IN THE COURT OF CRIMINAL APPEALS

JOHN B. ISBELL,

APPELLANT NO. PD-1232-17 and

V. NO. PD-1233-17

THE STATE OF TEXAS, 

APPELLEE

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW OF

THE DECISION OF THE COURT OF APPEALS FOR THE

SECOND COURT OF APPEALS DISTRICT OF TEXAS IN CAUSE

NUMBERS 02-14-00124-CR, AND 02-14-00125-CR AFFIRMING 

THE JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBERS

1290119D AND 1290121D IN CRIMINAL DISTRICT COURT NO. 

4 OF TARRANT COUNTY, TEXAS; THE HONORABLE 

MIKE THOMAS, PRESIDING.

 

BARRY G. JOHNSON

State Bar. No. 10683000 

2821 E. Lancaster

Ft. Worth, Texas 76103

Barrygj@aol.com

817-531-9665

817-534-9888 FAX

Attorney for Appellant 

barrygj@aol.com
2

IDENTITIES OF JUDGE, PARTIES, AND COUNSEL

The case was tried before Honorable Mike Thomas, Judge, Criminal District 

Court No. 4, Tarrant County.

The parties to the case are Appellant, John B. Isbell, and Appellee, 

the State of Texas.

Mr. J. Steven Bush, 714 Main Street, Suite 200, Fort Worth, texas 76102 

represented appellant at trial.

Ms. Paige Simpson and Ms. Brooke Panuthos, Assistant District Attorneys 

of Tarrant County, 400 w. Belknap, Fort worth, Texas 76196, represented the State 

of Texas at trial.

Mr. Barry G. Johnson, 2821 E. Lancaster, Fort Worth, Texas 76103, 

represents appellant on appeal.

Ms. Debra Windsor, Assistant District Attorney of Tarrant County, 

400 W. Belknap, Fort Worth, Texas 76196, represents the State of Texas on appeal. 
3

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES 5

STATEMENT REGARDING ORAL ARGUMENT 5

STATEMENT OF THE CASE 5

STATEMENT OF PROCEDURAL HISTORY 5

THE COURT OF APPEALS OPINION 6

QUESTION FOR REVIEW

Where multiple offenses occurring over two days cases are consolidated and 

where the only evidence directly connecting the appellant to the July 17 offenses is accomplice witness testimony, did the court of appeals err in holding that (1) appellant was not harmed by the consolidation, and (2) appellant 

was not harmed in the July 18 cases by the failure to give an accomplice witness instruction concerning the day one cases ?

REASONS FOR GRANTING REVIEW

In this case of first impression, two similar offenses occurRed on consecutive 

days, and since the appellant did not get the benefit of a required accomplice 

witness instruction on the day one cases, the evidence connecting him with the 

day one offenses was prejudicial to him when the jury considered his intent to 

harm an officer on the day two offenses. The interrelationship of the error in 

consolidating the cases and the error in failing to give an accomplice witness 

instruction on the day one cases should require reversal. 

6

ARGUMENT 6

The court of appeals erred in holding appellant was not harmed by the 

consolidation and failure to give an accomplice witness instruction.
4

CONCLUSION 11

PRAYER 11

CERTIFICATE OF COMPLIANCE 13

CERTIFICATE OF SERVICE 13

COURT OF APPEALS OPINION............................................Appendix
5

INDEX OF AUTHORITIES

CASES PAGE

Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998),..............10

Llamas v. State,12 S.W.3d 469(Tex. Crim. App. 2000).............8

STATEMENT CONCERNING ORAL ARGUMENT

Appellant does not request oral argument on the issue of the grant or denial 

of the petition for review.

STATEMENT OF THE CASE

Appellant was charged by four separate indictments with the felony offenses 

of attempted capital murder (tried on the lesser offense of aggravated assault on a 

public servant (and for using a deadly weapon), evading arrest or detention using a 

vehicle(and for using a deadly weapon), assault on a public servant, and deadly 

conduct. Appellant entered a plea of not guilty to each charge, the court consolidated 

the cases for trial upon motion of the state, over objection of appellant, and trial was 

held before a jury, which found appellant guilty of all charges and found the special 

issue of using a deadly weapon to be true. 

Sentencing was before the Court, which sentenced Appellant to forty-five 

years confinement for assault on a public servant, twenty years for deadly conduct, 

forty-five years for assault on a public servant, and twenty years for evading arrest in 
6

a vehicle.

STATEMENT OF PROCEDURAL HISTORY

On March 16, 2015, the Court of Appeals reversed and remanded the cases. 

