CAUSE NO. PD-1193-15 

IN THE COURT OF CRIMINALAPPEALS 

AUSTIN, TEXAS 

RICHARD VOLLICK 

vs. 

STATE OF TEXAS 

PETITION FOR DISCRETIONARY REVIEW 

TO THE COURT OF CRIMINAL APPEALS OF TEXAS: 

RICHARD VOLLICK, Petitioner herein, respectfully requests this 

Honorable Court to grant this Petition for Discretionary review from Cause 

13-1400261-CR in the Thirteenth Court of Appeals, judgment and 

memorandum opinion issued upon appeal from State of Texas vs. Richard 

Vollick, Cause No. 13-CR-4388-8, in the 117th Judicial District Court, 

Nueces County, Texas, the Honorable Sandra Watts presiding. Petitioner 

would respectfully show this Honorable Court as follows: 

Petitioner requests oral argument. Tex. R. App. P. 68.4(d) 

1 

PD-1193-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 10/16/2015 10:35:24 AM

Accepted 10/16/2015 2:39:00 PM

ABEL ACOSTA

CLERK
IDENTITY OF JUDGE, PARTIES, AND COUNSEL 

Trial Judge 

Hon. Sandra Watts 

117th Judicial District 

Nueces County Courthouse 

Corpus Christi, Texas 78404 

Petitioner 

Richard Vollick 

TDCJ #01926389 

Clements Unit 

9601 Spur 591 

Amarillo, TX 79107-9606 

Petitioner's Trial Counsel 

John Lamerson 

Rausch, Sturm, Israel, Enerson, & Hornic, LLC 

15660 N. Dallas Pkwy, Suite 350 

Dallas, TX 75248 

Petitioner's Appellate and Petition Counsel 

John S. Gilmore, Jr. 

Attorney at Law 

State Bar No. 07958500 

622 S. Tancahua 

Corpus Christi, TX 78401 

Tel: (361) 882-4378 

Christopher A. Dorsey 

Attorney at Law 

State Bar No. 24036493 

606 N. Carancahua, Suite 1001 

Corpus Christi, TX 78401 

(361 ) 882-9991 

2 
Respondent's Trial Counsel 

Ms. Deborah Kay "Deb" Rudder 

SBOT No. 00797355 

Ms. Crystal Mathis 

SBOT No. 24078942 

Assistant District Attorneys 

Nueces County District Attorney's Office 

Nueces County Courthouse 

901 Leopard 

Corpus Christi, TX 78401 

(361) 888-0410 

Respondent's Appellant Counsel 

Mark Skurka 

Ms. Deborah Kay "Deb" Rudder 

SBOT No. 00797355 

Nueces County District Attorney 105th Judicial District 

901 Leopard, Room 206 

Corpus Christi, Texas 78401 

Respondent's Counsel 

Lisa McMinn 

State Prosecuting Attorney 

P.O. Box 13046 

209 W.14th St. 

Austin, TX 78711 

3 
TABLE OF CONTENTS 

Identity of Judge, Parties, Parties and Counsel......... 2-3 

Table of Contents . ............ .............. .............. ............ 4 

Index of Authorities.................................................... 5 

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . 6 

Statement of the Case............................................... 7 

Statement of Procedural History................................ 7 

Grounds for Review............................................... 8 

Argument...................................................... 8 

A. Brief Summary of Facts with Record Citations . . . . 8 

B. The Case Law Requiring Harm is Based on Rule 3.08. . . 1 O 

C. The District Attorney Violated Rule 3.07 ..... . 13 

D. The Thirteenth Court of Appeals' Suggested 

Process May Be Flawed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 

Prayer .................................................................................................. 18 

Certificate of Service ............................................................................ 19 

Certificate of Compliance .................................................................... 20 

Appendix ............................................................................... 20 

4 
INDEX OF AUTHORITIES 

House v. State, 947 S.W. 251, 252 (Tex. Crim. 1997) . . . . . . . .. 11, 12 

Ocon v. State, 284 S.W.3d 880, 886 (Tex. Crim. App. 2009)... 16 

Powers v. State, 165 S.W.3d 357, 359 (Tex. Crime. App. 2005) . . 11, 12 

Smith v. Phillips, 455 US 209, 215 (1982) . . . . . . . . . . . . . . . . . . . 16 

TEX. DISCIPLINARY R. PROF'L CONDUCT 3.07... . . . . . . . . . . 13 

TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08 . . . . . . . . . . .. 12 

TEXAS RULE OF EVIDENCE 404(b)... . . . . . . . . . . . . . . . . . . . . . 14 

5 
STATEMENT REGARDING ORAL ARGUMENT 

The effect of unethical prosecution on a criminal trial is an important 

statewide issue that would benefit from oral argument. There are many 

recent changes to laws based on unethical prosecution, such as the 

Michael Morton Act, because lawmakers and courts are more aware than 

ever of the significant impact that unethical prosecutors have on a criminal 

case. 

Here, the District Attorney for the 105th Judicial District provided 

criminal background information and gave an interview to a major local 

television station news reporter the day before the jury deliberated on 

Petitioner's guilt. The news discussed Petitioner's specific criminal history 

(numerous OWi's), and the District Attorney was quoted about the need to 

send "these'' repeat DWI offenders to prison. The trial court refused 

Petitioner's request to poll the jury, presumed that jurors followed its 

instruction from the beginning of the trial (even though a couple were 

employed with local media outlets), and jurors would not speak to attorneys 

post-verdict before the motion for new trial. Accordingly, there was no 

showing here of any actual harm at this stage, as required by the 

intermediate court. 

