### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00347- CR

Donna Marie P ryor, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2012 -20 8, H ONO RAB LE JACK RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
A jury found appe llant Donna Mar ie Pry or guilty of driving while intox icated w ith two previous similar convictions, a third- deg ree felony

. See Tex. P enal Code §§ 49.04, .09( b)(2)

. After finding that Pry or had previously been convicted of three additional felonies, the jury assessed punishment a t 99 y ear s’ imprisonment, and the trial court rende red judgme nt on the jury ’s verdic t. See id. § 12.42(d). I n her f irst point of error , Pry or contends that the t rial court err ed by failing to submit a jury instruction pursuant to Texas Code of Criminal Procedur e article 38.23. I n her second point of err or, Pry or arg ues that the trial court err ed by overr uling her objections to por tions of the State’s closing arg ument. We will affirm the trial c ourt’s judg ment of convic tion.DISCUSSIO N

Article 38.23
At trial, a deputy with the C o m al County Sheriff’ s Offic e testified conce rning the traff ic stop that led to Pry or’s arr est. Acc ording to the deputy , he s t o p p ed P ry or afte r observing her ma ke a tur

n without signaling for a

t least 100 fee t be fore turning , a violation of law. See Tex. Transp. Code § 545.104(b). T h e deputy further testified that he administered standardized field sobriety tests, deter

mined that Pry or was intox icated, and arrested her. The S tate a l s o produce d a video of the e ncounter

rec orded by

the deputy ’s in-ca

r ca mera , which the tria l court admitted.
At the charg e confere nce, Pry or requested that the t ri al co urt submit an ins truction to the jury

pursuant to ar

ticle 38.23, which state s,

No evidenc e obtained by an office r or other person in violation of any provisions of the C onstitut ion or l aws of the S tate of Texas, or of the Constitution or laws of the United S tates of America , shall be admitted in evidenc e aga inst the accused on the trial of any

criminal ca se. I n any case wher e the leg al evidenc e raises an issue h er eu n d er , t he jury shall be instructed that if it believes, or has a rea sonable doubt, that the evidenc e was obtained in violation of the provisions of this Article, then and i n s u ch event, the jury shall disreg ard a

ny such evide nce so obta ined.

Tex. Code Crim. P roc. a

rt. 38.23(a) . The trial c ourt denied Pry or’s re quest.
I n her first point of err or, Pry or contends that the trial court err ed by deny ing her
reque st for an instructio n u n d er ar t i cle 38.23 beca use the State’s video was evidenc e that would have allowed the jury to deter mine, contra

ry t o t h e d eputy ’s testimony , that Pry or did not violate the law by failing to signa l at least 100 fee t befo re t u rn i n g
. We understand Pry or to be arg uing

2that if she did not violate t h e l aw , t h en i t was illega l for the office r to pull her over. I f the traff ic stop was il l ega l , ar t i cl e 38.23 would have require d the jury to disreg ard all of the evidenc e of Pry or’s int ox ication g ather ed af ter the stop. And i f t hat evidence had been excluded, there would be insuffic ient evidenc e to support her conviction.
A defe ndant must meet three require ments for the trial court to submit an instruction pursuant to ar t i cl e 3 8.23: “(1) the evidenc e hear d by the jury must raise an issue of fac t; (2) the evidenc e on that fac t must be aff irmatively contested; and (3) the contested fac t u al i s s u e must be materia l to the lawf

u l n es s o f the challeng ed 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)).
Her e, the only two piece s of evidenc e re l evant to Pry or’s alleg ed failure to proper ly signa l wer e the deputy ’s testimony and the video. See id. (“This fac tual dispute can be raised only by aff irmative evidenc e, not by mere cross-e x amination questions or arg ument.”). Thus, the issue befor e this Court is whether the trial court err ed in concluding that the video did not aff irmatively contest the deputy ’s testimony conce rning Pry or’s alleg ed failure to proper ly signa l as it rela tes to the lawfulne ss of the traff ic stop. Although Pry or arg ues that the video raises a fac t question as to whether she signa led
at least 100 fee t befor e turning , the materia l question is whether the deputy had rea sonable suspicion that she had violated t he law. See M adden , 242 S.W .3d at 516 (“ The re al fa ctual issue is whethe r Trooper L ily rea sonably believed that appellant was ac t i n g i n 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 of fice r must ha ve re asonable suspicion that some crime wa s, or is about to be, committed befor e he may make a traff ic stop.”). Having revie wed the video, we 3conclu d e t h at the video does not clea rly show that it was unrea sonable for the deputy to suspect that Pry or had violate d the law by failing to signa l for at least 100 fee t befor e turning

