-4747
                       Fax: 512-532-6282
                 Attorneys for Donna Marie Pryor



                                 14
            Certificate of Compliance and Delivery

      This is to certify that: (1) this document, created using

WordPerfect™ X7 software, contains 2,626 words, excluding those

items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies

with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on

XXXX, a true and correct copy of the above and foregoing “Petition

for Discretionary Review” was transmitted via the eService

function on the State’s eFiling portal, to Joshua Presley

( preslj@co.comal.tx.us )                and   Clayten       Hearrell

(hearrc@co.comal.tx.us), counsel of record for the State of Texas,

and    to    Lisa   McMinn,   the    State’s   Prosecuting   Attorney

(lisa.mcminn@spa.state.tx.us).



                              ______________________________________
                              John G. Jasuta




                                    15
Exhibit “A”



     16
      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



                                                  2
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




                                                  11
Exhibit “B”



     17
January 29, 2010
Exhibit “C”



     18
April 21, 2012
