### CAUSE NO. PD-1193-15 

### IN THE COURT OF CRIMINALAPPEALS AUSTIN, TEXAS RICHARD VOLLICK 

### vs. STATE OFTEXAS

PETITION FOR DISCRETIONARY REVIEW

TOTHE COURT OF CRIMINALAPPEALS OFTEXAS: 

### 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 ofTexas 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 showthis 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 OFJUDGE, PARTIES, AND COUNSEL 

### Trial Judge Hon. SandraWatts 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'sTrial Counsel John Lamerson Rausch, Sturm, Israel, Enerson, 

### &Hornic, LLC 15660 N. Dallas Pkwy, Suite 350 Dallas, TX75248 

### 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 ChristopherA. Dorsey Attorney at Law State Bar No. 24036493 606 N. Carancahua, Suite 1001 Corpus Christi, TX 78401 (361 ) 882-9991

2

### Respondent'sTrial Counsel Ms. Deborah Kay "Deb" Rudder SBOT No. 00797355 Ms. Crystal Mathis SBOT No. 24078942 Assistant DistrictAttorneys Nueces County DistrictAttorney's Office Nueces County Courthouse 901 Leopard Corpus Christi, TX 78401 (361) 888-0410 

### Respondent'sAppellant Counsel Mark Skurka Ms. Deborah Kay "Deb" Rudder SBOT No. 00797355 Nueces County DistrictAttorney 105thJudicial District 901 Leopard, Room 206 Corpus Christi, Texas 78401 

### Respondent's Counsel Lisa McMinn State ProsecutingAttorney P.O. Box 13046 209 W.14th St. Austin, TX 78711

3

### TABLEOF CONTENTS 

### Identity of Judge, Parties, Parties and Counsel......... 2-3 Table of Contents

........................... .......................... 4 IndexofAuthorities.................................................... 5 Statement Regarding Oral Argument

. . . . . . . . . . . . . . . . . . . 6 Statement ofthe 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 ofAppeals' Suggested Process May Be Flawed

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Prayer

.................................................................................................. 18 Certificate of Service

............................................................................ 19 Certificate of Compliance

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

............................................................................... 20

4

### INDEX OFAUTHORITIES 

### 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 ORALARGUMENT 

### 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 ofthe 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 speakto 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 orwhether Petitioner should have been allowed opportunity to show harmthrough the questioning ofthejurors. STATEMENT OFTHE 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 DistrictAttorney violates ethical prohibitions on speaking to the media about his criminal record the night before thejury deliberates on guilt. STATEMENTOF 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. Whetherharm shouldbe required to be shown orpresumed when a prosecutor uses the local television news media to discuss a defendant's specificcriminalhistorythe eveningbefore thejurydeliberates on guilty.

2. Whether Petitioner's constitutional right to a fair trialis violated when the District Attorney uses the local television news media to discuss a defendant's specific criminal history the evening before thejurydeliberates
onguilt.

3. Whether a trialjudge 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 historywhile the case is being tried. ARGUMENT 

## A. Brief

## SummaryofFacts with 

## RecordCitations 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 ofthe KIi

### i8

### TVApril 28, 2014 news report showing interview with DistrictAttorney. See also RRvS 5-7, Defendant's introduction ofthe video and motion for mistrial
on morning ofApril 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 multipletimes, onlyto 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 DistrictAttorney, 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 Usuallytrial courts goto great lengths atthe guilt stage ofthe proceedings to avoid lettingthejury 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 nottheirfirst time atthe 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 Isawon video is notthe basisfor 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 LawRequiring

## Harm is 

## Basedon 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 impartialjurytrial in criminal prosecutions); id. amend. VII (preserving ''the right oftrial by jury" in civil cases). See TEX. CONST. art. I, § 10{promulgating that an accused in criminal prosecutions hasthe righttoa speedy publictrial before an impartial jury); id. art. I,§ 15 (''The right oftrial by jury shall remain inviolate."); id. art. V, § 10 (reserving the right of a plaintiff or defendant to atrial byjury 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 ofa 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 entitledto relief on appeal." House, 

