Vollick, Richard H. ( 2015 )

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
CAUSE NO. PD-1193-15
IN THE COURT OF CRIMINALAPPEALS
AUSTIN, TEXAS
RICHARD VOLLICK
October 16, 2015
vs.
STATE OF TEXAS
PETITION FOR DISCRETIONARY REVIEW
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
RICHARD VOLLICK, Petitioner herein, respectfully requests this
Honorable Court to grant this Petition for Discretionary review from Cause
13-1400261-CR in the Thirteenth Court of Appeals, judgment and
memorandum opinion issued upon appeal from State of Texas vs. Richard
Vollick, Cause No. 13-CR-4388-8, in the 117th Judicial District Court,
Nueces County, Texas, the Honorable Sandra Watts presiding. Petitioner
would respectfully show this Honorable Court as follows:
Petitioner requests oral argument. Tex. R. App. P. 68.4(d)
1
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
Trial Judge
Hon. Sandra Watts
117th Judicial District
Nueces County Courthouse
Corpus Christi, Texas 78404
Petitioner
Richard Vollick
TDCJ #01926389
Clements Unit
9601 Spur 591
Amarillo, TX 79107-9606
Petitioner's Trial Counsel
John Lamerson
Rausch, Sturm, Israel, Enerson, & Hornic, LLC
15660 N. Dallas Pkwy, Suite 350
Dallas, TX 75248
Petitioner's Appellate and Petition Counsel
John S. Gilmore, Jr.
Attorney at Law
State Bar No. 07958500
622 S. Tancahua
Corpus Christi, TX 78401
Tel: (361) 882-4378
Christopher A. Dorsey
Attorney at Law
State Bar No. 24036493
606 N. Carancahua, Suite 1001
Corpus Christi, TX 78401
(361 ) 882-9991
2
Respondent's Trial Counsel
Ms. Deborah Kay "Deb" Rudder
SBOT No. 00797355
Ms. Crystal Mathis
SBOT No. 24078942
Assistant District Attorneys
Nueces County District Attorney's Office
Nueces County Courthouse
901 Leopard
Corpus Christi, TX 78401
(361) 888-0410
Respondent's Appellant Counsel
Mark Skurka
Ms. Deborah Kay "Deb" Rudder
SBOT No. 00797355
Nueces County District Attorney 105th Judicial District
901 Leopard, Room 206
Corpus Christi, Texas 78401
Respondent's Counsel
Lisa McMinn
State Prosecuting Attorney
P.O. Box 13046
209 W.14th St.
Austin, TX 78711
3
TABLE OF CONTENTS
Identity of Judge, Parties, Parties and Counsel......... 2-3
Table of Contents ............. .............. .............. ............ 4
Index of Authorities.................................................... 5
Statement Regarding Oral Argument . . . . . . . . . . . . . . . .. .. 6
Statement of the Case............................................... 7
Statement of Procedural History................................ 7
Grounds for Review............................................... 8
Argument...................................................... 8
A. Brief Summary of Facts with Record Citations . . . . 8
B. The Case Law Requiring Harm is Based on Rule 3.08. . . 1O
C. The District Attorney Violated Rule 3.07 ..... . 13
D. The Thirteenth Court of Appeals' Suggested
Process May Be Flawed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Prayer .................................................................................................. 18
Certificate of Service ............................................................................ 19
Certificate of Compliance .................................................................... 20
Appendix ............................................................................... 20
4
INDEX OF AUTHORITIES
House v. State, 947 S.W. 251, 252 (Tex. Crim. 1997) . . . . . . . .. 11, 12
Ocon v. State, 284 S.W.3d 880, 886 (Tex. Crim. App. 2009)... 16
Powers v. State, 165 S.W.3d 357, 359 (Tex. Crime. App. 2005) . . 11, 12
Smith v. Phillips, 455 U.S. 209, 215 (1982) . . . . . . . . . . . . . . . . . . . 16
TEX. DISCIPLINARY R. PROF'L CONDUCT 3.07... . . . . . . . . . . 13
TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08 . . . . . . . . . . .. 12
TEXAS RULE OF EVIDENCE 404(b)... . . . . . . . . . . . . . . . . . . . . . 14
5
STATEMENT REGARDING ORAL ARGUMENT
The effect of unethical prosecution on a criminal trial is an important
statewide issue that would benefit from oral argument. There are many
recent changes to laws based on unethical prosecution, such as the
Michael Morton Act, because lawmakers and courts are more aware than
ever of the significant impact that unethical prosecutors have on a criminal
case.
Here, the District Attorney for the 105th Judicial District provided
criminal background information and gave an interview to a major local
television station news reporter the day before the jury deliberated on
Petitioner's guilt. The news discussed Petitioner's specific criminal history
(numerous OWi's), and the District Attorney was quoted about the need to
send "these'' repeat DWI offenders to prison. The trial court refused
Petitioner's request to poll the jury, presumed that jurors followed its
instruction from the beginning of the trial (even though a couple were
employed with local media outlets), and jurors would not speak to attorneys
post-verdict before the motion for new trial. Accordingly, there was no
showing here of any actual harm at this stage, as required by the
intermediate court.
