PD-0813-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/16/2015 1:55:51 PM Accepted 10/16/2015 3:07:47 PM No. PD-0813-15 ABEL ACOSTA CLERK In the Texas Court of Criminal Appeals At Austin

No. 06-14-00109-CR In the Court of Appeals for the Sixth Appellate District of Texas At Texarkana

MARLO DONTA PERSON, Appellant V. THE STATE OF TEXAS, Appellee

PETITION FOR DISCRETIONARY REVIEW OF APPELLANT MARLO DONTA PERSON

Tara N. Long State Bar No. 24032680 Long Law Firm, PLLC October 16, 2015 2656 South Loop West, Suite 255 Houston, Texas 77054 Telephone: (713) 349-8896 Fax: (713) 349-8863 Counsel for Appellant

APPELLANT REQUESTS ORAL ARGUMENT IDENTITIES OF THE PARTIES Appellant: Marlo D. Persons Defense Counsel at Trial: Mr. Daniel J. O’Brien North Ludlow Street Talbott Tower, Suite 1210 Dayton, OH 45402 Mr. Scott A. Cornuaud 2611 Lee Street Greenville, TX 75401 Appellant’s Attorney on Appeal: Elisha M. Hollis 2608 Stonewall Street P.O. Box 1535 Greenville, TX 75403 Prosecutions’ Attorney at Trial: Ms. Lauren Hudgeons Assistant District Attorney Hunt County District Attorney 2507 Lee Street, 4th Floor Greenville, TX 75401 Appellee’s Attorney on Appeal: Ms. Keli M. Aiken First Assistant District Attorney P.O. Box 441 4th Floor Hunt County Courthouse Greenville, TX 75403 Trial Judge: Hon. Richard A. Beacom 354th Judicial District Court 2507 Lee Street, 3rd Floor Greenville, TX 75401

TABLE OF CONTENTS

Identities of the Parties 2 Table of Contents 3 Index of Authorities 4 Statement of the Case 5 Statement of Procedural History 5 Grounds for Review 5-6 Arguments & Authorities 6 Prayer Appendix

INDEX OF AUTHORITIES

CASES Federal: Rodriguez vs. Unites States, No. 13-9972, 575 U.S. ____ (2015).

State: Atkinson v. State, 923 S.W.2d 21 (Tex. App.—Ft. Worth 1996).

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

Mendoza v. State, 88 S.W.3d 23 (Tex. Crim. App. 2002).

Mills v. State, 296 S.W.3d 843 (Tex. App. –Austin 2009).

STATUTES TEXAS CODE OF CRIMINAL PROCEDURE Article 38.23 TEXAS TRANSPORTATION CODE Section 545.062

STATEMENT OF THE CASE

Appellant Marlo D. Persons was charged with possession of cocaine in an amount of 400 grams or more. Furthermore, the grand jury found that Appellant had used or exhibited a deadly weapon during the commission of this offense. After entering a plea of Not Guilty, Appellant was tried by jury and found guilty and sentenced to 55 years in the Texas Department of Criminal Justice. Appellant appealed on two issues both arising out of Trial Court’s denial of Appellant’s request of an Article 38.23(a) jury instruction.

STATEMENT OF PROCEDURAL HISTORY The Sixth Court of Appeals found no error and affirmed the trial court’s judgment in a decision rendered June 2, 2015. Appellant’s motion for rehearing, filed June 23, 2015, was overruled on June 30, 2015. Appellant did not file a motion for another rehearing. Appellant now files his petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure.

GROUNDS FOR REVIEW I. Whether the Court of Appeals erred when rendering a decision in which the evidence on the disputed issue of “following too closely” behind a vehicle, raised a fact issue as to whether the traffic stop was a pretext stop, that lead the Court of Criminal Appeals to render a decision is in conflict with this Court’s decision in Madden vs. State, and Mills vs. State and the applicability of Article 38.32 jury instructions.