6 
Petitioner is requesting briefing on the merits and oral argument to 

address the issue of whether harm should be required or presumed under 

these facts or whether Petitioner should have been allowed opportunity to 

show harm through the questioning of the jurors. 

STATEMENT OF THE CASE 

Mr. Vollick was found guilty and sentenced to seventy years for 

driving while intoxicated (no injuries) enhanced from a Class B 

misdemeanor after a jury trial in the 117th Judicial District Court, Nueces 

County, Texas, the Honorable Sandra Watts presiding. 

This Petition challenges the process Petitioner and trial courts should 

follow when the District Attorney violates ethical prohibitions on speaking to 

the media about his criminal record the night before the jury deliberates on 

guilt. 

STATEMENT OF PROCEDURAL HISTORY 

The Thirteenth Court of Appeals affirmed the judgment with opinion 

(attached in Appendix) on July 23, 2015. The motion for rehearing was filed 

on August 12, 2015, and the Thirteenth Court of Appeals denied it on 

August 17, 2015. 

7 
GROUNDS FOR REVIEW 

1. Whether harm should be required to be shown or presumed when a 

prosecutor uses the local television news media to discuss a defendant's 

specific criminal history the evening before the jury deliberates on guilty. 

2. Whether Petitioner's constitutional right to a fair trial is violated when 

the District Attorney uses the local television news media to discuss a 

defendant's specific criminal history the evening before the jury deliberates 

on guilt. 

3. Whether a trial judge should poll the jury to determine whether they 

heard any news reports regarding the case when a prosecutor uses the 

local television news media to discuss a defendant's specific criminal 

history while the case is being tried. 

ARGUMENT 

A. Brief Summary of Facts with Record Citations 

The night before the jury deliberated on Petitioner's guilt, the local 

ABC news affiliate and most watched news in the Coastal Bend area aired 

a story about Petitioner's trial. See Defendant's Exhibit 1, video of the KIi i8 
TV April 28, 2014 news report showing interview with District Attorney. See 

also RRvS 5-7, Defendant's introduction of the video and motion for mistrial 

on morning of April 29, 2014. 

The broadcast that aired revealed that Petitioner had "been in court 

on DWI charges at least seven times." See Exh. 1, from RRv8. They also 

revealed that he had been up to prison twice for DWI and faced up to life in 

prison as a "labeled" habitual felony offender. They further explained that 

"Vollick's case, however, is one of many similar cases of drivers who have 

been in and out of prison, or have been on probation multiple times, only to 

re-offend again." 

After showing Petitioner and his attorney with the bailiff escorting 

Petitioner, 1 broadcasting his name and previous record, the news 

broadcast then showed portions of its interview with Mark Skurka, the 

Nueces County District Attorney, discussing Mr. Vollick's case in context of 

other habitual felony DWI defendants. See Defense Exhibit 1 , video of 

news broadcast. 

The District Attorney explained that time eventually runs out on 

''these" habitual felony offenders and prison is all that is left. The District 

1 Usually trial courts go to great lengths at the guilt stage of the proceedings to avoid letting the jury know 

that the Defendant is in custody. 

9 
Attorney explained that for those like Mr. Vollick prison time is all that's left 

mostly because of their criminal record. He also discussed that other 

similarly situated defendants did an open plea and received 32 years and 

35 years. He explained, after all, .. it's not their first time at the rodeo." Id. 

Mr. Vollick's trial attorney asked the trial court to poll jurors to ask if 

any saw the broadcast. Id. 40:13-20. He also reminded the trial court that 

there were two members of the media on the jury, and that further made it 

necessary to poll them. Id. 40:13-20. The trial court denied his request 

because 1

'what I saw on video is not the basis for a mistrial." Id. 

In sum, the news broadcast, with the help of the District Attorney, 

discussed Mr. Vollick's seven prior DWI convictions and his habitual felony 

offender status. See DX-1 video. 

B. The Case Law Requiring Harm is Based on Rule 3.0B 

The Thirteenth Court of Appeals rejected Petitioner's argument that 

the District Attorney's statements to the media were prosecutorial 

misconduct and violated Petitioner's fundamental right to a fair trial.2 See 

2 See U.S. CONST. amend. VI (granting the right to an impartial jury trial in criminal 

prosecutions); id. amend. VII (preserving ''the right of trial by jury" in civil cases). See 

TEX. CONST. art. I, § 10 {promulgating that an accused in criminal prosecutions has the 

right to a speedy public trial before an impartial jury); id. art. I,§ 15 (''The right of trial by 

jury shall remain inviolate."); id. art. V, § 10 (reserving the right of a plaintiff or defendant 

to a trial by jury in all district court trials). 

10 
Opinion 5-8 (a true and correct copy is attached in the Appendix as Exhibit 

1 ). It disapproved of Petitioner's use of rules of professional conduct as 

''tactical weapons" and required a showing of actual prejudice. Id. It 

stated: 

The Texas Court of Criminal Appeals has held that the 

rules of professional conduct "should not be used as a 

tactical weapon to ... obtain a reversal of a conviction for 

alleged disciplinary rule violations by opposing counsel" 

unless "the defendant can show the alleged disciplinary 

rule violations by opposing counsel deprived him of a fair 

trial or otherwise affected his substantial rights." House v. 

State, 947 S.W.2d 251, 253 (Tex. Crim. App. 1997); see 

Powers v. State, 165 S. W.3d 357, 359 (Tex. Crim. App. 

2005). "[l]f a defendant cannot show actual prejudice from 

an alleged disciplinary rule violation by the State, then he 

will not be entitled to relief on appeal." House, 947 S.W.2d 

at 253. 