. The video 1
shows Pry or activate her turn signa l, move forwa rd a bit, stop at a traff

ic light, and then turn left.
But the video does not indicate prec ise distances, nor does it show Pry or signa ling so far in advanc e that it would have been unrea sonable for the office r to believe she had violated the law. There fore , Pry or has not demonstrated that ev i d en ce prese nted at trial aff irmatively contested the deputy ’s testimony

. As a result, the trial court did not err in not submitt ing an instruction under article 38.23.
Acc ording ly , we ove rrule Pry or’s fir st point of error

. 2

Jury argum ent

I n her second point of err or, Pry or arg ues that cer tain comments the prosec utor made during closing arg ument at t he punis hment phase of trial wer e im p ro p er beca use t hey encour ag ed the jury to consider pa

role lawin calcula ting Pry or’s sente nce.

This case is distinguishable from Mills v. Stat e , in which thi s Court held that the district 1 c o u r t e r r e d in r e f u s in g th e d e f

e n d a n t’ s r e q u e s t f o r a n in s tr u c ti o n u n d e r a r ti c le 3 8

. 2 3

. S

e e M il ls v
. S ta te , 2 9 6 S. W. 3 d 8 4 3 , 8 4 8

–

4 9 ( T e x. A

p p
. — A u s ti n 2 0 0 9 , p e t. r e f

’ d )

. I n M il ls , u n li k e in th is c a s e , th e o f

f ic e r who t estified that the defendant failed t o signa l for at least 100 fee t befor e the turn acknow ledg ed on cross-e x amination that obstacles may have obstructed his view. See id. at 847–48. T h i s C o u rt conclude d that the office r’s testimony , combined with video evidenc e, raised a materia l question of fac t. See id. at 848. Her e, howe ver, the re w as no such e quivocation in the offic er’ s testimony

. Pending be fore this Court i s Pry or’s motion reque sting that we take judicial notice of an 2 aer ial photogr aph alleg edly depicting the intersec t i o n at i s s u e in this case
. We conclude that this photogr aph is not rele vant to a deter mination of whether the evidenc e admitted at trial raised a fac t question conce rning rea sonable suspicion. Acc ording ly , we deny the motion. See W atkins 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 fac t w hen the underly ing data or materia ls in support of that notice are prese nted for the first t i m e i n t hat court should be a matter of the appellate court’s discretion, neve r manda tory .”). 4During the State’s closingarg ument, the following exchang e occ urre d:

[P r o s e c u to r :] I f y o u lo o k

— s o to e xp la in h o w th a

t w o r k s , if y o u s e n te n c e th e d e f

e n d a n t to 1000 y ear s, a quarter of 1000 y ears is 250. 15 is less. So if y ou g ive s omebody 1000 y ear s, 15 y ear s y ou can g et par oled. I f y ou g ive somebody life, 15 y ear s they can g et par ole. And I think that’s i mportant for y ou to know because if it rea lly m ea n t life, m ay be that would seem harsh, but it ain’t what it means. I f y ou don’t believe it, y ou hear d the par ole offic er he re te stify she wa s able to par ole in six y ear s on— [Defense counsel:] Objection; improper ar g ument, J udg e. [Trial court:] Overruled, Counsel. [P rosec utor:] She was elig ible for parole in eig ht m o n t hs on a six y ear sentenc e. That’s how f

ast y ou can tur

n somebody

out on this ki nd of thing

. Part of that is the fac t that the law also provides that y ou can g et g ood conduct time on that sentenc e. So for every day that y ou are in, they can g ive y ou a day of g ood conduct. So it isn’t 15 y ear s, it is seven and a half, beca use once y ou g et an extra day for ever y day y ou are in, it cuts it in half. So a life se ntence , seven a nd a half y ear s y ou can g et out. And what that tells y ou at the end of the day

— [Defense counsel:] Objection, improper a rg ument, Your Honor

. [Trial court:] Overruled.