On the state’s Petition for Discretionary review, The Court of Criminal Appeals 

reversed the instant cases and remanded them back to the Court of appeals for 

consideration of other grounds of error on November 2, 2016. On August 17, 

2017, the Court of Appeals affirmed the convictions in its Opinion Following 

Remand and Motion for Rehearing. A subsequent motion for rehearing was denied 

on September 14, 2017.
7

THE COURT OF APPEALS OPINION

The Court of appeals held that Appellant was not harmed by the consolidation 

because , if the cases had been tried separately, the evidence of the July 17 events 

would have been admissible as contextual evidence, and if no accomplice witness 

instruction was given in the seperate trial, appellant would be unable to shoW harm 

as to that error if convicted of the July 18 offenses.

The court noted that there was much non-accomplice testimony concerning the 

July 18 offenses.

. QUESTIONS FOR REVIEW

Was the court of appeals correct in holding that Appellant was not harmed 

by consolidation of the cases and was not harmed by the failure to give an 

accomplice witness instruction ?

REASONS FOR GRANTING REVIEW

Appellant contends that this court should give consideration to granting the 

petition because it concerns an important question of state law that should be 

decided by this court, specifically the interaction between the consolidation of 

cases rule, 3.04 (a) Texas Code of Criminal Procedure, and the accomplice witness 

rule, and whether harm caused by errors with respect to both of these matters can 

be cumulatively considered. 
8

ARGUMENT

On July 17, 2012, a high speed police chase occurred, and shots 

were fired from the fleeing J eep. On July 18, 2012, the same Jeep 

was again involved in a police chase, after which appellant was 

arrested after exiting th e vehicle. Appellant was charged with two 

cases from July 17, and two cases from July 18. The only evidence 

linking appellant to the July 17 chase was testimony from

accomplice, Jamie Haney, who testified that both she and Isb ell

were in the Jeep during both chases. Isbell appeals his convictions 

for the July 18 offenses in this appeal.

The right to severance of cases rests upon two legitimate 

concerns: (1) that the jury may convict a "bad man" who deserves 

to be punished—not because he is guilty of the crime charged but 

because of his prior or subsequent misdeeds—and (2) that the jury 

will infer that, because the accused committed ot her crimes, he 

probably committed the crime charged. Llamas v. State, 12 S.W.3d 

469 (Tex. Crim. App. 2000).

The purpose of the accomplice witness instruction is to 

protect an accused from conviction based solely on the testimony 
9

of a person involved in an offense who may have incentive to 

minimize his/her own involvement, and to exaggerate or invent the 

involvement of another person.

In this case the courts have found that Article 304 (a) was 

violated in that the cases should not have been consolidate d for 

trial over appellant’s objection (Second Co urt Opinion, p.9), and 

that the trial court erred in failing to gi ve an accomplice witness 

instruction to the jury. (Opinion, p. 5)) The court found that 

appellant was not harmed by the errors in these cases.

Appellant contends that these errors taken together resulted in 

an unfair trial, and violated the substantial rights of appellant.

With regard to consolidation, the court held that the 

accomplice witness testimony of Jamie Haney concerning the the 

July 17 offenses would have been admissible as “contextual 

evidence” relevant to the July 18 offenses. Opinion, p. 9.

Interestingly, the Court of Appeals assumes a “hypothetically 

incorrect” jury charge in making this determination. The court sets 

out a scenario under which the July 18 cases are tried separately 

from the July 17 cases (as this court confirmed should have 

happened in its opinion on September2, 2016, in PD-0470-15). The 
10

court further assumes that no accomplice witness instruction would 

be given, and that , as a result, appellant would have no reversible 

error because Isbell would be unable to show harm. Opinion, p.9.

Appellant asks this court to assume that under such a scenario

a correct jury charge including an accomplice witness instruction 

concerning the extraneous offenses of July 17 would be given. 

Under such circumstances appellant contends that the hypothetical 

jury would not have been able to consider the July 17 offenses 

because there would have been no corroboration of the Jamie

Haney testimony connecting appellant wi th the July 17 offenses.