Id. at 7. The intermediate court cited two cases from this Honorable 

Court that require a showing of actual prejudice to entitle Petitioner to 

relief. 

Nevertheless, the cases cited by the Thirteenth Court of Appeals 

are not factually analogous, as they involve two completely different 

rules. In House the Petitioner relied "on an alleged disciplinary rule 

violation by the State as the sole basis for reversal of his conviction." 

House v. State, 947 S.W. 251, 252 (Tex. Crim. 1997). House 

11 
complained that the trial court permitted two assistant district 

attorneys to testify about House's character during the punishment 

phase of the trial, in apparent violation of Texas Disciplinary Rule 

3.08. Id. The main focus of Rule 3.08 is a recognition of the potential 

harm to the offending lawyer's client when the lawyer assumes the 

dual role of advocate-witness. When, as was the case in House, the 

opposing party complains, the disciplinary rule "spoke" in terms of 

actual prejudice and potential harm to the opposing party. In 

summary, House involved a completely different rule of professional 

conduct that refers to the actual prejudice and harm to the opposing 

party when it was violated. 

Powers involved the application of the same disciplinary rule as 

in House, Rule 3.08 of the Texas Disciplinary Rule of Professional 

Conduct, and a very similar complaint of a lawyer assuming a dual 

role. Powers v. State, 165 S.W.3d 357, 359 (Tex. Crime. App. 2005). 

Powers complained that the one of the arresting officers became an 

attorney in the prosecutor's office after his arrest and assumed dual 

roles as witness and prosecutor. This Honorable Court held that the 

former officer did not serve dual roles and did not reach the harm 

12 
question. This had nothing to do with a District Attorney speaking to 

the media about a defendant's criminal background during trial. 

c. The District Attornev . Violated Rule 3.07 

The Texas Disciplinary Rules of Professional Conduct State prohibit 

the State from talking about Petitioner's criminal record in the media. See 

TEX. DISCIPLINARY R. PROF'L CONDUCT 3.07. In fact, publicly 

speaking about a defendant's criminal record is clearly prohibited, as it is 

one of the first items in the list of items specifically prohibited. The Rule 

sets forth: 

(a) In the course of representing a client, a lawyer 

shall not make an extrajudicial statement that a 

reasonable person would expect to be disseminated 

by means of public communication if the lawyer 

knows or reasonably should know that it will have a 

substantial likelihood of materially prejudicing an 

adjudicatory proceeding. A lawyer shall not counsel 

or assist another person to make such a statement. 

(b) A lawyer ordinarily will violate paragraph (a}, 

and the likelihood of a violation increases if the 

adjudication is ongoing or imminent, by making 

an extrajudicial statement of the type referred to in 

that paragraph when the statement refers to: 

(1) the character, credibility, reputation or criminal 

record of a party, suspect in a criminal investigation 

or witness; or the expected testimony of a party or 

witness; ... 

13 
Id. (emphasis added). This rule sets forth that when a prosecutor speaks 

to the media about the criminal record of a defendant it is ordinarily a 

violation. 

The timing of the District Attorney's decision to make extrajudicial 

statements to the media about Petitioner's criminal history and habitual 

felony offender status increases the likelihood of the violation. As the Rule 

sets forth. "the likelihood of a violation increases if the adjudication is 

ongoing or imminent." Id. Here the statements were published the night 

before the jury deliberated on guilt. Here, the trial was ongoing, thus the 

likelihood of violation increased, as the extrajudicial statements in the 

media are more likely to materially prejudice the proceeding. 

This is an especially egregious violation because it was an effective 

way to potentially inform the jury of a criminal record that normally would 

not be allowed to be presented to the jury because it is so prejudicial. See 

generally Texas Rule of Evidence 404(b) (limiting evidence of other 

crimes).3 The District Attorney's statements to the media regarding 

Petitioner's criminal record effectively nullify the exclusionary rules of 

3 It is well recognized that, despite the logical relevancy of such character evidence to prove conforming 

conduct, such proof tends to inject into a trial "a dangerous baggage of prejudice." McCORMICK'S 

HANDBOOK OF THE LAW OF EVIDENCE Section 1 aa, at 445 (Edward w. Cleary et al. eds., 2d ed. 1972). 

14 
evidence to keep his criminal record from the jury during this stage of the 

proceeding. It is well recognized, even by the trial court in this trial, of the 

need to protect defendant's right to a fair trial by excluding evidence of his 

prior felonies and his habitual felony offender status from the panel and the 

jury during the guilt portion of the trial. 

The assistant District Attorney showed her eagerness to get 

Petitioner's criminal history to the jury at this stage. See RR2 at 18. She 

wanted Petitioner to stipulate to their admission at this stage, without any 

reason showing the need to introduce this to a jury at guilt. Id. The 

implication is that by showing her eagerness at the voir dire stage of trial to 

get the conviction in front of the jury, the District Attorney willfully violated 

the rules of professional conduct to circumvent traditional rules of evidence. 

Here, when they could not tell the jury about Petitioner's priors at the 

guilt stage through proper evidentiary means, they used the media to 

manipulate the process. 

D. The Thirteenth Court of Appeals' Suggested Process is Flawed 

The Thirteenth Court of Appeals would require a showing of actual 

harm, such as a showing that jurors actually heard the news story. 

15 
However, on the other hand, the same court upheld the trial court's refusal 

to allow questioning of the jurors. In other words, Petitioner must show 

harm, but when he attempts to do so through the trial court, the Thirteenth 

Court of Appeals supports the trial court's decision to not allow him to do so 

by polling the jury. 