***** [P rosec utor:] Giving somebody a life sentenc e, they can be back out on the road in about seven and a half y ear s. An d t h e o t her thing y ou need to know is that all the time some body

is in jail prior to this day they g et cre dit f or it, so that comes off the seven a nd a half y ear s. So I know when I

talked the other

day in voir dire, some people thought it sounde d harsh, the rang e of punishment. That’s their rig ht to fee l that way , but a t the end of the day it doesn’t mean that.

5I n Texas we like to talk tough on crime and ever y two y ear s the leg islature meets and they make up a first deg ree felony and talk about how they g et life imprisonment— [Defense counsel:] Objection; improper ar g ument, Your Honor

. [Trial court:] Overruled. [P rosec utor:] They g et their name in the newspa per. What they don’t tell y ou is they c r e a te p a r o le b o a r d s th a t c r e a te a ll th e s e f

a n c y p a r o le la w s
. M y w if

e c a ll s it d o g y e a

r s
. Ba sically what it is.
I t is a sad commentar

y o n our sy stem that we set it up in such a way , beca use it doesn’t mea

n what it tells y ou.

We revie w a trial court’s ruling on an objection to impr o p er j u ry arg ument for an abuse of discretion. Nzewi v. State , 359 S.W .3d 829, 841 (Tex. App.—Houston [14t h 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 arbitra rily or unrea sonably , witho u t re fe rence to any g uiding rules and principles. Montgo me ry v. State , 810 S.W .2d 372, 380 (Tex. Crim. App.1990). “[P] roper jury

a r g u me n t g e n e r a ll y f

a ll s w i t h i n o n e o f f

o u r g e n e r a l a r e a s : ( 1 ) s u

mm a ti o n o f th e e v id e n c e ; ( 2 ) r e a s o n a b le deduction from the evidenc e; (3) answe r to arg ument of opposing counsel; an d (4 ) plea for law enfor ceme nt.” Brown v. State , 270 S.W .3d 564, 570 (Tex. Crim. App. 2008).

As require d by statute, the trial court instructed the ju ry that it could “conside r the exis tence of the parole law and g ood conduct time” but could not “conside r the manner in which the
p a r o le la w ma y b e a p p li e d to th is p a

r ti c u la r d e f e n d a n t. ” S e e T e x. Co d e Cr im

. Pr o c
. a r t. 3 7

. 0 7 , § 4 ( b )

. 3

Article 37.07, se ction 4(b) g overne d the jury char g e in t his case be cause the offe nse wa s 3 punishable under the habitual offe nder provision of the penal code b ec ause two prior sequential felony convictions wer e alleg ed for enhanc ement under

Texas Penal Code section 12.42(d)

. 6We have interpre ted these instructions to all o w t h e jury to consider the defe ndant’s elig ibilit y for

parole but not whether or when the defe ndant will a ctually be rele ased on parole

. Branch v. State , 335 S.W .3d 893, 907 (Tex. App.—Austin 2011, pet. ref ’d) (“B ranc h contends that the prosec utor’s
statements wer e imp ro per. We ag ree
. . . . Her e, the prosec utor did not state that Br anch would be eligible for parole in a cer tain n u m b er o f y ear s, but rathe r stated that Br anch would be out of prison in that amount of time.”); see Taylor v. State , 233 S.W .3d 356, 360 (Tex. Crim. App. 2007) ( Wo ma c k , J. , c o n c u

r r in g ) ( “ ‘ [T ]h e ju

r y ma y b a s e it s a s s e s s me n t o f p u

n is h me n t in p a

r t o n c o n s id e r a

ti o n of a sentenc ed defe ndant’s parole elig ibilit y under the formula contained in the instruction; howeve r,

a jury may not ba se its a ssessment of punishment on specula tion a s to w hen, if ever , the defe ndant
may be rele ased on parole afte r becoming elig ible for parole .’”) (quoting Byrd v. State , 192 S.W .3d 69, 77 (Tex. A

pp.—Houston [14t h Dist.] 2006, pet. ref ’d) (F rost, J ., concur

ring )); W aters v. State , 330 S.W .3d 368, 373–74 (Tex. App.—For t W o rt h 2 0 1 0 , pet. ref