Regarding the accomplice witness rule, i n Blake v. State, 971 

S.W.2d 451, 454 (Tex. Crim. App. 1998), the Texas Court of Criminal Appeals 

held, “[This] rule reflects a legislative determination that accomplice testimony 

implicating another person should be viewed with a measure of caution, because 

accomplices often have incentives to lie, such as to avoid punishment or shift 

blame to another person.” In conducting a sufficiency review under the accomplice 

witness corroboration rule, then, a reviewing court must “eliminate the accomplice 

testimony from consideration and then examine the remaining portions of the 

record to see if there is other evidence that tends to connect the accused with the 

commission of the crime.” 
11

Appellant contends that he was harmed by the consolidation because of the 

prejudice to the July 18 cases caused by the evidence of the July 17 cases. On July 

17, accomplice witness Haney testified that as she drove the jeep, appellant fired 

shotgun blasts at police vehicles chasing the Jeep. Reperter’s record, V. _ , P. _

No evidence other that Haney’s testimony connected Appellant to the July 17 

offenses.

With respect to the July 18 offenses, Appellant concedes that there is 

significant evidence of Appellant’s guilt of the offense of Evading Arrest in a 

Vehicle. But appellant asserts that the evidence of his intent to assault an officer 

with his vehicle during the course of the evasion is far from oberwhelmimg, and is, 

in fact, ambiguous.

Appellant’s actions in driving the vehicle were arguably done in an attempt 

to evade arrest, rather than to cause harm to an officer.

Extreme harm and prejudice to appellant was caused by the admission of the 

accomplice testimony about the July 17 events concerning firing a shotgun at 

pursuers of the Jeep. Once the jury heard about the July 17 shotgun blasts, without 

the caution mandated by the limiting instruction of the accomplice witness 

instruction, conviction of the aggravated assault on a public servant was was 

virtually assured, as was the special issue as to using a deadly weapon. A person 

who would fire a shotgun at pursuing officers would be more than willing to run an 
12

officer down with a vehicle, the jury no doubT concluded. If the proper accomplice 

witness instruction had been given, the jury would not have been able to consider 

the July 17 evidence, since there was no corroboration at all of Haney’s testimony.

 CONCLUSION

The court of appeals erred in its holding that Appellant was not 

harmed by the consolidation of the cases and the lack of 

accomplice witness instruction.

PRAYER

Appellant prays that this court reverse and remand both convictions, or in 

the alternative, to reverse and remand the aggravated assault on a police officer 

conviction, and to remand it for a new trial, and for such other relief as he may 

show himself to be entitled. 

Respectfully submitted,

/s/_Barry G. Johnson

Barry G. Johnson 

SB#

106830002821 

2821 E.Lancaster

Fort Worth, Texas 76103 817-

531-9665

817-534-9888 FAX

barrygj@aol.com

Attorney for Appellant
13

CERTIFICATE OF COMPLIANCE

I hereby certify that this document complies with the requirements of 

Tex.R.App.P. 9.4(e) because it has been prepared with conventional typeface no 

smaller than 14 point for text. This document also complies with the word count 

limitations of Rule 9.4(i)(1) because it contains 2,034 words, excluding any parts 

exempted by Rule 9.4(i)(1), as computed by Microsoft Word, the computer 

software used to prepare the document.

/s/Barry G. Johnson

Barry G. Johnson

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing document upon 

Debra Windsor , Attorney for Appellee, by eserve, and upon the State Prosecuting 

Attorney, by eserve, on this the 13th day of December, 2017.

/s/Barry G. Johnson

Barry G. Johnson
14

JOHN B. ISBELL 

THE STATE OF TEXAS 

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH 

NO. 02-14-00124-CR NO. 02-14-00125-CR 

V. 

----------

APPELLANT 

STATE 

FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY TRIAL 

COURT NOS. 1290119D, 1290121D 

----------
15

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16

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Appellant John B. Isbell filed a motion for rehearing regarding the court’s 

opinion and judgment issued May 25, 2017. Although we deny his motion, we 

withdraw the opinion and judgment previously issued and substitute the following in 

their place. See Tex. R. App. P. 49. 
17

1
18

On remand, we are asked to determine if appellant Isbell suffered harm because 

the offenses of aggravated assault and evading arrest or detention, occurring on 

July 18, 2012, were consolidated for trial with two offenses occurring on July 17, 

2012—aggravated assault on a public servant and deadly conduct. We also must 

decide if the State’s jury arguments were improper and, if so, harmful to Isbell. 

Because the consolidated trial did not harm Isbell and because the challenged jury 

arguments were permissible, procedurally defaulted, or harmless, we affirm the trial 

court’s judgments. 
19

2 
20

On July 17, 2012 at approximately 7:40 a.m., Officer Steven Graves with the Azle 

Police Department ran a routine license-plate check on a Jeep stopped at a red 

light and discovered that a warrant was attached to the car for Jonathan Garret, a 

white male born in 1972. In the Jeep, Graves saw a woman in the driver’s seat, 

later identified as Jamie Haney, and a white man in the front passenger seat whom 

Graves believed was about the same age given for Garret. Graves turned on his 

patrol car’s red and blue lights to initiate a traffic stop, but 
21

2
22

relevant facts, we feel it necessary to recount them again to provide context for our 

discussion of the legal issues that have been remanded to this court. See Isbell v. 