As required in Ocon v. State, Petitioner's trial attorney asked the trial 

court to poll jurors to ask if any saw the broadcast. RRv5 40:13-20. Ocon 

v. State, 284 S. W.3d 880, 886 (Tex. Crim. App. 2009). He also reminded 

the trial court that there were two members of the media on the jury, and 

that further made it necessary to poll them. Id. 40:13-20. The trial court 

denied his request. Id. 

The United States Supreme Court has long held that the remedy for 

allegations of juror partiality is a hearing where the defendant has the 

opportunity to prove actual bias. Smith v. Phillips, 455 US 209, 215 {1982). 

The United States Supreme Court reasoned that due process means, 

among other thing, a trial judge ever watchful to prevent prejudicial 

occurrences and to determine the effect of such occurrences when they 

happen. Id. at 217. Here, Appellant's due process rights were violated by 

16 
the trial court's failure to conduct an inquiry to determine the effects of the 

improper statements to the media by the District Attorney. 

The Thirteenth Court of Appeals reasoned that any questions to the 

jury by the trial court would alert them to the existence and content of the 

report. Opinion at 9. This is simply not accurate, as a trial court can 

reasonably question jurors individually and outside the presence of other 

jurors as to whether they watched the news that night. The inquiry could 

continue to see if the juror heard about any news stories about this case. A 

felony trial court in the State of Texas, as an experienced lawyer, generally 

knows how to ask open-ended questions that would not reveal the contents 

of the news story yet get to the heart of the actual harm issue. If the juror 

responded negatively, the trial court can simply re-admonish the juror to not 

read or watch the news until after the trial. On the other hand, this simple 

process would get to the truth as to whether the District Attorney's unethical 

actions prejudiced or harmed Petitioner. 

Petitioner recognizes here that the actual bias here is unknown, as 

the trial judge refused his request to poll jurors as to whether they saw or 

heard about the news story. After trial, jurors refused to speak to his 

17 
attorney regarding any news stories that may have been heard, as they 

were warned that defense attorneys would try to "mess with" the verdict. 

Nevertheless, had the trial court questioned jurors properly without 

revealing the content of the news story, the true harm would have been 

revealed and an alternate used, if necessary, for the remainder of the trial. 

PRAYER FOR RELIEF 

Petitioner, Richard Vollick, respectfully requests that this Honorable 

Court grant this Petition for Discretionary Review, order briefing on the 

merits, and reverse the judgments of the courts below, alternatively 

ordering the entry of a judgment of acquittal, ordering the dismissal of the 

case, or remanding for further proceedings. 

Respectfully submitted, 

John S. Gilmore, Jr. 

Attorney at Law 

State Bar No. 07958500 

622 S. Tancahua 

Corpus Christi, TX 78401 

Tel: (361) 882-4378 

Christopher A. Dorsey 

State Bar No. 24036493 

606 N. Carancahua St., Ste 1001 

Corpus Christi, TX 784 76 

Tel: (361) 8829991 

Fax: (866) 9261982 

18 
By: Isl John Gilmore 

JOHNS. GILMORE, JR. 

Attorneys for Richard Vollick 

CERTIFICATE OF SERVICE 

This is to certify that on October 16, 2015 a true and correct copy of 

the above and foregoing document was served on the District Attorney's 

Office, Nueces County, 901 LEOPARD STREET, CORPUS CHRISTI, 

TEXAS 78401, via e-filing. 

Isl Christopher Dorsey 

CHRISTOPHER A. DORSEY 

19 
CERTIFICATE OF COMPLIANCE 

Pursuant to Texas Rule of Appellate Procedure 9.4, I certify this Petition 

for Discretionary Review contains 3,440 total words. This is a computergenerated document created in Pages, using 14-point typeface for all text, 

except footnotes which are in 12-point typeface. In making this certificate 

of compliance, I am relying on the word count provided by the software 

"Pages" used to prepare the document. 

Isl Christooher Dorsey WWW i 

CHRISTOPHER A. DORSEY 

APPENDIX (Including Copy of Opinion of the court of appeals) 

20 
NUMBER 13-14-00261-CR 

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI - EDINBURG 

RICHARD H. VOLLICK, 

v. 

THE STATE OF TEXAS, 

On appeal from the 117th District Court 

of Nueces County, Texas. 

MEMORANDUM OPINION 

Before Justices Rodriguez, Garza and Longoria 

Memorandum Opinion by Justice Garza 

Appellant, 

Appellee. 

A jury convicted appellant, Richard H. Vollick, of his third driving while intoxicated 

("DWI") offense, a third-degree felony. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) 

(West, Westlaw through Ch. 46, 2015 R.S.). The jury found that Vollick had been 

previously convicted of two additional felonies and assessed punishment at seventy 

years' imprisonment. See id. § 12.42(d) (West, Westlaw through Ch. 46, 2015 R.S.). By 
.. 

four issues on appeal, Vollick contends that the trial court abused its discretion by 

(1) denying his request for mistrial based on a television news report, (2) not allowing his 

trial counsel to poll the jury under Texas Rule of Evidence 606(b), (3) not allowing his trial 

counsel to question the venire panel on a twenty-five-year minimum sentence, and 

(4) denying his motion for new trial based on allegedly false testimony. We affirm. 

I. BACKGROUND 

On January 16, 2014, Vollick was charged by way of indictment with felony DWI. 

The indictment alleged that Vollick was convicted of DWI in May 2001 and again in 

December 2011. The indictment also alleged that Vollick was previously convicted of two 

other felonies, the first for burglary in December 1988 and the second for felony DWI in 

April 2012. 

