IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS VS. NO CR. ON APPEAL FROM THE nd

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1 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS 5th Court of Appeals FILED: 11/17/11 14:00 Lisa Matz, Clerk LOGAN RYAN PAULSEN, Appellant VS. NO CR THE STATE OF TEXAS, Appellee. ON APPEAL FROM THE nd 382 JUDICIAL DISTRICT COURT OF ROCKWALL COUNTY, TEXAS NO. CR PRESIDING JUDGE J. BRIAN WILLIAMS ************************** APPELLANT S BRIEF ************************** GARY A. UDASHEN Bar Card Number SORRELS, UDASHEN & ANTON 2311 CEDAR SPRINGS ROAD SUITE 250 DALLAS, TEXAS (214) (214) FAX ATTORNEY FOR APPELLANT

2 LIST OF PARTIES APPELLANT DEFENSE COUNSEL AT TRIAL APPELLANT S ATTORNEY ON APPEAL STATE S ATTORNEY AT TRIAL STATE S ATTORNEY ON APPEAL COURT Logan Ryan Paulsen Justin K. Hall 328 West Interstate Hwy. 30 Suite 2 Garland, Texas Gary A. Udashen Sorrels, Udashen & Anton 2311 Cedar Springs Road Suite 250 Dallas, Texas Thomas M. Horan II Tyler J. Eaton Lauren Ellis Assistant District Attorneys Rockwall Co. District Attorney s Off Ridge Road, Suite 105 Rockwall, Texas Not Yet Designated Honorable J. Brian Williams Judge Presiding Rockwall County, Texas -i-

3 TABLE OF CONTENTS Page LIST OF PARTIES i TABLE OF CONTENTS ii INDEX OF AUTHORITIES iii-vi STATEMENT OF THE CASE ISSUES PRESENTED STATEMENT OF FACTS SUMMARY OF THE ARGUMENT ISSUES RESTATED WITH ARGUMENT AND AUTHORITIES ISSUE NUMBER I The Trial Court Erred In Failing to Suppress the Evidence. ISSUE NUMBER II The Trial Court Erred in Failing to Instruct the Jury Under Art , Tex. Code Crim. Proc. ISSUE NUMBER III The Trial Court Erred by Overruling Paulsen s Objection to the State s Improper Comment Which Shifted the Burden of Proof. PRAYER CERTIFICATE OF SERVICE ii-

4 INDEX OF AUTHORITIES Cases Page Abbott v. State, 196 S.W.3d 334 (Tex.App.-Waco 2006, pet. ref'd) , 15 Abdnor v. State, 871 S.W.2d 726 (Tex.Crim.App.1994) Adams v. State, 67 S.W.3d 450 (Tex.App. Fort Worth,2002) Albiar v. State, 739 S.W.2d 360 (Tex. Crim. App. 1987) Bass v. State, 64 S.W.3d 646 (Tex.App. Texarkana,2001, pet. ref d) , 10 Brooks v. State, 132 S.W.3d 702 (Tex.App. -- Dallas 2004, pet. ref'd) Cardenas v. State, 971 S.W.2d 645 (Tex.App. - Dallas 1998, pet. ref'd) Carrillo v. State, 566 S.W.2d 902 (Tex. Crim. App. [Panel Op.] 1978) Castro v. State, 227 S.W.3d 737 (Tex.Crim.App.2007) Chapman v. California, 386 U.S. 18 (1967) Coffin v. United States, 156 U.S. 432 (1895) Cook v. State, 63 S.W.3d 924 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) Deck v. Missouri, 544 U.S. 622 (U.S.Mo.,2005) Erazo v. State, 144 S.W.3d 487 (Tex.Crim.App. 2004) Estrada v. State, 154 S.W.3d 604 (Tex.Crim.App. 2005) Ford v. State, 158 S.W.3d 488 (Tex.Crim.App.2005) , 5 Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.,1997) iii-