State, Nos. 02-14-00124-CR, 02-14-00125-CR, 02-14- 00126-CR, 02-14-00127-

CR, 2015 WL 1407749, at *1–2 (Tex. App.—Fort Worth Mar. 26, 2015) (mem. op., 

not designated for publication), aff’d in part and rev’d in part, Nos. PD-0469-15, PD0470-15, PD-0471-15, PD-0472-15, 2016 WL 6520211, at *1–2 (Tex. Crim. App. 

Nov. 2, 2016) (unpublished op.). 

2 

turned on the siren after the Jeep did not stop. Haney turned on her blinker as if 

she were pulling over, and Graves saw the passenger turn around and aim a 

shotgun at him. Graves swerved to avoid any gunfire, called for backup, and 

continued to follow the Jeep with his lights and siren on. The Jeep reached a speed 

of 85 miles per hour through speed-limit zones that ranged from 40 to 60 miles per 

hour and frequently drove on the shoulder to pass other cars. Graves saw the 

passenger ―leaning outside the passenger’s side window with the shotgun waving it 

around, so pointing it back at [Graves], pointing it all over the place.‖ Graves 

eventually lost sight of the Jeep in traffic. 

Kelly Orr, who had been driving to work that morning, saw the Jeep come up 

behind her and heard a loud booming noise. The car was driving ―[e]rratically, 

aggressive, in and out of traffic,‖ eventually crossing a grassy median into the other 

direction of traffic. Orr later discovered bullet holes in her rear bumper and license 

plate. Azle police received information that a shotgun had been thrown out of a 

vehicle being pursued. They recovered the shotgun from the road along with a 

spent shell and a damaged shell in a different location. A firearm and toolmark 
23

examiner later was able to determine that the spent shell had been fired from the 

found shotgun. 

Around 9:00 p.m. the next evening—July 18, 2012—Haltom City Police Sergeant 

Cody Phillips saw the Jeep, which he identified based on a bulletin from the Azle 

Police Department, parked in a residential area. The Jeep began to drive off and 

accelerated quickly after Phillips attempted to pull the Jeep over. 

3 
24

Phillips and two additional police officers in separate cars chased the Jeep for 
25

3 
26

about 70 miles per hour in 30-mile-per-hour zones, ran into cars on the highway, 

jumped medians, and reached speeds of about 115 or 125 miles per hour. During 

the chase, the driver of the Jeep—Isbell—turned the car’s headlights off. The Jeep 

spun out trying to turn and drove down the wrong side of the road into oncoming 

traffic. It also rammed a Haltom City police patrol car while an officer—Officer 

Robert Parsons—was inside. The Jeep eventually hit a mailbox in front of a house 

and came to a stop. Haney, who was in the front passenger seat, and Isbell got out 

and began running. Both were eventually caught and arrested. Haney admitted that 

on July 17, Isbell had a shotgun in the car and that it ―went off‖ while she was 

pursued by Graves. 

B. PROCEDURAL 

Isbell was charged by indictment for aggravated assault on a public servant with a 

shotgun on July 17, deadly conduct on July 17, evading arrest or detention with a 

vehicle on July 18, and aggravated assault on a public servant with a vehicle on

July 18. The trial court granted the State’s motion to consolidate the four offenses 

for trial over Isbell’s objection. At trial, Haney identified Isbell as her male 

passenger on July 17. A jury found Isbell guilty on all 
27

3
28

four counts. The trial court assessed his punishment at concurrent terms of fortyfive, twenty, twenty, and forty-five years’ confinement, respectively. 

On appeal, we held that the trial court erred by failing to instruct the jury on the 

accomplice-witness rule because no evidence linked Isbell to the July 17 events 

other than Haney’s testimony. Isbell, 2015 WL 1407749, at *3. Because we 

concluded that this error egregiously harmed Isbell and that this harm permeated 

the entire trial, we reversed each of the trial court’s judgments and remanded for a 

new trial. Id. The court of criminal appeals agreed that the absence of the 

requested accomplice-witness instruction egregiously harmed Isbell in connection 

with the July 17 offenses—aggravated assault on a public servant with a shotgun 

and deadly conduct—but disagreed that this same error egregiously harmed him in 

connection with the July 18 offenses—evading arrest or detention with a vehicle 

and aggravated assault on a public servant with a vehicle: 

In his brief in the court of appeals, Isbell claimed that he was egregiously harmed 

because Haney’s testimony was the only evidence the jury could have relied on to 

convict him of the . . . July 17 offenses. He did not claim that he was harmed by the 

omission [of the accomplice-witness instruction] as it related to the July 18 

offenses. . . . Because we conclude the reliable non-accomplice evidence 

overwhelmingly connects Isbell to the July 18 offenses, we hold that he was not 

egregiously harmed by the accomplice-witness instructions’ omission as to those 

offenses [i.e., the July 18 offenses]. 