Port Aransas police officers arrested Vollick on December 26, 2013 for DWI after 

he ran over two signs exiting the Port Aransas ferry in Aransas Pass. Two eyewitnesses 

testified that they saw Vollick strike one sign and then travel along the median until he hit 

another sign. One of the eyewitnesses, a ferry deck hand, testified that Vollick's facial 

expression and eyes were droopy, his speech was slurred, and his movements were 

sluggish. In her opinion, based on these observations, Vollick was under the influence of 

alcohol. Another eyewitness testified that Vollick was smoking a cigarette in the middle 

of a gasoline spill and even attempted to throw the cigarette on the ground, and that, 

based on this behavior, he believed Vollick was under the influence of alcohol. 

During a pre-trial hearing, Vollick stipulated that the two prior DWI convictions and 

the two prior felony convictions were true. Defense counsel requested that the venire 

panel be advised that the minimum punishment was twenty-five years without instructing 

2 
them on Vollick's habitual felony offender status. See id. However, the trial court denied 

the request and instead instructed the panel that the charged offense is a third-degree 

felony which carries a range of punishment of two to ten years' confinement. See id. 

§ 12.34(a) (West, Westlaw through Ch. 46, 2015 R.S.). The court also instructed the jury 

that if it found one prior felony conviction, then the range of punishment is two to twenty 

years, and if it found two prior felony convictions, then the range of punishment is twentyfive years to life. See id. § 12.42. 

Joseph Rivas, a Port Aransas police officer, testified that he found a twelve-ounce 

beer bottle in the back of Vollick's car that was cold and still contained some liquid. 

According to Rivas, he then asked Vollick if he had consumed any alcohol and Vollick 

admitted to drinking four or five twelve-ounce beers. Rivas testified that Vollick's eyes 

were bloodshot, his speech was slurred, he exhibited a disorganized thought process, 

and he had trouble retrieving his driver's license. Vollick was swaying, failed to follow 

directions, and failed to complete the walk-and-turn field sobriety test successfully. Rivas, 

as well as another officer present at the scene, each testified that they believed Vollick 

was intoxicated based on his movements, his appearance, his speech, and the way he 

smelled. 

Rivas also testified that he had specialized training in intoxication detection and in 

standard field sobriety tests, including a certification in the horizontal gaze nystagmus 

("HGN") test. According to the officer, Vollick exhibited all of the indicators of alcohol 

consumption or some other central nervous system depressant. Rivas also testified that 

Vollick's driver's license did not list any restrictions, and that Vollick was not wearing 

glasses or contact lenses at the time of the accident. During opening statements, defense 

3 
counsel mentioned that Vollick suffered from many medical issues, including glaucoma, 

and indicated that these conditions were relevant to his inability to pass the field sobriety 

test. However, during cross-examination, Rivas testified that appellant never mentioned 

that he suffered from glaucoma. Rivas further testified that neither his training manual 

nor the National Highway Traffic Safety Administration manual listed glaucoma as one of 

the conditions that could potentially cause HGN. The other officer on the scene, Brett 

Boyer, testified that he was certified in standardized field sobriety testing, and that he was 

also not aware that glaucoma could affect the HGN test. 

The night before the final day of trial, a local television station, KIii, ran a story on 

Vollick's case in which the reporter referred to the fact that Vollick had previously "been 

in court on DWI charges at least seven times." The news broadcast also showed portions 

of an interview with the Nueces County District Attorney, during which the District Attorney 

discussed other habitual-offender felony DWI defendants. The morning following the 

broadcast, defense counsel introduced the video and requested a mistrial for 

prosecutorial misconduct. The trial court tabled the issue to revisit later in the trial, stating 

that the "only reason that would be important is if indeed the jury heard those comments, 

and I've instructed the jury not to listen to those comments . . . . It doesn't impact my 

case, unless those jurors have been impacted." Later, after both parties rested, the trial 

court reviewed a recording of the news report. At this point, defense counsel noted that 

the jury pool contained a KIii employee and an editor of the Corpus Christi Caller Times, 

and he requested permission to ask these two jurors if they had seen the news report. 

Counsel later requested permission to "ask the jurors if they have seen the footage." The 

trial denied the request and the motion for mistrial. 

4 
During closing argument. defense counsel focused on the fact that Vollick was not 

wearing glasses at the time of the accident, and that he had mental and physical problems 

that might have interfered with the field sobriety tests. The State noted that the defense 

did not call any experts to the stand to connect Vollick's mental and physical issues to his 

intoxication. The jury convicted Vollick offelony DWI and sentenced him to seventy years' 

imprisonment in Texas Department of Criminal Justice. 

Vollick then filed a motion for new trial and arrest of judgment. complaining that the 

State had misled the jury about the non-alcohol-related causes of HGN and had led the 

jury to believe that Vollick did not have any problems with his vision. At a hearing on the 

motion for new trial, Vollick did not call any witnesses to explain his eye conditlons or the 

side effects of his medication. The motion for new trial also alleged a violation of Vollick's 

right to a fair trial in light of the Kill news report; however, no witnesses were called 

regarding this issue at the new trial hearing. At that hearing, Vollick called only his trial 

counsel to the stand to testify that he was unable to find anyone to testify at trial whether 

glaucoma affected the HGN test. The trial court denied the motion for new trial, and this 

appeal followed. 