5 Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App. 1989) (en banc) , 18 Hernandez v. State, 983 S.W.2d 867 (Tex.App. Austin,1998, pet. ref d) Houston v. Estelle, 569 F.2d 372 (5th Cir. 1978) In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) James v. State, 102 S.W.3d 162 (Tex.App.-Fort Worth 2003, pet. ref'd) Johnson v. State, 68 S.W.3d 644 (Tex.Crim.App. 2002) Kessler v. State, 2010 WL (Tex.App.-Fort Worth) Kunkel v. State, 46 S.W.3d 328 (Tex.App. Houston [14 Dist.],2001) Mendoza v. State, 88 S.W.3d 236 (Tex.Crim.App.,2002) Miera v. State, 663 S.W.2d 508 (Tex. App. - Amarillo 1983) Mitchell v. State, 632 S.W.2d 774 (Tex. App. - Houston [14th Dist.] 1982) Monge v. State, 315 S.W.3d 35 (Tex.Crim.App.2010) Montgomery v. State, 821 S.W.2d 314 (Tex.App. -- Dallas 1991, pet. ref'd) Moore v. State, 574 S.W.2d 122 (Tex.Crim.App.1978) Morris v. State, 2011 WL (Tex.App.-Fort Worth,2011) Mosley v. State, 960 S.W.2d 200 (Tex.App. -- Corpus Christi 1997, no pet.) Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993) Murphy v. State, 640 S.W.2d 297 (Tex. Crim. App. 1982) Rachal v. State, 917 S.W.2d 799 (Tex. Crim. App.), cert. denied, 519 U.S (1996) iv-

6 Reynolds v. State, 848 S.W.2d 148 (Tex. Crim. App., 1993) , 12, 16 Sakil v. State, 287 S.W.3d 23 (Tex.Crim.App.2009) State v. Garcia Cantu, 253 S.W.3d 236 (Tex.Crim.App. 2008) State v. Nailor, 949 S.W.2d 357 (Tex.App. San Antonio, 1997) , 10 Taylor v. State, 152 S.W.3d 749 (Tex.App. Houston [1 Dist.],2004) Thomas v. State, 723 S.W.2d 696 (Tex.Crim.App.1986) Torres v. State, 182 S.W.3d 899 (Tex.Crim.App.2005) , 5 Trahan v. State, 16 S.W.3d 146 (Tex.App. Beaumont 2000, no pet.) Wall v. State, 286 S.W.3d 372 (Tex.App.-Corpus Christi 2008, pet. ref'd) Waters v. State, 2001 WL (Tex.App.-Hous. (1 Dist.) Wesbrook v. State, 29 S.W.3d 103 (Tex.Crim.App.2000), cert. denied, 532 U.S. 944 (2001) , 18 White v. State, 201 S.W.3d 233 (Tex. App.- Fort Worth, 2006) Wong Sun v. United States, 371 U.S. 471 (1963) Woods v. State, 956 S.W.2d 33 (Tex.Crim.App.1997) York v. State, 258 S.W.3d 712 (Tex.App.-Waco 2008, pet. ref'd) Codes and Rules TEX. CODE CRIM. PROC. art , 3, 11, 12, 13, 14, 19 TEX. R. APP. PROC. 44.2(a) , 17 -v-

7 Constitutional Provisions U.S. Const. amend. IV U.S. Const. amend. XIV vi-

8 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS LOGAN RYAN PAULSEN, Appellant VS. NO CR THE STATE OF TEXAS, Appellee. ON APPEAL FROM THE nd 382 JUDICIAL DISTRICT COURT OF ROCKWALL COUNTY, TEXAS NO. CR PRESIDING JUDGE J. BRIAN WILLIAMS ************************** APPELLANT S BRIEF ************************** STATEMENT OF THE CASE Appellant, LOGAN RYAN PAULSEN, was charged with the offense of Driving 1 While Intoxicated alleged to have occurred on May 23, [CR 3]. Paulsen entered a plea of not guilty and exercised his right to a jury trial on June 7-8, 2011, before a jury and the Honorable J. Brian Williams. During the trial, a hearing on a motion to suppress all evidence was heard before Judge Williams and denied. The jury rendered a verdict of guilty. 1 CR refers to Clerk s Record. Appellant s Brief - Page 1