5 
29

Isbell, 2016 WL 6520211, at *3. Accordingly, the court of criminal appeals affirmed 

our judgments regarding the July 17 offenses, but remanded the July 18 offenses 
30

4 
31

II. CONSOLIDATION 

Isbell first argues that the trial court erred by granting the State’s motion to 

consolidate the four offenses for trial. He asserts he was harmed because facts 

regarding the July 17 offenses were heard by the same jury, eviscerating his 

defense to the July 18 offenses, which ―was that he did not intend to drive toward 

the officer . . . and did not intend to ram [his] vehicle . . . but instead was intending 

to flee.‖ The State agrees that the July 17 offenses should have been tried 

separately from the July 18 offenses, but asserts that Isbell was not harmed by the 

error. See Tex. Penal Code Ann. § 3.04(a) (West 2011). 

Because the trial court erred by denying Isbell his absolute right to separate trials 

upon request, we review the error under the nonconstitutional harm analysis and 

disregard it unless it adversely affected Isbell’s substantial rights. See Tex. R. App. 

44.2(b); Werner v. State, 412 S.W.3d 542, 547 (Tex. Crim. App. 2013). Isbell 

argues that he was harmed because the jury’s consideration of the July 17 events, 

admitted through Haney’s testimony, ―made 
32

4
33

challenges the trial court’s consolidation of the July 18 offenses with the July 17 

offenses for trial over his objection and the propriety of the State’s jury arguments. 

These issues were also raised in his original brief directed to all four convictions. 

6 

it much more likely that the jury would believe that he intended to threaten or harm 

Officer Parsons with the vehicle on July 18.‖ 

In assessing harm, we look to the entire record. See Werner, 412 S.W.3d at 547. 

The court of criminal appeals has explained that harm will most likely result if the 

State tries ―apples‖ offenses with ―oranges‖ offenses—offenses that have no 

overlap of evidence and are similar only in the fact that the defendant committed 

both. Id. at 548–49. But if ―there is a substantial overlap of evidence between the . . 

. charges‖ and if evidence of one offense would be admissible in a separate trial for 

the other offense for reasons other than to show the defendant ―was a bad man 

who had acted badly before,‖ the error in failing to sever ―is most likely to be 

harmless.‖ Id. Indeed, the overlap of evidence that would have been admissible 

had the trials been severed is the most important factor in deciding harm even 

though we are to review the entire record. See id. at 549; Walls v. State, No. 03-12-

00055-CR, 2014 WL 1208017, at *3 (Tex. App.—Austin Mar. 20, 2014, no pet.) 

(mem. op., not designated for publication). 

Here, the evidence of the July 17 offenses would have been admissible at a 

separate trial for the July 18 offenses. Isbell and Haney were in a Jeep on July 17 

that evaded detention and involved the passenger—Isbell—waving a shotgun at 

the pursuing officer. The next day, Isbell was seen driving the same Jeep, with 

Haney as a passenger, and an officer tried to pull the Jeep over based on a police 
34

bulletin regarding the July 17 offenses. Isbell led these officers on a high- speed 

chase, ramming into several cars on the freeway and an occupied police 

7 

car. After Isbell ran into a mailbox, he and Haney unsuccessfully attempted to flee 

on foot. 

As the State points out, these offenses were ―intermixed, or blended with one 

another,‖ and provided context for each other; thus, the July 17 offenses would 

have been admissible at a separate trial of the July 18 offenses. Wyatt v. State, 23 

S.W.3d 18, 25 (Tex. Crim. App. 2000). The fact that Phillips attempted to stop the 

Jeep on July 18 and that Isbell immediately sped away required explanation, 

justifying admission of the July 17 events as necessary to the jury’s understanding 

of the July 18 events and to elements of the resulting offenses. See Tex. R. Evid. 