’d) (adopting J udg e Womack’s

concur renc e). A prosec utor may proper ly discuss parol e elig ibilit y during jury arg ument as long

as he or she is mere ly explaining and clar ify ing th e j u ry ch ar g e. See Taylor , 233 S.W .3d at 359; Branch , 335 S.W .3d at 907 (noting that “the S t at e m ay at t empt to clar ify the meaning of the jury instructions perta ining to parole law and g ood-conduc t t ime”); see also Hawkins v. State , 135
S.W .3d 72, 84 (Tex. Crim. App. 2004) (“I t was not improper for the prosec utor to acc urate ly restate the law g iven i n the jury char g e nor was it improper for the prosec utor to ask the jury to take the exis tence of that law into ac count when a ssessing punishment.” ).

We conclude that the prosecutor’s arg ument was im proper beca use it went bey ond

mere ly explaining the jury char g e and instead urg ed the jury to consider when Pry or might actua lly

7be release d on parole

. See Hardin v. Stat e , No. 03-14-00236-CR, 2015 WL 1514483, at *3 (Tex.

App.—Austin Mar. 25, 2015, no. pet. h.) (“H ere , the prosec utor implicitl y asked the jury to consider
not only when Har din would become eligible for parole but also when Har din mi gh t a ct u a l l y be released on parole .”) (citing Branch , 335 S.W .3d at 907). The prosec utor arg ued to the jury , “[Y]ou hear d the parole office r here testify [P ry or] was able to parole in six y ear s
. . . .” A prosec utor may
not use evidenc e of a defe ndant’s prior rele ase on parole to arg ue that the defe ndant would actua lly be parole d befor e she had serve d the entire sentenc e assessed by the jury

. See id. ; see also Clark v. State , 643 S.W .2d 723, 72 5 (T ex
. Crim. App. 1982) (“A lthough the State is corr ect in noting that the p ri son rec ords wer e in evidenc e, the rec ords wer e introduced solely for the purpose of establishing appel l an t ’s p rior rec ord. The rec ords wer e not and could not be introduced for the
purpose of showing the jury how the parole laws opera te

. . . .”) Moreove r, althoug h the prosec utor

never unequivoca lly assure d the jury that Pry or would be rele ased befor e serving her entire sentenc e, the prosec u t o r d i d u s e l anguag e that was filled with cer tainty and was not in tune with the trial
court’s instruction that “[i] t cannot acc urate ly be predic ted how the parole law and g ood conduct ti me mi g h t b e a p p li e d to th is d e f

e n d a n t if s e n te n c e d to a te r

m o f im p r is o n me n t. ” S

e e T e x. Co d e Cr im

. P ro c. art. 37.07 § 4(b). For example, the prosecutor st ated, “So it isn’t 15 y ear s, it i s s ev en an d a half, beca use once y ou g et an extra day for ever y day y ou are in, it cuts it in half. So a life sentenc e,

seven and a half y ear s y ou can g et out.” The prosec utor also s t at ed , “Giving somebody a life
sentenc e, they can be back out on the road in a bout se ven and a half y ear s.” On sever al occa sions, the prosec utor stated or implied that the sentenc e assessed by the jury would not be the sentenc e that Pry or ac tually

serve d. Such arg ument is improper.

8Having conclude d that the prosec utor’s comments wer e improper, we now consider

whether those comments const i t u t e reversible err or. Pry or arg ues that we should apply the harm analy sis from Almanza v. State , in which the deg ree of harm require d for reve rsal depends on whether the appellant prese rved err or. See Almanza v. State , 686 S.W .2d 157, 171 (Tex. Crim. App. 1984). Howeve r, Almanza applies when revie wing err ors in the jury charge, n o t err ors reg arding jury arg ument. See Kuhn v. State , 393 S.W .3d 519, 524 (Tex. App.—Austin 2013, pet. ref ’d) (“We

r e v ie w c la im s o f

ju r y c h a r g e e r r o r u n d e r th e tw o - p r o n g e d te s t s e t o u t in A lm a n z a . . . . ” ) ; V it e ll o v
. S ta te , No. 01-03-00669 -C R , 2 0 0 4 WL 1119948, at *5 (Tex. App.—Houston [1st Dist.] May 20, 2004, pet. ref ’d) (mem. op., not desig nated for publication) (“ Almanza has not been extended to claims of jury -ar g ument err or.”)