9 Paulsen was sentenced to 90 days in the Rockwall County Jail which was suspended and he was placed on community supervision for 24 months. Paulsen was also sentenced to complete 50 hours of community service, pay a $900 fine, receive an ignition interlock device, and complete an alcohol drug evaluation. [CR 66]. A notice of appeal was filed on June 30, [CR 67]. ISSUES PRESENTED Issue I: Issue II: The Trial Court Erred In Failing to Suppress the Evidence. The Trial Court Erred in Failing to Instruct the Jury Under Art , Tex. Code Crim. Proc. Issue III: The Trial Court Erred by Overruling Paulsen s Objection to the State s Improper Comment Which Shifted the Burden of Proof. STATEMENT OF FACTS On May 23, 2010, at approximately 1:00 a.m., Officer John Arrowood was patrolling 2 the parking lot located at The Harbor in Rockwall County. [3RR9]. While patrolling, Officer Arrowood observed a white SUV, driven by Paulsen, traveling down the middle of a parking lot row. [3RR10]. Officer Arrowood did not observe any pedestrians or other vehicles traveling near the SUV. [3RR68]. As Officer Arrowood pulled behind Paulsen and began to follow, he noticed that Paulsen sped up. Arrowood did not know how fast Pauslen was driving but it was not a speeding violation. [3RR10-11]. Officer Arrowood continued to follow Pauslen and observed him make a wide right turn as he entered onto another level of the parking lot. 2 RR refers to Reporter s Record. Appellant s Brief - Page 2

10 According to Arrowood, Paulsen almost hit a curb. At the time, there were no pedestrians or other vehicles traveling nearby. [3RR10, 66]. Based on the aforementioned observations, Officer Arrowood conducted a stop, performed the standard field sobriety tests and subsequently arrested Paulsen for driving while intoxicated. [3RR15, 33]. Paulsen was taken to Presbyterian Hospital where he gave consent for his blood to be drawn and had a blood alcohol level of [3RR40; 4RR26]. SUMMARY OF THE ARGUMENT Issue I: A review of the totality of the circumstances reveals that the officer lacked a reasonable suspicion to conduct a traffic stop as there were no traffic violations and no signs of erratic or unsafe driving. Thus, the resulting evidence should be suppressed. Issue II: Defense counsel properly requested an instruction under TEX. CODE CRIM. PROC. art as there was a question of fact regarding whether Officer Arrowood conducted a valid traffic stop. Issue III: The State commented that Paulsen could have had his blood sample tested if he were concerned about contamination. Such a comment improperly shifted the burden of proof to Paulsen. Issue I ISSUES RESTATED WITH ARGUMENT AND AUTHORITIES The Trial Court Erred In Failing to Suppress the Evidence. Appellant s Brief - Page 3

11 Standard of Review When faced with the application of legal principles to a certain set of facts, a de novo review is required. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005); Johnson v. State, 68 S.W.3d 644, (Tex.Crim.App. 2002). This includes a trial court s determination of reasonable suspicion and probable cause. State v. Garcia Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008); Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.,1997)( determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal ). Upon review, the appellate court is limited to the evidence adduced at the suppression hearing. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.), cert. denied, 519 U.S. 1043,(1996); White v. State, 201 S.W.3d 233, (Tex. App.- Fort Worth, 2006). Reversal is required when a trial court has abused its discretion and applied an erroneous legal standard or when no reasonable view of the record could support the trial court s conclusion. State v. Nailor, 949 S.W.2d 357, 359 (Tex.App. San Antonio, 1997). Argument and Authorities The Fourth Amendment protection against unreasonable searches and seizures remains in place for the basic conviction that individuals should not be subjected to unreasonable actions by law enforcement. U.S. Const. amend. IV. It is presumed that police conduct is proper unless a defendant produces evidence to the contrary. Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005); Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005). This initial burden is satisfied by establishing that a search or seizure occurred without a warrant. Torres, 182 S.W.3d at 902; Ford, 158 S.W.3d at 492. The Appellant s Brief - Page 4

12 burden then becomes the State s to prove that the defendant was reasonably detained. Torres, 182 S.W.3d at 902; Ford, 158 S.W.3d at 492. Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex.Crim.App.2007). Such a standard does not allow for an officer s subjective intent, but is limited to the objective basis for the stop. Ford v. State, 158 S.W.3d at 492. A reasonable suspicion is determined by considering the totality of the circumstances. Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997). The totality of the circumstances here fails to warrant a finding of reasonable suspicion that Paulsen was driving while intoxicated. See James v. State, 102 S.W.3d 162, (Tex.App.-Fort Worth 2003, pet. ref'd). First, Officer Arrowood admitted that Paulsen did not commit a traffic violation. [3RR11]. There were no lanes, traffic signals, or even a stop sign to observe. [3RR61-63]. While there is no requirement that a traffic violation occur in order for an officer to have sufficient reasonable suspicion to justify a stop, it is worth noting that no citations were issued and Officer Arrowood did not observe any violations. James v. State, 102 S.W.3d 162, 172 (Tex.App. Fort Worth, 2003)( Erratic or unsafe driving may furnish a sufficient basis for a reasonable suspicion that the driver is intoxicated even absent evidence of violation of a specific traffic law ); Cook v. State, 63 S.W.3d 924, 929 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). However, if the officer justifies the stop on the basis that the accused committed a traffic violation, proof that a violation was committed must be presented. Bass v. State, 64 S.W.3d 646 (Tex.App. Appellant s Brief - Page 5