6
Petitioner is requesting briefing on the merits and oral argument to
address the issue of whether harm should be required or presumed under
these facts or whether Petitioner should have been allowed opportunity to
show harm through the questioning of the jurors.
STATEMENT OF THE CASE
Mr. Vollick was found guilty and sentenced to seventy years for
driving while intoxicated (no injuries) enhanced from a Class B
misdemeanor after a jury trial in the 117th Judicial District Court, Nueces
County, Texas, the Honorable Sandra Watts presiding.
This Petition challenges the process Petitioner and trial courts should
follow when the District Attorney violates ethical prohibitions on speaking to
the media about his criminal record the night before the jury deliberates on
guilt.
STATEMENT OF PROCEDURAL HISTORY
The Thirteenth Court of Appeals affirmed the judgment with opinion
(attached in Appendix) on July 23, 2015. The motion for rehearing was filed
on August 12, 2015, and the Thirteenth Court of Appeals denied it on
August 17, 2015.
7
GROUNDS FOR REVIEW
1. Whether harm should be required to be shown or presumed when a
prosecutor uses the local television news media to discuss a defendant's
specific criminal history the evening before the jury deliberates on guilty.
2. Whether Petitioner's constitutional right to a fair trial is violated when
the District Attorney uses the local television news media to discuss a
defendant's specific criminal history the evening before the jury deliberates
on guilt.
3. Whether a trial judge should poll the jury to determine whether they
heard any news reports regarding the case when a prosecutor uses the
local television news media to discuss a defendant's specific criminal
history while the case is being tried.
ARGUMENT
A. Brief Summary of Facts with Record Citations
The night before the jury deliberated on Petitioner's guilt, the local
ABC news affiliate and most watched news in the Coastal Bend area aired
a story about Petitioner's trial. See Defendant's Exhibit 1, video of the KIi i-
8
TV April 28, 2014 news report showing interview with District Attorney. See
also RRvS 5-7, Defendant's introduction of the video and motion for mistrial
on morning of April 29, 2014.
The broadcast that aired revealed that Petitioner had "been in court
on DWI charges at least seven times." See Exh. 1, from RRv8. They also
revealed that he had been up to prison twice for DWI and faced up to life in
prison as a "labeled" habitual felony offender. They further explained that
"Vollick's case, however, is one of many similar cases of drivers who have
been in and out of prison, or have been on probation multiple times, only to
re-offend again."
After showing Petitioner and his attorney with the bailiff escorting
Petitioner, 1 broadcasting his name and previous record, the news
broadcast then showed portions of its interview with Mark Skurka, the
Nueces County District Attorney, discussing Mr. Vollick's case in context of
other habitual felony DWI defendants. See Defense Exhibit 1, video of
news broadcast.
The District Attorney explained that time eventually runs out on
''these" habitual felony offenders and prison is all that is left. The District
1 Usually trial courts go to great lengths at the guilt stage of the proceedings to avoid letting the jury know
that the Defendant is in custody.
9
Attorney explained that for those like Mr. Vollick prison time is all that's left
mostly because of their criminal record. He also discussed that other
similarly situated defendants did an open plea and received 32 years and
35 years. He explained, after all, .. it's not their first time at the rodeo." Id.
Mr. Vollick's trial attorney asked the trial court to poll jurors to ask if
any saw the broadcast. Id. 40:13-20. He also reminded the trial court that
there were two members of the media on the jury, and that further made it
necessary to poll them. Id. 40:13-20. The trial court denied his request
1
because 'what I saw on video is not the basis for a mistrial." Id.
In sum, the news broadcast, with the help of the District Attorney,
discussed Mr. Vollick's seven prior DWI convictions and his habitual felony
offender status. See DX-1 video.
B. The Case Law Requiring Harm is Based on Rule 3.0B
The Thirteenth Court of Appeals rejected Petitioner's argument that
the District Attorney's statements to the media were prosecutorial
misconduct and violated Petitioner's fundamental right to a fair trial.2 See
2 See U.S. CONST. amend. VI (granting the right to an impartial jury trial in criminal
prosecutions); id. amend. VII (preserving ''the right of trial by jury" in civil cases). See
TEX. CONST. art. I, § 10 {promulgating that an accused in criminal prosecutions has the
right to a speedy public trial before an impartial jury); id. art. I,§ 15 (''The right of trial by
jury shall remain inviolate."); id. art. V, § 10 (reserving the right of a plaintiff or defendant
to a trial by jury in all district court trials).
10
Opinion 5-8 (a true and correct copy is attached in the Appendix as Exhibit
1). It disapproved of Petitioner's use of rules of professional conduct as
''tactical weapons" and required a showing of actual prejudice. Id. It
stated:
The Texas Court of Criminal Appeals has held that the
rules of professional conduct "should not be used as a
tactical weapon to ... obtain a reversal of a conviction for
alleged disciplinary rule violations by opposing counsel"
unless "the defendant can show the alleged disciplinary
rule violations by opposing counsel deprived him of a fair
trial or otherwise affected his substantial rights." House v.
State, 947 S.W.2d 251, 253 (Tex. Crim. App. 1997); see
Powers v. State, 165 S.W.3d 357, 359 (Tex. Crim. App.