403, 404(b); Devoe v. State, 354 S.W.3d 457, 469–70 (Tex. Crim. App. 2011); 

Beltran v. State, 517 S.W.3d 243, 248–49 (Tex. App.—San Antonio 2017, no pet.); 

Fruge v. State, Nos. 03-14-00722-CR, 03-14-00723-CR, 03-14-00724-CR, 2015 

WL 7969209, at *5 (Tex. App.—Austin Dec. 3, 2015, pet. ref’d) (mem. op., not 

designated for publication); Parks v. State, 463 S.W.3d 166, 171–72 (Tex. App.—

Houston [14th Dist.] 2015 no pet.). Further, the evidence of the July 17 offenses 

would have rebutted Isbell’s admitted theory that his hitting the police car on July 

18 was an accident. See Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 

2001). 

On rehearing, Isbell argues that he was harmed by the consolidation of the four 

offenses for trial because he did not receive an accomplice-witness instruction 

regarding the July 17 events admitted as extraneous-offense evidence regarding 

the July 18 offenses. In other words, he asserts that had the offenses 

8 

not been consolidated for trial, he would have been entitled to an accomplicewitness instruction in the trial of the July 18 offenses directed to Haney’s testimony 

regarding the contextual, extraneous-offense evidence—her testimony regarding 

the July 17 events. But even if the July 18 offenses had been tried separately, if 

Haney’s testimony regarding the July 17 events had been admitted as contextual 

evidence for the July 18 offenses, and if Isbell had been erroneously denied an 

accomplice-witness instruction directed to Haney’s testimony regarding the July 17 

events, Isbell would be unable to show harm arising from the erroneous 

consolidation affecting his substantial rights. See Tex. R. App. P. 44.2(b). 

As stated by the court of criminal appeals, much non-accomplice evidence 

connected Isbell to the July 18 offenses: 
35

The evidence, including several officers’ testimony and dash-cam video, 

established that Isbell, with Haney beside him, led police on a high-speed chase. 

After ramming the Jeep into a police car while an officer was behind the wheel and 

crashing into a mailbox, Isbell and Haney abandoned the car and fled on foot. After 

a brief chase through a neighborhood, the two were apprehended. The officers 

positively identified Isbell as the Jeep’s driver on July 18. 

Isbell, 2016 WL 6520211, at *3. The court of criminal appeals expressly found that 

this ―credible and reliable‖ evidence was ―quite compelling‖ and ―convincingly 

connect[ed]‖ Isbell to the July 18 offenses. Id. Accordingly, the absence of an 

accomplice-witness instruction directed to Haney’s extraneous, contextual 

evidence would not result in harm affecting Isbell’s substantial rights as to his 

9 

convictions for the July 18 offenses, which were the only offenses remanded to this 

court and were supported by ―compelling‖ non-accomplice evidence. Id.; see 

Werner, 412 S.W.3d at 549–51 (―Overwhelming evidence of guilt is a relevant 

factor in any Rule 44.2(b) harm analysis, and, considering the overwhelming 

evidence that proved the April incident, any evidence of the significantly less 

threatening July incidents would have impacted the jurors’ deliberations only 

marginally, if at all.‖ (footnote omitted)); Torres v. State, No. 01-13-00300-CR, 2014 

WL 4374119, at *3–4 (Tex. App.—Houston [1st Dist.] Sept. 4, 2014, pet. ref’d) 

(mem. op., not designated for publication) (―Because the same evidence would 

have been admissible had the charges been severed and nothing else in the record 

shows that the erroneous consolidation affected appellant’s substantial rights, we 

find that the trial court’s refusal to sever was harmless error.‖); cf. Green v. State, 

495 S.W.3d 563, 570–71 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (holding 

failure to give accomplice-witness instruction not egregiously harmful because 

―strong‖ non-accomplice evidence connected defendant to crime). We overrule this 

issue. 

III. JURY ARGUMENT 

In his next issue, Isbell asserts that the State made three improper closing 

arguments to the jury, which harmed him. To be permissible, the State’s jury 

argument must be (1) a summation of the evidence, (2) a reasonable deduction 

from the evidence, (3) an answer to argument of opposing counsel, or (4) a plea 

10 

for law enforcement. Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010). 

We overrule this issue for the following reasons. 
36

A. ARGUMENT REGARDING PHILLIPS 

Isbell first complains that the State impermissibly shifted the burden of proof to him 

by arguing that his attorney could have questioned Phillips regarding his status as 

a certified peace officer, which was an element of the offense of evading arrest or 

detention. He also asserts that portions of this argument impermissibly attacked 

Isbell’s counsel and, thus, Isbell indirectly. After Isbell’s counsel, during his closing 

jury arguments, questioned Phillips’s status as a certified peace officer, the State 

addressed the contention: 

Just to get one thing out of the way right now, Officer Phillips testified he is a 

certified peace officer. You have a definition in the jury charge, if you need it, in 

case you didn’t know what a peace officer meant. That’s what the definition is. 