II. Whether the Fact that The Court of Appeals Did Not Take Into Account Rodriguez vs. United States, that the Motion to Suppress and critical argument that the search went beyond the scope of the stop entitled Appellant to an Article 38.32 instruction.

ARGUMENTS & AUTHORITIES I. Whether the Court of Appeals erred when rendering a decision in which the evidence on the disputed issue of “following too closely” behind a vehicle, raised a fact issue as to whether the traffic stop was a pretext stop, that lead the Court of Criminal Appeals to render a decision is in conflict with this Court’s decision in Madden vs. State, and Mills vs. State and the applicability of Article 38.32 jury instructions.

The evidence presented at the trial on the disputed issue of what the measurable distance between vehicles, traveling in the same lane of travel and in the same direction, constitutes a traffic violation of traveling too closely was sufficient to merit an instruction to the jury under Texas Criminal Code of Procedure Article 38.239a). The denial of the trial counsel’s request for a 38.23(a) jury instruction was error on the part of the Court of Appeals and trial judge because the Motion to Suppress issues was taken away from the trier of, the facts, the jury, as to whether or not the Appellant’s 4th Amendment rights were violated either by the making of a pretext arrest or a consent to search that was unconstitutionally taken form the co-defendant.

The Trooper testified that one of the reasons he performed the traffic stop on the vehicle Appellant was traveling it was observed that Appellant’s vehicle was traveling too close behind another vehicle. R.R. Vol. 45 8-10. The Trooper claimed the distance was less than 150 feet in violation of the Transportation Code. RR Vol. 7 46 19-47. Appellant’s trial counsel made the issue of a distance dispute relevant to the actual distance of the car Appellant was in and the car in front of it. Trial counsel said that an instruction on the Penal Code 38.23 should be included in the jury charge because the multiple issues (distance) being disputed could be resolved with the Jury’s viewing of the Trooper’s dash cam video of the cars. The trial court ruled that the video was not sufficient to resolve the proposed dispute and denied those instructions. R.R. Vol.

9 41-19 thru 24.

On Appeal, the Court of Appeals held that both the Trial Court and the Court of Appeals had themselves reviewed the video and decided that what the Trooper had testified to was supported with the dash cam video. It is Appellant’s contention that neither the trial court nor the Court of Appeals were authorized under 38.23 to resolve this dispute. It is the sole problem of the trier of fact, the jury, to resolve this dispute. According to Texas Transportation Code Section 545.062, it does not state or use a measureable distance at all.

Sec. 545.062. FOLLOWING DISTANCE. (a) An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway.

(b) An operator of a truck or of a motor vehicle drawing another vehicle who is on a roadway outside a business or residential district and who is following another truck or motor vehicle drawing another vehicle shall, if conditions permit, leave sufficient space between the vehicles so that a vehicle passing the operator can safely enter and occupy the space. This subsection does not prohibit a truck or a motor vehicle drawing another vehicle from passing another vehicle. (c) An operator on a roadway outside a business or residential district driving in a caravan of other vehicles or a motorcade shall allow sufficient space between the operator and the vehicle preceding the operator so that another vehicle can safely enter and occupy the space. This subsection does not apply to a funeral procession.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

It makes no reference the 150 feet that the Trooper testified to during trial on direct or cross- examination. R.R. Vol. 7 -34- thr 186 or RR vol 8-58 thr 81. The trooper also testified that through his training his opinion is that we were following too close. RR. Vol. 7-121 and when such a stop is based on objective criteria the risk of arbitrary and abusive police practices tolerable exceeds possible limits allowed in Terry’s reasonably suspicious protections in their opinion in effect substitutes for specific articulable facts reasonable suspicion analysis.