2005). "[l]f a defendant cannot show actual prejudice from
an alleged disciplinary rule violation by the State, then he
will not be entitled to relief on appeal." House, 947 S.W.2d
at 253.
Id. at 7. The intermediate court cited two cases from this Honorable
Court that require a showing of actual prejudice to entitle Petitioner to
relief.
Nevertheless, the cases cited by the Thirteenth Court of Appeals
are not factually analogous, as they involve two completely different
rules. In House the Petitioner relied "on an alleged disciplinary rule
violation by the State as the sole basis for reversal of his conviction."
House v. State, 947 S.W. 251, 252 (Tex. Crim. 1997). House
11
complained that the trial court permitted two assistant district
attorneys to testify about House's character during the punishment
phase of the trial, in apparent violation of Texas Disciplinary Rule
3.08. Id. The main focus of Rule 3.08 is a recognition of the potential
harm to the offending lawyer's client when the lawyer assumes the
dual role of advocate-witness. When, as was the case in House, the
opposing party complains, the disciplinary rule "spoke" in terms of
actual prejudice and potential harm to the opposing party. In
summary, House involved a completely different rule of professional
conduct that refers to the actual prejudice and harm to the opposing
party when it was violated.
Powers involved the application of the same disciplinary rule as
in House, Rule 3.08 of the Texas Disciplinary Rule of Professional
Conduct, and a very similar complaint of a lawyer assuming a dual
role. Powers v. State, 165 S.W.3d 357, 359 (Tex. Crime. App. 2005).
Powers complained that the one of the arresting officers became an
attorney in the prosecutor's office after his arrest and assumed dual
roles as witness and prosecutor. This Honorable Court held that the
former officer did not serve dual roles and did not reach the harm
12
question. This had nothing to do with a District Attorney speaking to
the media about a defendant's criminal background during trial.
c. .
The District Attornev Violated Rule 3.07
The Texas Disciplinary Rules of Professional Conduct State prohibit
the State from talking about Petitioner's criminal record in the media. See
TEX. DISCIPLINARY R. PROF'L CONDUCT 3.07. In fact, publicly
speaking about a defendant's criminal record is clearly prohibited, as it is
one of the first items in the list of items specifically prohibited. The Rule
sets forth:
(a) In the course of representing a client, a lawyer
shall not make an extrajudicial statement that a
reasonable person would expect to be disseminated
by means of public communication if the lawyer
knows or reasonably should know that it will have a
substantial likelihood of materially prejudicing an
adjudicatory proceeding. A lawyer shall not counsel
or assist another person to make such a statement.
(b) A lawyer ordinarily will violate paragraph (a},
and the likelihood of a violation increases if the
adjudication is ongoing or imminent, by making
an extrajudicial statement of the type referred to in
that paragraph when the statement refers to:
(1) the character, credibility, reputation or criminal
record of a party, suspect in a criminal investigation
or witness; or the expected testimony of a party or
witness; ...
13
Id. (emphasis added). This rule sets forth that when a prosecutor speaks
to the media about the criminal record of a defendant it is ordinarily a
violation.
The timing of the District Attorney's decision to make extrajudicial
statements to the media about Petitioner's criminal history and habitual
felony offender status increases the likelihood of the violation. As the Rule
sets forth. "the likelihood of a violation increases if the adjudication is
ongoing or imminent." Id. Here the statements were published the night
before the jury deliberated on guilt. Here, the trial was ongoing, thus the
likelihood of violation increased, as the extrajudicial statements in the
media are more likely to materially prejudice the proceeding.
This is an especially egregious violation because it was an effective
way to potentially inform the jury of a criminal record that normally would
not be allowed to be presented to the jury because it is so prejudicial. See
generally Texas Rule of Evidence 404(b) (limiting evidence of other
crimes).3 The District Attorney's statements to the media regarding
Petitioner's criminal record effectively nullify the exclusionary rules of
3 It is well recognized that, despite the logical relevancy of such character evidence to prove conforming
conduct, such proof tends to inject into a trial "a dangerous baggage of prejudice." McCORMICK'S
HANDBOOK OF THE LAW OF EVIDENCE Section 1aa, at 445 (Edward w. Cleary et al. eds., 2d ed. 1972).
14
evidence to keep his criminal record from the jury during this stage of the
proceeding. It is well recognized, even by the trial court in this trial, of the
need to protect defendant's right to a fair trial by excluding evidence of his
prior felonies and his habitual felony offender status from the panel and the
jury during the guilt portion of the trial.
The assistant District Attorney showed her eagerness to get
Petitioner's criminal history to the jury at this stage. See RR2 at 18. She
wanted Petitioner to stipulate to their admission at this stage, without any
reason showing the need to introduce this to a jury at guilt. Id. The
implication is that by showing her eagerness at the voir dire stage of trial to
get the conviction in front of the jury, the District Attorney willfully violated
the rules of professional conduct to circumvent traditional rules of evidence.
Here, when they could not tell the jury about Petitioner's priors at the
guilt stage through proper evidentiary means, they used the media to
manipulate the process.
D. The Thirteenth Court of Appeals' Suggested Process is Flawed
The Thirteenth Court of Appeals would require a showing of actual
harm, such as a showing that jurors actually heard the news story.