13 Texarkana,2001, pet. ref d); Hernandez v. State, 983 S.W.2d 867 (Tex.App. Austin,1998, pet. ref d). Second, it was not reasonable for Officer Arrowood to conclude that Paulsen s driving behavior justified a reasonable suspicion that criminal activity was afoot. Three observations made by Officer Arrowood were asserted as reasonable suspicion to initiate a stop: 1) Driving down the middle of the parking lot row between cars, as opposed to the right or the left 2) Accelerating in the parking lot 3) Making a right turn and almost hitting a curb [3RR10]. A detailed look at each of these observations confirms that Officer Arrowood s suspicions were not reasonable. Driving in the Middle The fact that Paulsen was driving in the middle of a parking lot row struck Officer Arrowood as odd and was what initially drew his attention to Paulsen since normal people drive either on the right or left even if there are no designated lanes. [3RR10, 57-58]. Arrowood further asserted that people usually treat an unmarked parking lot row as a two-lane road and that [s]ombeody driving down the middle is just the same as being on a two-lane highway when you are intoxicated and that it is not the smartest thing. [3RR58-59]. Arrowood did admit, however, that he had also observed other individuals drive down the middle of the parking row who were not intoxicated. [3RR59]. Such assertions regarding normal driving habits in a parking lot without designated Appellant s Brief - Page 6

14 lanes are uncorroborated. The State failed to establish what part of Officer Arrowhead s 15 years of experience qualified him to comment on the common driving habits and flow of traffic in a parking lot. [3RR6] There could have been a number of widely acceptable reasons for Paulsen to drive in the middle of the row. For instance, suppose Paulsen was searching for a parking spot. It would not be unreasonable to drive down the center of the row in order to be able to park on either side, depending on which spot was available. Or, as defense counsel argued, Paulsen could have been attempting to take the safest route in order to avoid hitting a pedestrian walking between cars. The mere fact that no other vehicle could pass Paulsen in the parking lot is not an indicator of unsafe driving. This is not a two lane or even one-lane roadway. The parking lot simply does not have any lanes and the rules regarding lanes of travel on a public roadway are not applicable. Therefore, it was not reasonable for Officer Arrowood to suspect that Paulsen was intoxicated because he was driving in the middle lane. Acceleration Officer Arrowood also testified that Paulsen started speeding up after he pulled up behind him. [3RR10]. He further speculated that anyone watching a late movie or leaving could be walking through the parking lot, thus creating an unsafe situation. There was no posted speed limit in the parking lot. Arrowood did not testify that Paulsen was speeding, but that he sped up. [3RR10]. In fact, Officer Arrowood could not testify to how fast Paulsen was actually driving or even estimate how fast he was driving. Such information is important when determining that an individual is practicing unsafe driving habits. Appellant s Brief - Page 7

15 Thus, the conclusion that Paulsen was driving in an unsafe manner is not warranted and fails to factor in the common nervousness associated with an officer following behind an individual s vehicle or the possibility that Paulsen sped up simply because he was aware that someone was behind him, possibly looking for a spot. In any event, according to Officer Arrowood s testimony, there was no pedestrian or vehicle in danger of being struck by Paulsen so there was no unsafe condition created. [3RR68]. Right Turn Officer Arrowood noticed Paulson make a right turn and almost hit a curb after he began following him. He also observed Paulsen swing his vehicle way right out after almost hitting the curb. At this point, Arrowood determined that he needed to talk with Paulsen. [3RR10]. Again, such set of facts hardly warrants a finding of reasonable suspicion and does not qualify as erratic driving since no danger existed. [3RR66-67]. See Taylor v. State, 152 S.W.3d 749, 752 (Tex.App. Houston [1 Dist.],2004)( unsafe driving constitutes a breach of the peace in and of itself when it places others in imminent danger of harm. )(citing Kunkel v. State, 46 S.W.3d 328 (Tex.App. Houston [14 Dist.],2001)). A comparison with other cases makes it clear that Paulsen s actions did not warrant suspicion. See Adams v. State, 67 S.W.3d 450, 451 (Tex.App. Fort Worth,2002)(officer observed defendant driving at high rate of speed, change lanes without using a turn signal, weave within his lane, swerve outside his lane onto the shoulder several times, exit the highway and make a wide turn and almost hit the curb twice); Waters v. State, 2001 WL (Tex.App.-Hous. (1 Dist.)), 1 (Tex.App.-Hous. (1 Dist.),2001)(Witness saw appellant driving in the same direction, but noticed that appellant was in the far opposite lane reserved Appellant s Brief - Page 8