Officer Phillips has testified, I am a certified peace officer. That is sufficient for youall to know he’s a licensed police officer lawfully discharging his duties. . . . Officer 

Phillips testified. I [met] that definition. 

He was not crossed on any additional questions. If Defense counsel wanted to 

challenge the idea that Officer Phillips is not a certified peace officer, he could have 

done so. He did not. That is because Officer Phillips is a lawfully licensed peace 

officer. And I ask you not to get hung up on something so ridiculous as that. 

Isbell raised no objection to this argument at trial and does not contend on appeal 

that he did so. Absent an objection to jury argument at trial, nothing is presented for 

review. Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004). Even if 

preserved, these arguments are meritless—the State may rebut defense counsel’s 

argument attacking the State’s evidence without shifting the 

11 

burden of proof or impermissibly attacking the defendant through his counsel. See 

Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000); Coble v. State, 871 

S.W.2d 192, 205 (Tex. Crim. App. 1993). 

B. ARGUMENT REGARDING LAWFULNESS OF TRAFFIC STOP 

Isbell next argues that the State impermissibly argued outside the record and 

misstated the law through the following jury argument, to which Isbell objected and 

which occurred immediately after the State’s ―ridiculous‖ comment: 

When you go through and you look at the law that the Judge gives you . . . you will 

not see anywhere in there anything about an illegal traffic stop [on July 18]. And the 

reason for that is that if this were an illegal traffic stop, we wouldn’t be here on this 

charge. If Officer Gilley - -
37

[Counsel for Isbell]: Objection, Your Honor. I’m going to say that’s outside the 

record. It’s for the jury to decide whether the stop was reasonable - - or illegal 

under the circumstances, alleged in the indictment. 

THE COURT: Overruled. 

[Prosecutor]: If Officer Gilley and Officer Parsons and Officer Michlitsch and Officer 

Phillips were illegally trying to detain [Isbell], we would not be here on those 

charges. 

[Counsel for Isbell]: I’m going to object - -

[Prosecutor]: The Judge is the judge of the law. 

[Counsel for Isbell]: I’m going to object again because that’s a misstatement of the 

law. It’s for them to decide whether the - - the facts have been proved or not. And 

the question is whether it’s been proved and not whether it’s illegal. 

THE COURT: Overruled.

[Counsel for Isbell]: She’s misstating the law applicable to the case. THE COURT: 

Overruled. 

12 

[Prosecutor]: This is not an illegal traffic stop. If it were, we wouldn’t be here. That’s 

what I keep telling you. Because if it were, the Judge would have made that 

decision and we wouldn’t be here. 

Isbell is correct that the argument was a misstatement of the law. The trial court 

could not have determined pretrial the lawfulness of the July 18 traffic stop because 

that fact was an element of evading arrest. See Tex. Penal Code Ann. § 38.04(a); 

Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005). 

But Isbell again is entitled to no relief. First, he failed to preserve the error for our 

review because he did not object after the prosecutor made the same argument for 

the third time nor had he previously asked for a running objection to the argument. 

See Miller v. State, No. 02-13-00194-CR, 2015 WL 1775657, at *2 (Tex. App.—

Fort Worth Apr. 16, 2015, no pet.) (mem. op., not designated for publication) 

(collecting cases and holding that appellant’s failure to object to same argument by 

the State, which was repeated after appellant’s objection overruled, forfeited any 

error in the argument). 

Second, this error, even if preserved, did not affect Isbell’s substantial rights and 

must be disregarded. See Tex. R. App. P. 44.2(b). The State introduced evidence 
38

that Phillips attempted to stop the Jeep based on the Azle Police Department’s 

bulletin regarding the July 17 incident, which was a reasonable justification for the 

attempted stop. See United States v. Hensley, 469 U.S. 221, 232 (1985); Davis v. 