15
However, on the other hand, the same court upheld the trial court's refusal
to allow questioning of the jurors. In other words, Petitioner must show
harm, but when he attempts to do so through the trial court, the Thirteenth
Court of Appeals supports the trial court's decision to not allow him to do so
by polling the jury.
As required in Ocon v. State, Petitioner's trial attorney asked the trial
court to poll jurors to ask if any saw the broadcast. RRv5 40:13-20. Ocon
v. State, 284 S.W.3d 880, 886 (Tex. Crim. App. 2009). He also reminded
the trial court that there were two members of the media on the jury, and
that further made it necessary to poll them. Id. 40:13-20. The trial court
denied his request. Id.
The United States Supreme Court has long held that the remedy for
allegations of juror partiality is a hearing where the defendant has the
opportunity to prove actual bias. Smith v. Phillips, 455 U.S. 209, 215 {1982).
The United States Supreme Court reasoned that due process means,
among other thing, a trial judge ever watchful to prevent prejudicial
occurrences and to determine the effect of such occurrences when they
happen. Id. at 217. Here, Appellant's due process rights were violated by
16
the trial court's failure to conduct an inquiry to determine the effects of the
improper statements to the media by the District Attorney.
The Thirteenth Court of Appeals reasoned that any questions to the
jury by the trial court would alert them to the existence and content of the
report. Opinion at 9. This is simply not accurate, as a trial court can
reasonably question jurors individually and outside the presence of other
jurors as to whether they watched the news that night. The inquiry could
continue to see if the juror heard about any news stories about this case. A
felony trial court in the State of Texas, as an experienced lawyer, generally
knows how to ask open-ended questions that would not reveal the contents
of the news story yet get to the heart of the actual harm issue. If the juror
responded negatively, the trial court can simply re-admonish the juror to not
read or watch the news until after the trial. On the other hand, this simple
process would get to the truth as to whether the District Attorney's unethical
actions prejudiced or harmed Petitioner.
Petitioner recognizes here that the actual bias here is unknown, as
the trial judge refused his request to poll jurors as to whether they saw or
heard about the news story. After trial, jurors refused to speak to his
17
attorney regarding any news stories that may have been heard, as they
were warned that defense attorneys would try to "mess with" the verdict.
Nevertheless, had the trial court questioned jurors properly without
revealing the content of the news story, the true harm would have been
revealed and an alternate used, if necessary, for the remainder of the trial.
PRAYER FOR RELIEF
Petitioner, Richard Vollick, respectfully requests that this Honorable
Court grant this Petition for Discretionary Review, order briefing on the
merits, and reverse the judgments of the courts below, alternatively
ordering the entry of a judgment of acquittal, ordering the dismissal of the
case, or remanding for further proceedings.
Respectfully submitted,
John S. Gilmore, Jr.
Attorney at Law
State Bar No. 07958500
622 S. Tancahua
Corpus Christi, TX 78401
Tel: (361) 882-4378
Christopher A. Dorsey
State Bar No. 24036493
606 N. Carancahua St., Ste 1001
Corpus Christi, TX 78476
Tel: (361) 8829991
Fax: (866) 9261982
18
By: Isl John Gilmore
JOHNS. GILMORE, JR.
Attorneys for Richard Vollick
CERTIFICATE OF SERVICE
This is to certify that on October 16, 2015 a true and correct copy of
the above and foregoing document was served on the District Attorney's
Office, Nueces County, 901 LEOPARD STREET, CORPUS CHRISTI,
TEXAS 78401, via e-filing.
Isl Christopher Dorsey
CHRISTOPHER A. DORSEY
19
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4, I certify this Petition
for Discretionary Review contains 3,440 total words. This is a computer-
generated document created in Pages, using 14-point typeface for all text,
except footnotes which are in 12-point typeface. In making this certificate
of compliance, I am relying on the word count provided by the software
"Pages" used to prepare the document.
WWW
Isl Christooher Dorsey
i
CHRISTOPHER A. DORSEY
APPENDIX (Including Copy of Opinion of the court of appeals)
20
NUMBER 13-14-00261-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RICHARD H. VOLLICK, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 117th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza and Longoria
Memorandum Opinion by Justice Garza
A jury convicted appellant, Richard H. Vollick, of his third driving while intoxicated
("DWI") offense, a third-degree felony. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2)
(West, Westlaw through Ch. 46, 2015 R.S.). The jury found that Vollick had been
previously convicted of two additional felonies and assessed punishment at seventy
years' imprisonment. See id. § 12.42(d) (West, Westlaw through Ch. 46, 2015 R.S.). By
..
four issues on appeal, Vollick contends that the trial court abused its discretion by
(1) denying his request for mistrial based on a television news report, (2) not allowing his
trial counsel to poll the jury under Texas Rule of Evidence 606(b), (3) not allowing his trial
counsel to question the venire panel on a twenty-five-year minimum sentence, and
(4) denying his motion for new trial based on allegedly false testimony. We affirm.
I. BACKGROUND
On January 16, 2014, Vollick was charged by way of indictment with felony DWI.
The indictment alleged that Vollick was convicted of DWI in May 2001 and again in
December 2011. The indictment also alleged that Vollick was previously convicted of two
other felonies, the first for burglary in December 1988 and the second for felony DWI in
April 2012.