16 for oncoming traffic; appellant swerved over four lanes to the far right hand lane and almost hit the curb; she almost hit the curb twice and narrowly missed hitting another car that was making a right turn; approached a red light and was not able to stop in time and crashed into the back of a van stopped at the light); Kessler v. State, 2010 WL (Tex.App.-Fort Worth), 5 (Tex.App.-Fort Worth,2010)(not designated for publication)(officer observed Appellant abruptly swerve to the left to avoid a curb shortly after 2:00 a.m., which is when local bars closed. Appellant also failed to drive the car within a single lane of traffic, moving the majority of the vehicle into a designated left-turn lane while continuing to drive straight. Officer testified that based on his experience, narrowly avoiding a curb with such a quick movement and failing to remain in a single lane were signs of possible intoxication.). Totality of the Circumstances The total weight of these circumstances fails to give rise to a reasonable suspicion. None of the observations made by the officer included any of the 15 indicators of a possible DWI mentioned by defense counsel which were taken from the National Highway Traffic Safety Administration (NHTSA). [3RR61-63]. None of the observations made were captured on the video of the stop. Arrowood did not testify to any action which came close to causing an accident or was unsafe, but based all his suspicions on what could have happened under a different set of facts. See Trahan v. State, 16 S.W.3d 146, 147 (Tex.App. Beaumont 2000, no pet.)(court held that exiting a freeway without a turn signal was not a statutory violation nor was there evidence in the case that exiting the freeway under the circumstances was unsafe). Although Arrowood claimed it was unsafe to travel down the middle of the parking lot row, there were no other cars or pedestrians attempting to pass Appellant s Brief - Page 9

17 from behind or in the opposite direction. This was an important detail to establish as the officer testified that this took place at a time of night when people leave bars and movie theaters. However, Arrowood made no mention of how many people were actually located in the parking lot at the time he made his observations. Furthermore, the video fails to shed any light on these circumstances as Officer Arrowood did not begin recording until he and Paulsen had exited their vehicles. [3RR31-32, 66-68]. Officer Arrowood also asserted that it was unsafe for Paulsen to speed up in the parking lot, but failed to note the unsafe speed. Finally, Arrowood stated that Paulsen almost hit a curb and parked incorrectly, but did not state if there were any pedestrians or vehicles located nearby. What Arrowood did state was that the way Paulsen parked was not a hazard to anyone. [3RR65-66, 68]. See Bass v. State, 64 S.W.3d 646, 649 (Tex.App. Texarkana,2001)(testimony failed to reveal specific, articulable facts sufficient to give rise to a reasonable suspicion that defendant was intoxicated where officer testified that defendant was swerving within his lane). Conclusion Based on the foregoing, the totality of the circumstances falls short of a reasonable suspicion to stop Paulsen for driving while intoxicated. As such, the trial court erred in 3 denying Paulsen s motion to suppress. The motion to suppress should therefore be granted 3 Compare State v. Nailor, 949 S.W.2d 357, 358 (Tex.App. San Antonio, 1997)(defendant staggered down a hallway and entered the parking garage, hotel employee heard screeching tires and witnessed defendant driving in loops around the third floor at a high rate of speed and narrowly missing parked vehicles. Employee unsuccessfully attempted to stop defendant with verbal commands and by blowing a whistle at him. Defendant momentarily stopped the vehicle when he hit a high curb. Employee approached the stopped Lincoln, banged on the window, and instructed defendant to turn off the vehicle. Ignoring this request, defendant sped forward, forcing an employee to jump out of his path, and drove to the exit gate where he was met by police officer, who was there in response to a DWI report). Appellant s Brief - Page 10