II. DISCUSSION 

A. Motion for Mistrial 

By his first issue, Vollick contends that the trial court abused its discretion by 

denying his motion for mistrial based on the KIii television news report. In his argument 

regarding this issue, Vollick emphasizes that the District Attorney violated the Texas 

Disciplinary Rules of Professional Conduct by giving a statement to the media regarding 

5 
Vollick's case during trial.1 He argues that the District Attorney's comments regarding his 

criminal record violated his Sixth Amendment right to a fair trial and amounted to 

prosecutorial misconduct, warranting a mistrial. The State counters by noting that the 

District Attorney did not explicitly refer to Vollick by name in the news report, and it argues 

that Vollick did not show that he suffered any harm as a result of the report. 

A mistrial is an appropriate remedy only in "extreme circumstances" for a narrow 

class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880,884 (Tex. 

Crim. App. 2009). A mistrial halts trial proceedings when error is so prejudicial that 

expenditure of further time and expense would be wasteful and futile. Id. Whether an 

error requires a mistrial must be determined by the particular facts of the case. Id. A trial 

court's denial of a mistrial is reviewed for an abuse of discretion. Id. We view the 

evidence in the light most favorable to the trial court's ruling, considering only those 

arguments before the court at the time of the ruling. Id. The ruling must be upheld if it 

was within the zone of reasonable disagreement. Id. 

Even assuming, but not deciding, that the District Attorney's comments constituted 

a violation of ethical rules, we find no abuse of discretion by the trial court in denying 

1 In particular, rule 3.07 of the Texas Disciplinary Rules of Professional Conduct states as follows: 

(a) In the course of representing a client, a lawyer shall not make an extrajudicial 

statement that a reasonable person would expect to be disseminated by means of 

public communication if the lawyer knows or reasonably should know that it will have 

a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer 

shall not counsel or assist another person to make such a statement. 

(b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases 

if the adjudication is ongoing or imminent, by making an extrajudicial statement of the 

type referred to in that paragraph when the statement refers to: 

(1) the character. credibility, reputation or criminal record of a party . ... 

TEX. DISCIPLINARY R. PROF1L CONDUCT 3.07. reprinted in TEX. Gov'T CODE ANN. tit. 2, subtit. G, app. A (West. 

Westlaw through Ch. 46, 2015 R.S.). 

6 
Vollick's motion for mistrial. The Texas Court of Criminal Appeals has held that the rules 

of professional conduct "should not be used as a tactical weapon to ... obtain a reversal 

of a conviction for alleged disciplinary rule violations by opposing counsel" unless "the 

defendant can show the alleged disciplinary rule violations by opposing counsel deprived 

him of a fair trial or otherwise affected his substantial rights." House v. State, 947 S.W.2d 

251 , 253 (Tex. Crim. App. 1997); see Powers v. State, 165 S.W.3d 357,359 (Tex. Crim. 

App. 2005). "{l]f a defendant cannot show actual prejudice from an alleged disciplinary 

rule violation by the State, then he will not be entitled to relief on appeal." House, 947 

S.W.2d at 253. 

Here, prior to trial, the trial court instructed the jury as follows: 

The media is an outside influence and we are trying to shelter you, isolate 

you from all those influences so that you can render your verdict based upon 

what happens in this courtroom. So, please do not read anything in the 

print media, Caller.com, or actually the newspaper. And please do not stay 

in the same room if a radio and/or the T.V. is discussing this case; use the 

remote, close it, etc. Remember, you will very rarely see a member of the 

media in the courtroom listening to the facts as you are hearing them. No 

one has heard these facts. So the bottom line is everything they are stating 

is all hearsay, based upon, you know, whatever they are drawing upon. But 

the key thing is, is your verdict has to be based here and not be influenced 

by the media, so that is the media instruction. 

And, the guilt-innocence jury charge contained the following instruction: 

With respect to the evidence admitted in this case concerning the 

defendant's having been previously convicted two times of being intoxicated 

while operating a motor vehicle in a public place, you are instructed that 

such evidence cannot be considered by you in any manner as proving or 

tending to prove that the defendant was intoxicated while driving or 

operating a motor vehicle in a public place on or about DECEMBER 26, 

2013. 

The guilt-innocence charge also advised the jury that Vollick "has stipulated to having 

been previously convicted two or more times of an offense relating to the operating of a 

motor vehicle while intoxicated." 

7 
'We generally presume the jury follows the trial court's instructions in the manner 

presented." Co/bum v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). Here, there 

is no evidence in the record establishing that any juror disobeyed the trial court's explicit 

instructions regarding media coverage or its limiting instruction regarding the two 

stipulated prior DWI offenses.2 Therefore, we cannot say that Vollick suffered any "actual 

prejudice" as a result of the District Attorney's comments in the Kill news report, see 

House, 947 S.W.2d at 253, nor can we say that the trial court abused its discretion in 

denying a mistrial. Vollick's first issue is overruled. 

B. Rule 606(b) Questions 

By his second issue, Vollick contends that the trial court erred in disallowing his 

trial counsel from asking jurors as to whether they had seen the televised news report. 

Under Texas Rule of Evidence 606, a juror may not testify as a witness before the 

other jurors at trial. TEX. R. Ev10. 606(a). During an inquiry as to the validity of a verdict 

or indictment, however, a juror may testify "about whether an outside influence was 

improperly brought to bear on any juror." TEX. R. Ev10. 606(b)(2)(A). In Mays v. State. 

the Texas Court of Criminal Appeals applied an abuse-of-discretion standard in reviewing 

the trial court's denial of defense counsel's request to poll the jury as to "whether they 

had been exposed to or affected by media coverage of the case." 318 S.W.3d 368, 377 

(Tex. Crim. App. 2010). That case involved an editorial article that had appeared in a 

local newspaper the day before trial allegedly suggesting "that law enforcement was 

watching what happened in this trial." Id. The Court held that the trial court did not abuse 

2 We note that Vollick did not call any witnesses to testify regarding this issue at the motion for new 

trial hearing. 