Port Aransas police officers arrested Vollick on December 26, 2013 for DWI after
he ran over two signs exiting the Port Aransas ferry in Aransas Pass. Two eyewitnesses
testified that they saw Vollick strike one sign and then travel along the median until he hit
another sign. One of the eyewitnesses, a ferry deck hand, testified that Vollick's facial
expression and eyes were droopy, his speech was slurred, and his movements were
sluggish. In her opinion, based on these observations, Vollick was under the influence of
alcohol. Another eyewitness testified that Vollick was smoking a cigarette in the middle
of a gasoline spill and even attempted to throw the cigarette on the ground, and that,
based on this behavior, he believed Vollick was under the influence of alcohol.
During a pre-trial hearing, Vollick stipulated that the two prior DWI convictions and
the two prior felony convictions were true. Defense counsel requested that the venire
panel be advised that the minimum punishment was twenty-five years without instructing
2
them on Vollick's habitual felony offender status. See id. However, the trial court denied
the request and instead instructed the panel that the charged offense is a third-degree
felony which carries a range of punishment of two to ten years' confinement. See id.
§ 12.34(a) (West, Westlaw through Ch. 46, 2015 R.S.). The court also instructed the jury
that if it found one prior felony conviction, then the range of punishment is two to twenty
years, and if it found two prior felony convictions, then the range of punishment is twenty-
five years to life. See id. § 12.42.
Joseph Rivas, a Port Aransas police officer, testified that he found a twelve-ounce
beer bottle in the back of Vollick's car that was cold and still contained some liquid.
According to Rivas, he then asked Vollick if he had consumed any alcohol and Vollick
admitted to drinking four or five twelve-ounce beers. Rivas testified that Vollick's eyes
were bloodshot, his speech was slurred, he exhibited a disorganized thought process,
and he had trouble retrieving his driver's license. Vollick was swaying, failed to follow
directions, and failed to complete the walk-and-turn field sobriety test successfully. Rivas,
as well as another officer present at the scene, each testified that they believed Vollick
was intoxicated based on his movements, his appearance, his speech, and the way he
smelled.
Rivas also testified that he had specialized training in intoxication detection and in
standard field sobriety tests, including a certification in the horizontal gaze nystagmus
("HGN") test. According to the officer, Vollick exhibited all of the indicators of alcohol
consumption or some other central nervous system depressant. Rivas also testified that
Vollick's driver's license did not list any restrictions, and that Vollick was not wearing
glasses or contact lenses at the time of the accident. During opening statements, defense
3
counsel mentioned that Vollick suffered from many medical issues, including glaucoma,
and indicated that these conditions were relevant to his inability to pass the field sobriety
test. However, during cross-examination, Rivas testified that appellant never mentioned
that he suffered from glaucoma. Rivas further testified that neither his training manual
nor the National Highway Traffic Safety Administration manual listed glaucoma as one of
the conditions that could potentially cause HGN. The other officer on the scene, Brett
Boyer, testified that he was certified in standardized field sobriety testing, and that he was
also not aware that glaucoma could affect the HGN test.
The night before the final day of trial, a local television station, KIii, ran a story on
Vollick's case in which the reporter referred to the fact that Vollick had previously "been
in court on DWI charges at least seven times." The news broadcast also showed portions
of an interview with the Nueces County District Attorney, during which the District Attorney
discussed other habitual-offender felony DWI defendants. The morning following the
broadcast, defense counsel introduced the video and requested a mistrial for
prosecutorial misconduct. The trial court tabled the issue to revisit later in the trial, stating
that the "only reason that would be important is if indeed the jury heard those comments,
and I've instructed the jury not to listen to those comments . . . . It doesn't impact my
case, unless those jurors have been impacted." Later, after both parties rested, the trial
court reviewed a recording of the news report. At this point, defense counsel noted that
the jury pool contained a KIii employee and an editor of the Corpus Christi Caller Times,
and he requested permission to ask these two jurors if they had seen the news report.
Counsel later requested permission to "ask the jurors if they have seen the footage." The
trial denied the request and the motion for mistrial.
4
During closing argument. defense counsel focused on the fact that Vollick was not
wearing glasses at the time of the accident, and that he had mental and physical problems
that might have interfered with the field sobriety tests. The State noted that the defense
did not call any experts to the stand to connect Vollick's mental and physical issues to his
intoxication. The jury convicted Vollick offelony DWI and sentenced him to seventy years'
imprisonment in Texas Department of Criminal Justice.
Vollick then filed a motion for new trial and arrest of judgment. complaining that the
State had misled the jury about the non-alcohol-related causes of HGN and had led the
jury to believe that Vollick did not have any problems with his vision. At a hearing on the
motion for new trial, Vollick did not call any witnesses to explain his eye conditlons or the
side effects of his medication. The motion for new trial also alleged a violation of Vollick's
right to a fair trial in light of the Kill news report; however, no witnesses were called
regarding this issue at the new trial hearing. At that hearing, Vollick called only his trial
counsel to the stand to testify that he was unable to find anyone to testify at trial whether
glaucoma affected the HGN test. The trial court denied the motion for new trial, and this
appeal followed.