18 and the matter dismissed. Issue II The Trial Court Erred in Failing to Instruct the Jury Under Art , Tex. Code Crim. Proc. Standard of Review This Court is charged with a two-step process when reviewing a jury charge error. First, the Court must determine whether an actual error occurred. Second, the Court must determine whether sufficient harm resulted from the error to require reversal. Abdnor\ v. State, 871 S.W.2d 726, (Tex.Crim.App.1994); see also Sakil v. State, 287 S.W.3d 23, (Tex.Crim.App.2009); Reynolds v. State, 848 S.W.2d 148, 150 (Tex. Crim. App., 1993). Argument and Authorities When a defendant properly challenges the legality of the evidence produced and requests a jury instruction regarding said evidence, the trial court must submit the instruction to the jury. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993)(citing Moore v. State, 574 S.W.2d 122, 124 (Tex.Crim.App.1978)). The trial court must instruct the jury to disregard illegally obtained evidence if the defendant raises a fact issue concerning the manner in which the evidence was obtained and requests the instruction. Mendoza v. State, 88 S.W.3d 236, 239 (Tex.Crim.App.,2002)(citing Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App.1986)). The evidence raising the fact issue may be strong, weak, contradicted, unimpeached, or unbelievable. Id. According to Art (a), Tex Code Crim. Proc.: Appellant s Brief - Page 11

19 No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained by violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained. The Court in Murphy v. State, 640 S.W.2d 297 (Tex. Crim. App. 1982), discussed Art , Tex. Code Crim. Proc., stating: The terms of the statute are mandatory, and when an issue of fact is raised, a defendant has a statutory right to have the jury charged accordingly. The only question is whether under the facts of a particular case an issue has been raised by the evidence so as to require a jury instruction. See also, Miera v. State, 663 S.W.2d 508 (Tex. App. - Amarillo 1983); Mitchell v. State, 632 S.W.2d 774 (Tex. App. - Houston [14th Dist.] 1982). Three foundation requirements trigger an article instruction: (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) the contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence claimed to have been seized illegally. Morris v. State, 2011 WL (Tex.App.-Fort Worth,2011). In Reynolds v. State, 848 S.W.2d 148 (Tex. Crim. App. 1993), the court reversed a case for failure to instruct the jury under Art as to probable cause. In Reynolds, the defendant was stopped by an officer for speeding and then determined to be intoxicated. The officer testified that the defendant told him he did not think he was going that fast and was going to contest the speeding ticket. The defendant s brother, a passenger in the car, testified Appellant s Brief - Page 12

20 that he did not think appellant had been speeding and that appellant did not think he had been speeding. The court found that appellant was entitled to a charge under and that a properly instructed jury could have found the stop was invalid and found the sobriety test, video and alcohol test to be inadmissible. Here, the defense requested that the jury be instructed on the lack of reasonable 4 suspicion for the traffic stop. [4RR53]. The State responded by arguing that there was no issue of fact present which required an instruction under Article because there was no evidence contradicting the five main points which led to reasonable suspicion: there were six bars in the location, it was a time of night when the bars were closing or about to close, the officer observed the defendant s erratic driving which included driving in the middle of the park row instead of on the typically driven right-hand side, driving with erratic speeds going up and down which drew the officer s attention to the car, and nearly striking a curb on a turn. [4RR54]. The issue of fact is whether Officer Arrowood conducted a valid stop of Paulsen. The question is whether the driving facts Officer Arrowood observed are indications of intoxication as he claimed as the justification for the stop. If they are not, then the stop was improper. Although Officer Arrowood classified this as a traffic stop, he admitted that there was no traffic violation, thus eliminating a traffic violation as a basis for the stop. [3RR11-12, 45-47, 62, 64]. Whether the driving facts indicated intoxication is a factual issue that 4 At the point in the trial where the trial court overruled the motion to suppress the trial court stated, However you can raise it later on to the jury at that point in the trial. [4RR82]. Nevertheless, when that point in the trial arrived, the trial court denied the requested jury instruction. Appellant s Brief - Page 13