State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). As the court of criminal 

appeals recognized, the State’s case regarding 

13 

the July 18 offenses was strong, preventing a conclusion that this remark by the 

State was harmful to Isbell in light of the entire record. See Denton v. State, 920 

S.W.2d 311, 312–13 (Tex. Crim. App. 1996); Orona v. State, 791 S.W.2d 125, 130 

(Tex. Crim. App. 1990); Guy v. State, 160 S.W.3d 606, 617–18 (Tex. App.— Fort 
39

Worth 2005, pet. ref’d). Indeed, Isbell does not suggest in his brief how prejudice 
40

5 
41

C. ARGUMENT FOR JURY TO “ENFORCE THE LAW” 

Isbell’s final jury-argument contention is directed to comments the State made in 

response to Isbell’s counsel’s argument that the high-speed chase on July 18 was 

overkill based on a traffic violation: 

[The attempted stop on July 18] is what you would expect of your police officers, 

because they are the only ones that keep us safe. They’re the ones who are 

charged with dealing with dangerous criminals, like this guy, who thinks he can run 

from the police and come in here and argue, well, because the police were 

committing some dangerous acts, I should get away. Please reward me because I 

was dangerously driving on the roads, I was colliding with other vehicles, but the 

police should stop at that point, because then it becomes unsafe for everyone if the 

police are driving that way. 

Defense counsel is asking you to disregard the law. I’m asking you to enforce the 

law. And if you believe - -

[Counsel for Isbell]: Your Honor, I’m going to object to the argument that I’m asking 

the jury to disregard the law. The standard on a motion to suppress is whether the 

Defense has proved that the search is illegal. The 
42

5
43

however, Isbell should have at least ―suggest[ed] in light of [the] record, how 

prejudice may or may not have occurred.‖ Ovalle v. State, 13 S.W.3d 774, 787 

(Tex. Crim. App. 2000) (quoting Wayne R. LaFave & Jerold H. Israel, Criminal 

Procedure 1165 (2d ed. 1992)). 

14 

standard at trial is whether the prosecution has proved that the search is legal. 

They’re completely different standards of proof. They’re trying to put the burden on 

me, and I’m going to object to improper argument by the State. 

THE COURT: Your objection is noted. Thank you. [Counsel for Isbell]: I need a 

ruling on the objection. THE COURT: It’s overruled. 

Isbell again asserts the State’s argument that Isbell was asking the jury to 

disregard the law while the State urged enforcement shifted the burden of proof to 

Isbell. An assertion by the State that the defense’s jury argument was an attempt to 

circumvent the applicable law does not shift the burden of proof from the State to 

the defendant. Cf. Castro v. State, No. 11-14-00095-CR, 2017 WL 922505, at *5 

(Tex. App.—Eastland Feb. 28, 2017, no pet.) (mem. op., not designated for 

publication) (holding State’s argument that appellant had not shown a prior ―clean 

criminal record‖ was not impermissible burden shifting but was response to 

appellant’s argument); Tucker v. State, 456 S.W.3d 194, 217– 18 (Tex. App.—San 

Antonio 2014, pet. ref’d) (holding State’s argument that jury would have to find 

―elaborate scheme‖ to coach complainants was not improper burden shifting but 

was response to appellant’s argument they had been coached); Baines v. State, 

401 S.W.3d 104, 108–09 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding 

State’s jury argument that appellant had ―the same subpoena power‖ did not shift 
44

the burden of proof). This was a permissible response to defense counsel’s prior 

argument. 

15 

IV. CONCLUSION 

Because of the evidentiary overlap between the July 17 and the July 18 offenses, 

the trial court’s failure to sever the offenses for trial did not affect Isbell’s substantial 

rights. And the challenged jury arguments were either procedurally defaulted, 

permissible, or harmless. Therefore, we overrule Isbell’s remaining points and 

affirm the trial court’s judgments in the July 18 offenses. See Tex. R. App. P. 

43.2(a). 

/s/ Lee Gabriel 

LEE GABRIEL JUSTICE 

PANEL: LIVINGSTON, C.J.; GABRIEL and KERR, JJ. 

DO NOT PUBLISH Tex. R. App. P. 47.2(b) 

DELIVERED: August 17, 2017 

16 
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Case # PD-1232&1233-17

Case Information

Location Court Of Criminal Appeals

Date Filed 12/13/2017 10:34:12 PM

Case Number PD-1232&1233-17

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Attorney barry johnson

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Petition for Discretionary Review

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Filing Code Petition for Discretionary Review

Filing Description Petition for Discretionary Review

Reference Number 1892060

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Rejection

Reason Time Rejection Comment

The petition for discretionary review does not contain a copy of the court of appeals
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opinion [Rule 68.4(j)]. The court of appeals opinion attached to appellant's petition

has blank pages every other page as well as other formatting issues. You have ten

days to tender a corrected petition for discretionary review.

Documents

Lead Document isbell pdr PDR 12.13.17 w opinion.pdf [Original]

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