II. DISCUSSION
A. Motion for Mistrial
By his first issue, Vollick contends that the trial court abused its discretion by
denying his motion for mistrial based on the KIii television news report. In his argument
regarding this issue, Vollick emphasizes that the District Attorney violated the Texas
Disciplinary Rules of Professional Conduct by giving a statement to the media regarding
5
Vollick's case during trial. 1 He argues that the District Attorney's comments regarding his
criminal record violated his Sixth Amendment right to a fair trial and amounted to
prosecutorial misconduct, warranting a mistrial. The State counters by noting that the
District Attorney did not explicitly refer to Vollick by name in the news report, and it argues
that Vollick did not show that he suffered any harm as a result of the report.
A mistrial is an appropriate remedy only in "extreme circumstances" for a narrow
class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880,884 (Tex.
Crim. App. 2009). A mistrial halts trial proceedings when error is so prejudicial that
expenditure of further time and expense would be wasteful and futile. Id. Whether an
error requires a mistrial must be determined by the particular facts of the case. Id. A trial
court's denial of a mistrial is reviewed for an abuse of discretion. Id. We view the
evidence in the light most favorable to the trial court's ruling, considering only those
arguments before the court at the time of the ruling. Id. The ruling must be upheld if it
was within the zone of reasonable disagreement. Id.
Even assuming , but not deciding, that the District Attorney's comments constituted
a violation of ethical rules, we find no abuse of discretion by the trial court in denying
1 In particular, rule 3 .07 of the Texas Disciplinary Rules of Professional Conduct states as follows:
(a) In the course of representing a client, a lawyer shall not make an extrajudicial
statement that a reasonable person would expect to be disseminated by means of
public communication if the lawyer knows or reasonably should know that it will have
a substantial likelihood of materially prejudicing an adjudicatory proceeding . A lawyer
shall not counsel or assist another person to make such a statement.
(b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases
if the adjudication is ongoing or imminent, by making an extrajudicial statement of the
type referred to in that paragraph when the statement refers to:
(1) the character. credibility, reputation or criminal record of a party . ...
TEX. DISCIPLINARY R. PROF L CONDUCT 3 .07. reprinted in TEX. Gov'T CODE ANN. tit. 2, subtit. G, app. A (West.
1
Westlaw through Ch. 46 , 2015 R.S.) .
6
Vollick's motion for mistrial. The Texas Court of Criminal Appeals has held that the rules
of professional conduct "should not be used as a tactical weapon to ... obtain a reversal
of a conviction for alleged disciplinary rule violations by opposing counsel" unless "the
defendant can show the alleged disciplinary rule violations by opposing counsel deprived
him of a fair trial or otherwise affected his substantial rights." House v. State, 947 S.W.2d
251 , 253 (Tex. Crim. App. 1997); see Powers v. State, 165 S.W.3d 357,359 (Tex. Crim.
App. 2005). "{l]f a defendant cannot show actual prejudice from an alleged disciplinary
rule violation by the State, then he will not be entitled to relief on appeal." House, 947
S.W.2d at 253.
Here, prior to trial, the trial court instructed the jury as follows:
The media is an outside influence and we are trying to shelter you, isolate
you from all those influences so that you can render your verdict based upon
what happens in this courtroom. So , please do not read anything in the
print media, Caller.com, or actually the newspaper. And please do not stay
in the same room if a radio and/or the T.V. is discussing this case; use the
remote, close it, etc. Remember, you will very rarely see a member of the
media in the courtroom listening to the facts as you are hearing them. No
one has heard these facts. So the bottom line is everything they are stating
is all hearsay, based upon, you know, whatever they are drawing upon. But
the key thing is, is your verdict has to be based here and not be influenced
by the media, so that is the media instruction.
And, the guilt-innocence jury charge contained the following instruction:
With respect to the evidence admitted in this case concerning the
defendant's having been previously convicted two times of being intoxicated
while operating a motor vehicle in a public place, you are instructed that
such evidence cannot be considered by you in any manner as proving or
tending to prove that the defendant was intoxicated while driving or
operating a motor vehicle in a public place on or about DECEMBER 26,
2013.
The guilt-innocence charge also advised the jury that Vollick "has stipulated to having
been previously convicted two or more times of an offense relating to the operating of a
motor vehicle while intoxicated."
7
'We generally presume the jury follows the trial court's instructions in the manner
presented." Co/bum v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). Here, there
is no evidence in the record establishing that any juror disobeyed the trial court's explicit
instructions regarding media coverage or its limiting instruction regarding the two
stipulated prior DWI offenses. 2 Therefore, we cannot say that Vollick suffered any "actual
prejudice" as a result of the District Attorney's comments in the Kill news report, see
House, 947 S.W.2d at 253, nor can we say that the trial court abused its discretion in
denying a mistrial. Vollick's first issue is overruled.
B. Rule 606(b) Questions
By his second issue, Vollick contends that the trial court erred in disallowing his
trial counsel from asking jurors as to whether they had seen the televised news report.