### 947 S.W.2d at 253. Id. 

### at 7. The intermediate court cited two cases from this Honorable Courtthat require a showing of actual prejudice to entitle Petitionerto relief. Nevertheless, the cases cited by the Thirteenth Court ofAppeals
are not factually analogous, as they involve two completely different rules. In House 

### the Petitioner relied "on an alleged disciplinary rule violation bythe 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 ofthe 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 partywhen 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 DistrictAttornev 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 expectto 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 thestatement 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 ofthe 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 likelyto 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 iswell recognized that, despitethe logical relevancy ofsuch character evidence to prove conforming conduct, such prooftendsto injectinto a trial "adangerous baggage ofprejudice." McCORMICK'S HANDBOOK OFTHE LAW OF EVIDENCE Section 1

### aa, at445 (Edward

## w. Cleary etal. 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 duringthe guilt portion ofthe 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 conductto circumventtraditional 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 Courtof Appeals'SuggestedProcess 

## 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 ofAppeals 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 opportunityto 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 statementstothe media bythe DistrictAttorney. 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 ifthejuror heard about any news stories aboutthis case. A felony trial court in the State of Texas, as an experienced lawyer, generally knows howto ask open-ended questions that would not reveal the contents of the news story yet get to the heart ofthe actual harm issue. If the juror responded negatively, the trial court can simply re-admonish the jurorto not read or watch the news until after the trial. On the other hand, this simple process would gettothe truth as to whetherthe DistrictAttorney's unethical actions prejudicedorharmed 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 ofthe 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, orremanding 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 ChristopherA. Dorsey State Bar No. 24036493 606 N. Carancahua St., Ste 1001 Corpus Christi, TX 78476 Tel: (361) 8829991 Fax: (866) 9261982
18

### By: 

## IslJohn 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 OFCOMPLIANCE 

### Pursuantto Texas Rule ofAppellate Procedure 9.4, Icertify 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 preparethe document. 

### I

sl Christooher Dorsey WWW i 

### CHRISTOPHERA. DORSEY

APPENDIX (Including Copy of Opinion ofthecourt 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 DistrictCourt of Nueces County, Texas. 

## MEMORANDUM OPINION Before Justices Rodriguez, Garza and Longoria Memorandum Opinion byJustice Garza Appellant,
Appellee.

A jury convicted appellant, Richard H. Vollick, of his third driving while intoxicated ("DWI") offense,a third-degree felony

. SeeTEX. PENAL CODEANN. 

### §§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, Westlawthrough 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 counselto pollthejury underTexas Rule ofEvidence 606(b), (3) notallowing his trial counsel to question the venire panel on a twenty-five-year minimum sentence, and (4) denying his motion for newtrial based on allegedlyfalse 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 December2011. The indictmentalso allegedthatVollickwas previously convicted oftwo 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 overtwo signs exiting the PortAransas ferry in Aransas Pass. Two eyewitnesses testified thatthey sawVollick strike one sign and then travel along the median until he hit another sign. One ofthe 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 heropinion, based on these observations, Vollickwas underthe 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 Vollickwas underthe influence ofalcohol. During a pre-trial hearing, Vollick stipulated thatthe two prior DWI convictions and the two prior felony convictions were true. Defense counsel requested that the venire panel be advised thatthe minimum punishment was twenty-five years without instructing



### 2them on Vollick's habitualfelony offenderstatus. 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 oftwo to ten years' confinement. See 

### id. 

### § 12.34(a) (West, Westlawthrough Ch. 46, 2015 R.S.). The court also instructed thejury that ifitfound one prior felony conviction, then the range of punishment is two to twenty years, and ifitfound two priorfelony convictions, then the range ofpunishment istwentyfive years to life. See id. 