. Contrary to Pry or’s assertions, the i mproper use of par ole law dur ing jur y
arg ument is non-constitutional err or that “m u st be disreg arde d” if it “does not aff ect substantial rig hts.” Tex. R. App. P. 44.2(b); Perez v. Sta t e , 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]os t comments that fall outside the are as of permissible arg ument will be considere d to be err or of the nonconstitutional

v a r ie ty

. ” )

. T o d e te r

mi n e w h e th e r th e d e f

e n d a n t’ s s u b s ta n ti a l r ig h ts w e r e a f

f e c te d , “ [w ]e b a la

n c e th r e e fac tors: (1) the sever ity of the misconduct (pre j u d icial eff

ect) , (2) cura tive measure s, and (3) the

cer tainty of the punishment assessed absent the misconduct (likeliho o d o f 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-a naly sis fac tors); Perez , 994 S.W .2d at 2 3 7 –38 (apply ing Mosley fac tors).
We conclude that the err or the trial court committed in overr uling Pry or’s objections d id n o t a f f e c t Pr y o r ’ s s u b s ta n ti a l r ig h ts

. U n d e r th e f

ir s t M o s le y f a c to r , th e s e v e r it

y o f th e mi s c o n d

u c t,
9we note that the prosec utor’s discussion of parole was both extended and vitriolic. The prosec utor

insulted the Texas L eg islature and criticized the State’s criminal justice sy stem for say ing one thing but me aning another

when a ddressingbeing “toug h on crime.” The c lear implication wa s that the jury ’s only hope of preve nting a flawe d sy stem from rele asing Pry or in a mere seven- and-a -half y ear s

was to assess the maxi mum sentenc e (as , indeed, the jury did in this case ). This fac tor weig hs in favor of a f inding of harm.
U n d e r th e s e c o n d f

a c to r , c u r a ti v e me a s u

r e s , th e tr ia l c o u

r t o v e r r u le d Pr y o r ’ s o b je c ti o n s and g ave no limit ing instruction to the jury

. The only cura tive measure appea ring in the rec ord was the trial court’s instructions to t he jury on punishment, which acc urate ly quoted the lang uag e on parole law mandated by Texas Code of Criminal Procedur e article 37.07, section 4(b). We g ener ally
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 deter mine that the third fac tor, t h e ce rtainty of the punishment assessed, is dispositi ve in this case
. The State introduced evidenc e that Pry or had previously been convicted at least five times for DWI

. I n addition, there was evidenc e that Pry or’s driving on the occa sion under consideration was s o d an gerous that a conce rned citizen had repor ted her to law enfor ceme nt.
Moreove r, Pry or’s own fathe r testified at t h e p u n ishment phase of trial that Pry or has strug g led with a lcohol for many y ear s and that “[i] t is a lifetime strug g le.” He also testified that he has tried

ever y thing he could to g et her to quit drinking and driving and that it has not worke d. Pry or’s fathe r

a d d it io n a lly testified that he was worrie d that his daug hter would eventua lly kill herse lf while driving drunk and that on a prior occa sion she ran off into a ditch beca use she was driving while intox icated.

10Finall y , t h e S t at e prese nted evidenc e that Pry or was require d to have an interlock device on her

vehicle as a con d i t i o n o f p arole in a previous DWI case and that the condition was still in eff ect wh en she was arr ested for the offense in this case
. I n light of all of t his uncontrove rted evidence , the jury would likely

have c oncluded that Pry or is unable or unwilling to cha

ng e her behavior and assessed the maxi mum sentence , even w ithout the prosecutor’ s comments on parole law.

Ba lancing these three fac tors, we conclude that the trial court’s decision to overr ule
Pr y o r ’ s o b je c ti o n s to th e p r o s e c u to r ’ s c o mm e n ts d id n o t a f f e c t Pr y o r ’ s s u b s ta n ti a l r ig h ts

. We th e r e f

o r e

overr ule Pry or’s sec ond point of err or.

CONCLUSION
H a v in g o v e r r u le d b o th o f Pr

y o r ’ s p o in ts o f e r r o r , w e a f f ir m th e ju d g me n t o f c o n v ic ti o n
.

__________________________________________ Scott K. Field, Just ice
Be fore J ustices Pury ear , Goodwin, and F ield
Affir med Filed: May

1, 2015 Do Not Publish

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