Under Texas Rule of Evidence 606, a juror may not testify as a witness before the
other jurors at trial. TEX. R. Ev10. 606(a). During an inquiry as to the validity of a verdict
or indictment, however, a juror may testify "about whether an outside influence was
improperly brought to bear on any juror." TEX. R. Ev10. 606(b)(2)(A). In Mays v. State.
the Texas Court of Criminal Appeals applied an abuse-of-discretion standard in reviewing
the trial court's denial of defense counsel's request to poll the jury as to "whether they
had been exposed to or affected by media coverage of the case." 318 S.W.3d 368, 377
(Tex. Crim. App. 2010). That case involved an editorial article that had appeared in a
local newspaper the day before trial allegedly suggesting "that law enforcement was
watching what happened in this trial." Id. The Court held that the trial court did not abuse
2 We note that Vollick did not call any witnesses to testify regarding this issue at the motion for new
trial hearing.
8
its discretion in refusing counsel's request, noting that "[t)he trial court repeatedly
instructed the jury panel, the individual jurors selected, and the empaneled jury not to
read, watch, or listen to any media stories about the case." Id. at 378. The Court further
noted that, had the trial court granted counsel's request, it would have risked exposing
the jury to the existence and contents of the editorial for the first time. Id. at 377-78. The
Court reached an identical conclusion in Powell v. State, which involved a newspaper
article that allegedly inaccurately recounted testimony from a hearing on the admissibility
of DNA evidence. 898 S.W.2d 821, 828 (Tex. Crim. App. 1994). There, the Court held:
In the instant case, the trial court was faced with a decision: it could either
deny appellant's request for a jury poll concerning the contents of
the ... article, or it could grant appellant's request, poll the jury, and risk
exposing the jury to the existence of the article and its contents for the first
time. We believe the trial court decided correctly. By refusing to poll the
jury about the . . . article, and by reiterating its admonishments, the trial
court did its best. under the circumstances, to preserve the integrity of the
jury panel.
Id.
We believe that Mays and Powell are analogous to the instant case. As in those
cases, the trial court here advised the jurors that they were not to listen to or watch media
reports about the case. By refusing to poll the jury about the KIii news report, the trial
court avoided the risk of exposing the jury to the existence and content of the report for
the first time, thereby helping to "preserve the integrity" of the panel. See id. Following
Mays and Powell, we conclude that the trial court did not abuse its discretion in denying
defense counsel's request to poll the juryt and we overrule Vollick's second issue.
C. Voir Dire Questions Regarding Punishment Range
By his third issue, Vollick contends that the trial court abused its discretion by
refusing to allow his counsel to question the venire panel regarding the minimum
9
punishment applicable to his offense. Vollick contends that, due to his stipulations
regarding his prior offenses, the minimum punishment applicable in his case was set by
the habitual-felony-offender statute at twenty-five years' imprisonment, rather than two
years as provided by statute generally for a third-degree felony. See TEX. PENAL CooE
ANN. §§ 12.34(a), 12.42(d).
Both the State and defense are entitled to jurors who can consider
the entire range of punishment for the particular statutory offense-Le., from
the maximum to the minimum and all points in between. Jurors must be
able to consider both a situation in which the minimum penalty would be
appropriate and . . . a situation in which the maximum penalty would be
appropriate. Therefore, both sides may question the panel on the range of
punishment and may commit jurors to consider the entire range of
punishment for the statutory offense. A question committing a juror to
consider the minimum punishment is both proper and permissible.
Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010) (footnotes and internal
quotations omitted).
We find no error in the record related to Vollick's third issue. The trial court denied
defense counsel's request to instruct the jury that the minimum punishment upon
conviction was twenty-five years, but Vollick directs us to no point in the record where the
trial court disallowed him from asking the individual veniremembers whether they would
be willing to consider twenty-five years as an appropriate punishment in the case. In fact,
the prosecutor questioned the panel as to whether they believed twenty-five years was
too harsh a punishment for the offense at issue. Finally, as the State notes, Vollick could
have withdrawn his stipulation prior to sentencing and the trial court could have
conceivably set aside the stipulation. See Brito v. State, 154 S.W.3d 127, 129 (Tex. Crim.
App. 2005) ("A trial court has discretion to set aside a stipulation."). Therefore, it would
have been improper for the trial court to have instructed the venire panel that, because
10
Vollick stipulated to his prior offenses, the minimum punishment would be the prison term
set in the habitual-felony-offender statute. We overrule Vollick's third issue.
D. Motion for New Trial
Vollick argues by his fourth issue that the trial court abused its discretion by
denying his motion for new trial. He contends that he was entitled to a new trial because
"the State argued and allowed, without correction, [m]isleading evidence [r]egarding
[Vollick's) [v]ision, the (c)auses of HGN, and [h]is [m)edical (c)ondition." We review a
denial of a motion for new trial for abuse of discretion. Colyer v. State, 428 S.W.3d 117,
122 (Tex. Crim. App. 2014).
"The Due Process Cause of the Fourteenth Amendment can be violated when the
State uses false testimony to obtain a conviction, regardless of whether it does so
knowingly or unknowingly." Ex parle Chavez, 371 S.W.3d 200, 207-08 (Tex. Crim. App.
2012) (citing Ex parle Robbins, 360 S.W.3d 446, 459 (Tex. Crim. App. 2011 )); see U.S.