### § 12.42. Joseph Rivas, a Port Aransas police officer, testified that hefound atwelve-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 completethe walk-and-turnfield sobrietytest 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 ofthe indicators of alcohol consumption orsome 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 glassesorcontact lenses atthetime ofthe accident. During openingstatements, defense



### 3counsel mentioned that Vollick suffered from many medical issues, including glaucoma, and indicated that these conditionswere relevantto 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
northe National HighwayTraffic SafetyAdministration manual listed glaucoma as one of the conditions that could potentially cause HGN. The other officer on the scene, Brett Boyer,testified thathewas certified in standardized field sobrietytesting, and that hewas also notaware that glaucoma could affect the HGN test. The night before the final day oftrial, 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 leastseven times." The news broadcastalso showed portions ofan interviewwiththe Nueces County DistrictAttorney, duringwhichthe DistrictAttorney discussed other habitual-offender felony DWI defendants. The morning following the broadcast, defense counsel introduced the video and requested a mistrial for prosecutorial misconduct. Thetrial courttabled the issueto revisit laterin thetrial, stating that the "only reason thatwould be important is if indeed thejury heard those comments, and I've instructed the jury notto listen to those comments
. . . . It doesn't impact my case, unless those jurors have been impacted." Later, afterboth parties rested, the trial court reviewed a recording ofthe news report. Atthis point, defense counsel noted that thejury pool contained a KIii employee and an editorofthe Corpus Christi Caller Times, and he requested permission to ask these two jurors ifthey had seen the news report. Counsel later requested permission to "askthejurors ifthey have seen thefootage." The trial denied the request and the motion for mistrial.


### 4During closing argument. defense counsel focused on the factthatVollickwas not wearing glasses atthe time ofthe accident, andthathe had mental and physical problems that might have interfered with the field sobriety tests. The State noted that the defense did not call any expertstothe stand to connectVollick's mental and physical issues to his intoxication. ThejuryconvictedVollick offelony DWI and sentenced himto seventyyears' imprisonment in Texas Department ofCriminal Justice. Vollickthen filed amotionfornewtrial and arrest ofjudgment. complainingthatthe State had misled the jury about the non-alcohol-related causes of HGN and had led the juryto believe thatVollick did not have any problems with his vision. At a hearing on the motion for newtrial, Vollick did not call anywitnesses to explain his eye conditlons orthe side effects ofhis medication. The motionfornewtrial also alleged aviolation ofVollick's right to a fair trial in light of the Kill news report; however, no witnesses were called regarding this issue at the newtrial hearing. Atthat hearing, Vollick called only his trial counsel to the stand to testifythat he was unable tofind anyone to testify at trial whether glaucoma affected the HGN test. Thetrial court denied the motion for newtrial, 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 statementto the media regarding



### 5Vollick's case during trial. 1 He arguesthatthe DistrictAttorney'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 DistrictAttorneydid notexplicitly referto Vollick by name in the news report, and it argues thatVollick did notshowthat he suffered any harm as a result ofthe report. A mistrial is an appropriate remedy only in "extreme circumstances" for a narrow class ofhighly 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 bythe particularfacts ofthe case. Id. Atrial 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 ofthe ruling. Id

. The ruling must be upheld if it
was within the zone ofreasonable disagreement. Id. Even assuming,but notdeciding, thatthe DistrictAttorney'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 ofthe Texas Disciplinary Rules of Professional Conductstates 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 publiccommunication ifthe lawyer knows orreasonably should knowthat itwill have asubstantial likelihood ofmateriallyprejudicing an adjudicatory proceeding

. A lawyer shall not counsel or assist another person to make such a statement. (b) A lawyerordinarilywill violate paragraph (a), andthelikelihood ofaviolation increases ifthe adjudication is ongoing or imminent, bymaking an extrajudicial statementofthe type referred to inthat paragraphwhen the statement refers to: (1) the character

. credibility, reputation or criminal record ofa party
. ... TEX. DISCIPLINARY R

.PROF 1LCONDUCT3
.07
.reprintedinTEX

.Gov'TCODEANN. tit. 2, subtit. G, app. A (West. Westlawthrough Ch

. 46, 2015 R

.S

.)

. 