8 
its discretion in refusing counsel's request, noting that "[t)he trial court repeatedly 

instructed the jury panel, the individual jurors selected, and the empaneled jury not to 

read, watch, or listen to any media stories about the case." Id. at 378. The Court further 

noted that, had the trial court granted counsel's request, it would have risked exposing 

the jury to the existence and contents of the editorial for the first time. Id. at 377-78. The 

Court reached an identical conclusion in Powell v. State, which involved a newspaper 

article that allegedly inaccurately recounted testimony from a hearing on the admissibility 

of DNA evidence. 898 S.W.2d 821, 828 (Tex. Crim. App. 1994). There, the Court held: 

Id. 

In the instant case, the trial court was faced with a decision: it could either 

deny appellant's request for a jury poll concerning the contents of 

the ... article, or it could grant appellant's request, poll the jury, and risk 

exposing the jury to the existence of the article and its contents for the first 

time. We believe the trial court decided correctly. By refusing to poll the 

jury about the . . . article, and by reiterating its admonishments, the trial 

court did its best. under the circumstances, to preserve the integrity of the 

jury panel. 

We believe that Mays and Powell are analogous to the instant case. As in those 

cases, the trial court here advised the jurors that they were not to listen to or watch media 

reports about the case. By refusing to poll the jury about the KIii news report, the trial 

court avoided the risk of exposing the jury to the existence and content of the report for 

the first time, thereby helping to "preserve the integrity" of the panel. See id. Following 

Mays and Powell, we conclude that the trial court did not abuse its discretion in denying 

defense counsel's request to poll the juryt and we overrule Vollick's second issue. 

C. Voir Dire Questions Regarding Punishment Range 

By his third issue, Vollick contends that the trial court abused its discretion by 

refusing to allow his counsel to question the venire panel regarding the minimum 

9 
punishment applicable to his offense. Vollick contends that, due to his stipulations 

regarding his prior offenses, the minimum punishment applicable in his case was set by 

the habitual-felony-offender statute at twenty-five years' imprisonment, rather than two 

years as provided by statute generally for a third-degree felony. See TEX. PENAL CooE 

ANN. §§ 12.34(a), 12.42(d). 

Both the State and defense are entitled to jurors who can consider 

the entire range of punishment for the particular statutory offense-Le., from 

the maximum to the minimum and all points in between. Jurors must be 

able to consider both a situation in which the minimum penalty would be 

appropriate and . . . a situation in which the maximum penalty would be 

appropriate. Therefore, both sides may question the panel on the range of 

punishment and may commit jurors to consider the entire range of 

punishment for the statutory offense. A question committing a juror to 

consider the minimum punishment is both proper and permissible. 

Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010) (footnotes and internal 

quotations omitted). 

We find no error in the record related to Vollick's third issue. The trial court denied 

defense counsel's request to instruct the jury that the minimum punishment upon 

conviction was twenty-five years, but Vollick directs us to no point in the record where the 

trial court disallowed him from asking the individual veniremembers whether they would 

be willing to consider twenty-five years as an appropriate punishment in the case. In fact, 

the prosecutor questioned the panel as to whether they believed twenty-five years was 

too harsh a punishment for the offense at issue. Finally, as the State notes, Vollick could 

have withdrawn his stipulation prior to sentencing and the trial court could have 

conceivably set aside the stipulation. See Brito v. State, 154 S.W.3d 127, 129 (Tex. Crim. 

App. 2005) ("A trial court has discretion to set aside a stipulation."). Therefore, it would 

have been improper for the trial court to have instructed the venire panel that, because 

10 
Vollick stipulated to his prior offenses, the minimum punishment would be the prison term 

set in the habitual-felony-offender statute. We overrule Vollick's third issue. 

D. Motion for New Trial 

Vollick argues by his fourth issue that the trial court abused its discretion by 

denying his motion for new trial. He contends that he was entitled to a new trial because 

"the State argued and allowed, without correction, [m]isleading evidence [r]egarding 

[Vollick's) [v]ision, the (c)auses of HGN, and [h]is [m)edical (c)ondition." We review a 

denial of a motion for new trial for abuse of discretion. Colyer v. State, 428 S.W.3d 117, 

122 (Tex. Crim. App. 2014). 

"The Due Process Cause of the Fourteenth Amendment can be violated when the 

State uses false testimony to obtain a conviction, regardless of whether it does so 

knowingly or unknowingly." Ex parle Chavez, 371 S.W.3d 200, 207-08 (Tex. Crim. App. 

2012) (citing Ex parle Robbins, 360 S.W.3d 446, 459 (Tex. Crim. App. 2011 )); see U.S. 

CONST. amend. XIV. Testimony need not be perjured to constitute a due process 

violation; rather, "it is sufficient that the testimony was 'false."' Id. "The question is 

whether the testimony, taken as a whole, gives the jury a false impression." Id. 

Vollick argues that the State provided "misleading evidence regarding his vision, 

knowing he truly had vision issues." He first notes that, even though there were medical 

records in evidence establishing that he had been prescribed medication for glaucoma, 

the State nevertheless elicited testimony from Rivas that Vollick's driver's license had no 

listed restrictions such as required eyeglasses. Second, Vollick argues that the State 

elicited testimony from Rivas and Boyer that glaucoma does not affect the HGN test, and 

he asks us to take judicial notice that glaucoma may, in fact, bring about HGN. See 

11 
Schultz v. State, 664 A.2d 60, 77 (Md. Ct. Spec. App. 1995) (listing glaucoma among 38 

"possible cause[s] of nystagmus"); State v. Witte, 836 P.2d 1110, 1120 (Kan. 1992) 

(noting that "conditions such as ... glaucoma ... may result in gaze nystagmus"). 