Furthermore, the officers following too close clearly doesn’t constitute a specific articulable fact to support a stop and cross examination did reveal that the officer definition of following to close is not in fact a description of conduct described by the statute in question. Therefore, the jury was left with testimony from an officer that was false misleading and perjured. The Code of Criminal Procedure Art. 38.23 states in pertinent part that any in case when the legal evidence raises an issue hereunder the jury shall be instructed that if it believes or have a reasonable doubt that the evidence was obtained in violation of a provision of this article, then upon such an event the jury should disregard any of such evidence obtained. 38.23a. Since such article is mandatory in nature, it is one of the statutory rights of the Defendant. Mendoza, 88 SW3d 236, 239 (Tex. Crim. App. 2002). The right to the instruction attached to Appellant’s case as soon as the actual

dispute as the legality of seizure or other obtained evidence specifically the distance required for the stop became an issue. Madden v. State, 242 S.W.3d 504, 513-514 (Tex. Crim. App. 2007).

II. Whether the fact that the Court of Appeals did not take into account Rodriguez vs. United States, that the Motion to Suppress and critical argument that the search went beyond the scope of the stop entitled Appellant to an Article 38.32 instruction. The Rodriguez majority opinion, written by Justice Ginsburg was announced on April 21, 2015.

The Court of Appeals and the trial court improperly denied the Appellant’s Motion to Suppress because there were no articulable facts or outside information, apart from the courtier profile elements that Trooper Zane Rhone, the officer that made the traffic stop and the arresting officer in this case, testified to at the hearing that he stated observed conduct of the driver of the vehicle that fits the profile was indicative of a person taking part in drug related activities, once the co-defendant was issued a warning the detention or stop should have ended.

Trooper Zane Rhone when testifying and the dash cam video shows that appellant was not told he could leave the Texas Department of Public Safety Trooper’s patrol vehicle and was being detained, although he had properly identified himself, and there was no law violation witnessed by trooper Zane that would indicate that criminal activity was occurring and the traffic stop went beyond the scope of the traffic stop by the officer. Thus, the consent to search was illegal and the search was beyond the scope of the stop and the evidence should have been suppressed by the court at the hearing. Rodriguez v. United States, No. 13-9972, decided on April 21, 2015 and printed on April 22, 2015.

The panel was not made aware of the ruling by the United States Supreme Court and the outcome of their analysis of the evidence when making their ruling or judgment might have been materially affected.

PRAYER Appellant respectfully prays that this Honorable Court grant his Petition for Discretionary Review, set this case for oral argument, and reverse the decision of the Court of Appeals, declare that Appellant was entitled to a Texas Code of Criminal Procedure Article 38.23 jury instructions, and quash the charges against him.

Respectfully submitted, Long Law Firm, PLLC 2656 South Loop West, Suite 255 Houston, Texas 77054 (713) 349-8896 Tel. (713) 349-8863 Fax [email protected]

By: /s/ Tara N. Long Tara N. Long State Bar No. 24032680 Attorney for Appellant Marlo D. Persons

CERTIFICATE OF SERVICE I do hereby certify that on the 28th day of September, 2015, a true and correct copy of this Petition for Discretionary Review of Appellant Marlo D. Persons, was forwarded by first class U.S. Mail to: Noble Dan Walker, Jr. District Attorney Hunt County, Texas Keli M. Aiken First Assistant District Attorney P.O. Box 441 4th Floor Hunt County Courthouse Greenville, TX 75403 By: /s/ Tara N. Long Tara N. Long State Bar No. 24032680 Attorney for Appellant Marlo D. Persons

CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this petition contains 2,128 words (excluding the caption, table of contents, table of authorities, signature, proof of service, certification, appendix and certificate of compliance). This is a computer-generated document created in Microsoft Word, using 14-point typeface for all text, except for footnotes which are in 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.

/s/ Tara N. Long

APPENDIX A. June 2, 2015, Judgment of the Sixth Court of Appeals, Marlo D. Persons v. The State of Texas, No. 06-14-00109-CR.

B. June 2, 2015, Opinion of the Sixth Court of Appeals, Marlo D. Persons v. The State of Texas, No. 06-14-00109-CR.