### 6Vollick's motion for mistrial. TheTexas CourtofCriminal Appeals has held that the rules ofprofessional conduct "should not be used as atactical weapon to
...obtain a reversal of a conviction for alleged disciplinary rule violations by opposing counsel" unless "the defendantcan showthe alleged disciplinary rule violations by opposing counsel deprived him ofafairtrial orotherwise 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, priorto trial, the trial court instructed thejury as follows: The media is an outside influence and we are trying to shelter you, isolate you from allthose influencessothatyou can renderyourverdict based upon what happens in this courtroom. So, please do not read anything in the print media, Caller.com, oractuallythe newspaper. And pleasedo notstay in the same room ifa radio and/orthe T.V. is discussing this case; use the remote, close it, etc. Remember, you will very rarely see a member ofthe media in the courtroom listening to the facts as you are hearing them. No one has heard thesefacts. Sothe bottom line is everything they are stating is all hearsay, based upon, you know, whateverthey are drawing upon. But the key thing is, is yourverdict has to be based here and not be influenced by the media, so that is the media instruction. And, theguilt-innocencejury charge contained the following instruction: With respect to the evidence admitted in this case concerning the defendant's having been previouslyconvictedtwotimes ofbeing 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 ofan offense relating to the operating of a motorvehicle while intoxicated." 7'We generally presume the juryfollows 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 anyjurordisobeyed the trial court's explicit instructions regarding media coverage or its limiting instruction regarding the two stipulated priorDWIoffenses.2 Therefore, we cannot saythatVollick 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 askingjurors as to whetherthey had seen the televised news report. UnderTexas Rule ofEvidence 606, ajurormay nottestify as awitness before the otherjurors attrial. TEX. 

### R. Ev10. 606(a). During an inquiry as to the validity ofa 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 CourtofCriminalAppeals applied an abuse-of-discretion standard in reviewing the trial court's denial ofdefense counsel's request to poll the jury as to "whether they had been exposed to oraffected by media coverage ofthe 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 thistrial." Id. The Courtheld thatthe trial court did not abuse

2We note thatVollick did notcall anywitnesses to testify regarding this issue atthe motionfor new trial hearing. 

### 8its 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. at378. The Courtfurther noted that, had the trial court granted counsel's request, it would have risked exposing thejuryto the existence and contents ofthe editorial forthefirst time. Id. at377-78. The Court reached an identical conclusion in Powell v. State, which involved a newspaper article that allegedly inaccurately recounted testimonyfrom a hearing on the admissibility ofDNAevidence. 898 S.W.2d 821, 828 (Tex. Crim. App. 1994). There, the Court held:

Id. In the instant case, the trial courtwas faced with a decision: itcould 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 thejuryto the existence ofthe article and its contents forthe 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 ofthe jury panel.

We believe that Mays and Powellare analogous to the instant case. As in those cases, thetrial court here advised thejurorsthattheywere notto listen to orwatch media reports about the case. By refusing to poll the jury about the KIii news report, the trial court avoided the risk ofexposing the jury to the existence and content ofthe report for the first time, thereby helping to "preserve the integrity" ofthe 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 thejuryt 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 9punishment 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 ofpunishmentforthe particularstatutory 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 considerthe 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'sthird issue. The trial courtdenied defense counsel's request to instruct the jury that the minimum punishment upon conviction was twenty-five years, butVollick directs us to no point inthe record wherethe trial court disallowed him from asking the individual veniremembers whether they would bewilling to considertwenty-fiveyears 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 apunishmentfor the offense at issue. Finally, as the State notes, Vollick could have withdrawn his stipulation prior to sentencing and the trial court could have conceivablyset asidethe stipulation. See Brito v. State, 154S.W.3d 127, 129 (Tex. Crim. App. 2005) ("A trial court has discretion to set aside a stipulation."). Therefore, itwould have been improper forthe trial court to have instructed the venire panel that, because

10Vollick stipulated to his prioroffenses, the minimum punishmentwould be the prisonterm set in the habitual-felony-offender statute. We overrule Vollick's third issue. 