21 5 Paulsen was entitled to have the jury consider. As such, Paulsen was entitled to a jury instruction under Article Issue III The Trial Court Erred by Overruling Paulsen s Objection to the State s Improper Comment Which Shifted the Burden of Proof. Standard of Review A trial court s ruling on an objection to a final argument is reviewed under the abuse of discretion standard. See York v. State, 258 S.W.3d 712, 717 (Tex.App.-Waco 2008, pet. ref'd). Once it is determined that a trial court has erred in overruling an objection to the state s final argument, a harm analysis under Texas Rule of Appellate Procedure 44.2(a) is required. See Tex.R.App. P. 44.2(a); Abbott v. State, 196 S.W.3d 334, (Tex.App.- Waco 2006, pet. ref'd) (concluding that jury argument was improper where the State's closing argument misstated the law on the burden of proof). The deprivation of the defendant s presumption of innocence violates a constitutional guarantee of a fair and impartial trial. Abbott, 196 S.W.3d at 344 (citing U.S. Const. amend. XIV). Such an error must therefore be reversed unless it is determined beyond a reasonable doubt that the error did not contribute to the defendant s conviction. See Tex.R.App. P. 44.2(a); Abbott, 196 S.W.3d at A harm analysis includes consideration of the following: (1) the source and nature of the error; (2) the extent to which the State emphasized the error; (3) the probable collateral implications of the error; 5 Whether the driving facts show intoxication is a fact issue, as opposed to the question of whether an observation of intoxicated driving justifies a stop of the vehicle, which is a legal issue. Appellant s Brief - Page 14

22 (4) the weight a juror would probably place upon the error; and (5) whether declaring the error harmless would encourage the State to repeat it with impunity. Wall v. State, 286 S.W.3d 372, 374 (Tex.App.-Corpus Christi 2008, pet. ref'd); Abbott, 196 S.W.3d at 344. Argument and Authorities While commenting on whether the blood drawn from Paulsen was contaminated, the State argued that if defense counsel was so concerned about contaminated blood, they could have tested it themselves, but they didn t. They did not. Paulsen s objection to this argument was overruled. [4RR85]. Permissible final argument encompasses four general areas: (1) summation of evidence; (2) reasonable deductions from the evidence; (3) an answer to argument of opposing counsel; and (4) a plea for law enforcement. Albiar v. State, 739 S.W.2d 360, 362 (Tex. Crim. App. 1987). The state is also permitted to comment on a defendant s failure to call competent and material witnesses. Carrillo v. State, 566 S.W.2d 902, 912 (Tex. Crim. App. [Panel Op.] 1978). Here, the State failed to remain within these confines. The State s comment went beyond summarizing the evidence, was not a reasonable deduction from the evidence, failed to answer the argument by defense and was not a plea for law enforcement. In fact, the State s argument was a direct attempt to shift the burden of proof to Paulsen to prove that the blood sample was contaminated when the burden was on the State to prove that the sample was not contaminated. Appellant s Brief - Page 15

23 While the State may argue that their comment was a proper response to the defense s final argument, it failed to provide an answer. [4RR81]. Defense counsel s comment went to the consistency of the evidence while the State s comment implied that Paulsen failed to conduct a test which could prove his innocence. Such a comment is distinguishable from a proper commenting on a failure to call competent and material witnesses. Reynolds, 848 S.W.2d at 790. Due process guarantees that an accused shall be protected "against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Further, the presumption of innocence lies at the foundation of the administration of our criminal law. Coffin v. United States, 156 U.S. 432, 453 (1895), quoted in Deck v. Missouri, 544 U.S. 622 (U.S.Mo.,2005). See Houston v. Estelle, 569 F.2d 372, 380 (5th Cir. 1978) (stating both state and federal law governing the limits of proper argument find their source in notions of fairness, the same source from which flows the right to due process of law). The State, through its argument, effectively eliminated one of the elements of its claim against Paulsen. Under the theory it posited to the jury, the State need not prove that the blood sample was valid and not contaminated. Rather the State s argument was that Paulsen was required to prove that the sample was contaminated. Erasing this element from the State s case denied Paulsen due process and due course of law, and caused the presumption of innocence to evaporate. The resulting error may have been cured by a jury instruction to disregard the State s Appellant s Brief - Page 16