First, with respect to the driver's license restrictions, Rivas never gave any false or 

misleading testimony. It is undisputed that Vollick's driver's license contains, as Rivas 

stated, no restrictions. Vollick argues that this testimony was "misleading" in light of 

medical records that showed he was diagnosed with glaucoma, but we disagree. At most. 

this was a conflict in the evidence which the jury, as finder of fact. was entitled to resolve. 

See, e.g., Chambers v. State, 805 S.W.2d 459,461 (Tex. Crim. App. 1991). 

Second, with respect to the testimony regarding the effect of glaucoma on the HGN 

test, the State points out that, even if we were to take judicial notice that glaucoma may 

cause nystagmus, that does not mean that glaucoma would necessarily cause a person 

to fail the HGN test. The State directs us to People v. McKown, in which the Illinois 

Supreme Court observed: 

Nystagmus is "an involuntary, rapid, rhythmic movement of the eyeball, 

which may be horizontal, vertical, rotatory, or mixed, Le., of two varieties." 

The medical dictionary lists 45 types of nystagmus. For example, ataxic 

nystagmus is unilateral and occurs in individuals with multiple sclerosis. 

Congenital nystagmus "may be caused by or associated with optic atrophy, 

coloboma, albinism, bilateral macular lesions, congenital cataract, severe 

astigmatism, and glaucoma." Gaze nystagmus, which is at issue in the 

present case, is "made apparent by looking to the right or to the left," as 

opposed to fixation nystagmus, ''which appears only on gazing fixedly at an 

object," or latent nystagmus, "which occurs only when one eye is covered." 

924 N.E.2d 941, 945 (Ill. 2010) (citations to medical dictionaries omitted); see IDA G. Dox, 

ET AL., ATIORNEY's ILLUSTRATED MEDICAL DICTIONARY N48 (West 1997) (defining 

"nystagmus" as "[i]nvoluntary movements of the eyeballs in either a rotary, horizontal, or 

vertical direction; most commonly it is a rhythmic jerking with a fast and slow component, 

12 
and is described by the direction of the quick component"). There are multiple forms of 

nystagmus, and while there may be some support for the proposition that glaucoma may 

bring about nystagmus, we are aware of no authority indicating that glaucoma may cause 

the particular type of nystagmus that is a sign of intoxication in the HGN test.3 

Accordingly, we do not believe that the officers' testimony, in which they stated that they 

were not aware that glaucoma could cause HGN, gave the jury a "false impression" so as 

to violate Vollick's right to due process under the Fourteenth Amendment. See Ex parte 

Chavez, 371 S.W.3d at 208. 

Even if we were to determine that the officers' testimony regarding the potential of 

glaucoma to cause HGN gave a false impression to the jury, Vollick has not demonstrated 

that he suffered harm from the admission of the testimony. To constitute a due-process 

violation, the record must show that the allegedly false testimony was material-that is, 

the record must show '"a reasonable likelihood' that the false testimony affected the 

judgment of the jury." Id. (citing Ex parte Ghahremani, 332 S.W.3d at 470, 478 (Tex. 

Crim. App. 2011)). Here, the record contains overwhelming evidence that Vollick 

operated a vehicle while intoxicated on December 26, 2013. Eyewitness testimony 

established that Vollick hit two signs with his vehicle that night, that his facial expression 

and eyes were "droopy," that his speech was slurred, and that he was smoking a cigarette 

in the presence of spilled gasoline. Rivas testified that there was an open beer bottle in 

J Vollick cites Mata v. State, in which a dissenting justice of the San Antonio Court of Appeals noted 

that "[t]here is evidence that . . . glaucoma may bring about HGN." 13 S.W .. 3d 1, 15 (Tex. App.-San 

Antonio 1999) (Cadena, Retired C.J., dissenting), rev'd on other grounds, 46 S.W.3d 902, 917 (Tex. Crim. 

App. 2001). The only authority cited in Mata for this proposition. however, is Emerson v. State, in which 

the Texas Court of Criminal Appeals took judicial notice "of the reliability of both the theory underlying the 

HGN test and its technique." 880 S.W.2d 759, 769 (Tex. Crim. App. 1994) (en bane). The Emerson Court 

did not mention glaucoma or its potential effect on the HGN test. Therefore. we do not consider Mata to be 

authority indicating that glaucoma may cause a person to fail the HGN test. 

13 
Vollick's car, that Vollick admitted to having several drinks, and that he failed the walkand-turn test. Both officers testified that, based on Vollick's behavior and odor, they 

believed he was under the influence of alcohol. Vollick's glaucoma may or may not have 

contributed to his failing the HGN test, but it does not explain any of these other 

incriminating facts. Accordingly, even without the allegedly false testimony, the jury was 

overwhelmingly likely to have found Vollick guilty of the charged offense. There is no 

"reasonable likelihood" that the testimony affected the judgment of the jury. See id. 

We conclude that the trial court did not abuse its discretion in denying the motion 

for new trial. Vollick's fourth issue is overruled. 

Ill. CONCLUSION 

We affirm the trial court's judgment. 

Do Not Publish. 

TEX. R. APP. P. 47.2(b). 

Delivered and filed the 

23rd day of July, 2015. 

14 

DORI CONTRERAS GARZA, 

Justice