### D. Motion for NewTrial Vollick argues by his fourth issue that the trial court abused its discretion by denying his motion fornewtrial. He contends that hewas entitled to a newtrial 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 ofa motion for newtrial forabuse ofdiscretion. Colyerv. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). "The Due Process Cause ofthe Fourteenth Amendment can be violated when the State uses false testimony to obtain a conviction, regardless of whether it does so knowingly or unknowingly." Exparle Chavez, 371 S.W.3d 200, 207-08 (Tex. Crim.App. 2012) (citing Exparle 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 whetherthe testimony, taken as a whole, gives thejury afalse 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 testimonyfrom Rivas and Boyerthat glaucoma does not affectthe HGN test, and he asks us to take judicial notice that glaucoma may, in fact, bring about HGN. See


### 11Schultz 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 respectto the driver's license restrictions, Rivas nevergave anyfalse 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 recordsthatshowed hewas diagnosed with glaucoma, butwe disagree. Atmost. this was a conflict in the evidencewhich thejury, as finder offact. was entitled to resolve. See, e.g., Chambers v. State, 805 S.W.2d 459,461 (Tex. Crim. App. 1991). Second, with respecttothetestimony regarding the effect ofglaucomaonthe HGN test, the State points outthat, even ifwe were to take judicial notice that glaucoma may cause nystagmus, thatdoes 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., oftwo varieties." The medical dictionary lists 45 types of nystagmus. For example, ataxic nystagmus is unilateral and occurs in individuals with multiple sclerosis. Congenital nystagmus "maybe caused by orassociatedwith opticatrophy, 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 atan object," or latent nystagmus, "which occurs only when one eye is covered." 924 N.E.2d 941, 945 (Ill. 2010) (citations to medicaldictionaries omitted); see IDAG. Dox, ET AL., ATIORNEY's ILLUSTRATED MEDICAL DICTIONARY N48 (West 1997) (defining "nystagmus" as "[i]nvoluntary movements ofthe eyeballs in either

### a rotary, horizontal, or vertical direction; mostcommonly it is a rhythmicjerkingwith a fast and slowcomponent,
12and is described by the direction ofthe quick component"). There are multiple forms of nystagmus, and while there may be some support for the propositionthat glaucoma may bring about nystagmus, we are aware ofno authority indicating thatglaucoma maycause 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 thatthey
were notawarethatglaucoma could cause HGN, gave thejurya "false impression" so as to violate Vollick's right to due process underthe Fourteenth Amendment. See Exparte Chavez, 371 S.W.3d at208. Even ifwe were to determine thatthe officers'testimony regarding the potential of glaucomato cause HGN gave afalse impression to thejury, Vollickhas notdemonstrated that he suffered harm from the admission ofthe testimony. To constitute a due-process violation, the record must showthat the allegedly false testimony was material-that is, the record must show '"a reasonable likelihood' that the false testimony affected the judgment ofthe 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 hittwo signs with his vehicle that night, that his facial expression and eyeswere "droopy,"thathisspeechwas slurred, and thathewassmoking acigarette in the presence ofspilled gasoline. Rivas testified that there was an open beer bottle in

J Vollickcites Mata v. State, in which a dissentingjustice ofthe SanAntonio Court ofAppeals 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'don othergrounds, 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 ofCriminal Appeals tookjudicial notice "ofthe 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 orits potential effect onthe HGNtest. Therefore. wedonotconsider Mata to be authority indicating that glaucoma maycause a person to fail the HGN test. 13Vollick'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 underthe influence ofalcohol. Vollick's glaucoma mayor 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 jurywas overwhelmingly likely to have found Vollick guilty of the charged offense. There is no "reasonable likelihood"that the testimony affected thejudgmentofthejury. See 

### id. We conclude that the trial court did not abuse its discretion in denying the motion for newtrial. Vollick's fourth issue is overruled. Ill. CONCLUSION We affirm thetrial court'sjudgment.

Do Not Publish. TEX. R. APP.

### P. 47.2(b). Delivered and filed the 23rd dayofJuly, 2015.

14 DORI CONTRERAS GARZA, Justice