24 improper comment, but since the trial court overruled the objection there was no remedy. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000), cert. denied, 532 U.S. 944 (2001)(an instruction to disregard impermissible argument generally cures any prejudicial effect). Should this Court affirm the trial court s decision to overrule the objection, the State would be permitted to improperly shift the burden to the defense in future cases by simply commenting on the fact that the defense did not perform certain laboratory tests when the credibility of their own results are called into question. Harm Analysis As the record reveals constitutional error, this Court must reverse the judgment of conviction, unless the Court determines beyond a reasonable doubt that the error did not contribute to the conviction. TEX. R. APP. PROC. 44.2(a). See Chapman v. California, 386 U.S. 18, 24 (1967); Brooks v. State, 132 S.W.3d 702, (Tex.App. -- Dallas 2004, pet. ref'd). In making a harmless-error determination under rule 44.2(a), the Court does not focus on the weight of other evidence of guilt. Montgomery v. State, 821 S.W.2d 314, 317 (Tex.App. -- Dallas 1991, pet. ref'd) (citing Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App. 1989) (en banc)); see Erazo v. State, 144 S.W.3d 487, (Tex.Crim.App. 2004). Rather, the Court determines whether the error might have prejudiced a juror's decisionmaking process. Montgomery, 821 S.W.2d at 317. Further, the Court calculates as much as possible the probable impact on the jury in light of the existence of other evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001). In performing a harmless-error analysis under rule 44.2(a), the Court isolates the Appellant s Brief - Page 17

25 effect of the error and determines how much weight a juror would probably place on the error. Harris, 790 S.W.2d at 587. If the error was of such a magnitude that in reasonable probability it disrupted the jury's orderly evaluation of all the evidence, no matter how overwhelming other evidence of guilt might have been, then the conviction must be reversed. Id. at 588. Unless the overwhelming evidence dissipates the error's effect on the jury's function in determining the facts, so that it did not contribute to the verdict, the error is harmful. Id. at 587. The Court asks if a reasonable probability exists that the error, either alone or in context, moved the jury from a state of nonpersuasion to one of persuasion beyond a reasonable doubt. Wesbrook, 29 S.W.3d at 119; Cardenas v. State, 971 S.W.2d 645, 651 (Tex.App. - Dallas 1998, pet. ref'd). If so, the error is harmful. Wesbrook, 29 S.W.3d at 119; Harris, 790 S.W.2d at 587. In making this determination, Harris directs the Court to examine six factors: (1) the source of the error; (2) the nature of the error; (3) whether and to what extent the State emphasized the error; (4) any collateral implications of the error; (5) the weight a juror would probably place on the error; and (6) whether declaring the error harmless would encourage the State to repeat it with impunity. Harris, 790 S.W.2d at 587; Mosley v. State, 960 S.W.2d 200, (Tex.App. -- Corpus Christi 1997, no pet.). The Court is "obligated to examine the entire record in a neutral, impartial and even-handed manner and not 'in the light most favorable to the prosecution.'" Harris, 790 S.W.2d at 586. The State was the source of the error, and the statement implicated the very essence of the criminal justice system -- the requirement that the State prove all elements of the offense beyond a reasonable doubt. The statement has collateral implications because it Appellant s Brief - Page 18

26 reduces the State s burden of proof, and declaring the error harmless would likely induce the State to repeat it. In fact, the State would be foolish not to adopt an argument that stealthily permits it to reduce its burden of proof. Finally, the jurors likely placed considerable weight on the statement. It is clear and concise. It directly informs the jury that the State need not prove the validity of the blood sample. Simply stated, the comment was erroneous and harmful. This Court cannot minimize the effect on the jury under all the circumstances of this case. The Court should reverse the judgment of the trial court and remand for a new trial. Conclusion The videotape of Paulsen s driving behavior discloses no traffic violations and fails to show any erratic or unsafe driving habits. Therefore, stop was not justified. As a result, all physical evidence resulting from the illegal stop and subsequent arrest was the fruit of the poisonous tree and must be suppressed. See Monge v. State, 315 S.W.3d 35, 40 (Tex.Crim.App.2010) (citing Wong Sun v. United States, 371 U.S. 471, 484 (1963)). In the alternative, Paulsen is entitled to a reversal and remand for a new trial since the trial court failed to give an Article instruction and erred when it failed to sustain Paulsen s objection to the State s improper shift of the burden of proof. PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court will either grant the suppression motion and dismiss this matter or remand the case to the trial court for a new trial. Appellant s Brief - Page 19

27 Respectfully submitted, GARY A. UDASHEN Texas State Bar No SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road Suite 250 Dallas, Texas fax ATTORNEY FOR APPELLANT CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Appellant s Brief was mailed to the Rockwall County District Attorney s Office, 1111 E. Yellowjacket Lane, Suite 201, Rockwall, Texas 75087, on this the 15th day of November, GARY A. UDASHEN Appellant s Brief - Page 20