CONST. amend. XIV. Testimony need not be perjured to constitute a due process
violation; rather, "it is sufficient that the testimony was 'false."' Id. "The question is
whether the testimony, taken as a whole, gives the jury a false impression." Id.
Vollick argues that the State provided "misleading evidence regarding his vision,
knowing he truly had vision issues." He first notes that, even though there were medical
records in evidence establishing that he had been prescribed medication for glaucoma,
the State nevertheless elicited testimony from Rivas that Vollick's driver's license had no
listed restrictions such as required eyeglasses. Second, Vollick argues that the State
elicited testimony from Rivas and Boyer that glaucoma does not affect the HGN test, and
he asks us to take judicial notice that glaucoma may, in fact, bring about HGN. See
11
Schultz v. State, 664 A.2d 60, 77 (Md. Ct. Spec. App. 1995) (listing glaucoma among 38
"possible cause[s] of nystagmus"); State v. Witte, 836 P.2d 1110, 1120 (Kan. 1992)
(noting that "conditions such as ... glaucoma ... may result in gaze nystagmus").
First, with respect to the driver's license restrictions, Rivas never gave any false or
misleading testimony. It is undisputed that Vollick's driver's license contains, as Rivas
stated, no restrictions. Vollick argues that this testimony was "misleading" in light of
medical records that showed he was diagnosed with glaucoma, but we disagree. At most.
this was a conflict in the evidence which the jury, as finder of fact. was entitled to resolve.
See, e.g., Chambers v. State, 805 S.W.2d 459,461 (Tex. Crim. App. 1991).
Second, with respect to the testimony regarding the effect of glaucoma on the HGN
test, the State points out that, even if we were to take judicial notice that glaucoma may
cause nystagmus, that does not mean that glaucoma would necessarily cause a person
to fail the HGN test. The State directs us to People v. McKown, in which the Illinois
Supreme Court observed:
Nystagmus is "an involuntary, rapid, rhythmic movement of the eyeball,
which may be horizontal, vertical, rotatory, or mixed, Le., of two varieties."
The medical dictionary lists 45 types of nystagmus. For example, ataxic
nystagmus is unilateral and occurs in individuals with multiple sclerosis.
Congenital nystagmus "may be caused by or associated with optic atrophy,
coloboma, albinism, bilateral macular lesions, congenital cataract, severe
astigmatism, and glaucoma." Gaze nystagmus, which is at issue in the
present case, is "made apparent by looking to the right or to the left," as
opposed to fixation nystagmus, ''which appears only on gazing fixedly at an
object," or latent nystagmus, "which occurs only when one eye is covered."
924 N.E.2d 941, 945 (Ill. 2010) (citations to medical dictionaries omitted); see IDA G. Dox,
ET AL., ATIORNEY's ILLUSTRATED MEDICAL DICTIONARY N48 (West 1997) (defining
"nystagmus" as "[i]nvoluntary movements of the eyeballs in either a rotary, horizontal, or
vertical direction; most commonly it is a rhythmic jerking with a fast and slow component,
12
and is described by the direction of the quick component"). There are multiple forms of
nystagmus, and while there may be some support for the proposition that glaucoma may
bring about nystagmus, we are aware of no authority indicating that glaucoma may cause
the particular type of nystagmus that is a sign of intoxication in the HGN test. 3
Accordingly, we do not believe that the officers' testimony, in which they stated that they
were not aware that glaucoma could cause HGN, gave the jury a "false impression" so as
to violate Vollick's right to due process under the Fourteenth Amendment. See Ex parte
Chavez, 371 S.W.3d at 208.
Even if we were to determine that the officers' testimony regarding the potential of
glaucoma to cause HGN gave a false impression to the jury, Vollick has not demonstrated
that he suffered harm from the admission of the testimony. To constitute a due-process
violation, the record must show that the allegedly false testimony was material-that is,
the record must show '"a reasonable likelihood' that the false testimony affected the
judgment of the jury." Id. (citing Ex parte Ghahremani, 332 S.W.3d at 470, 478 (Tex.
Crim. App. 2011)). Here, the record contains overwhelming evidence that Vollick
operated a vehicle while intoxicated on December 26, 2013. Eyewitness testimony
established that Vollick hit two signs with his vehicle that night, that his facial expression
and eyes were "droopy," that his speech was slurred, and that he was smoking a cigarette
in the presence of spilled gasoline. Rivas testified that there was an open beer bottle in
J Vollick cites Mata v. State, in which a dissenting justice of the San Antonio Court of Appeals noted
that "[t]here is evidence that . . . glaucoma may bring about HGN." 13 S.W..3d 1, 15 (Tex. App.-San
Antonio 1999) (Cadena, Retired C.J., dissenting), rev'd on other grounds, 46 S.W.3d 902, 917 (Tex. Crim.
App. 2001) . The only authority cited in Mata for this proposition. however, is Emerson v. State , in which
the Texas Court of Criminal Appeals took judicial notice "of the reliability of both the theory underlying the
HGN test and its technique." 880 S.W.2d 759, 769 (Tex. Crim . App. 1994) (en bane). The Emerson Court
did not mention glaucoma or its potential effect on the HGN test. Therefore. we do not consider Mata to be
authority indicating that glaucoma may cause a person to fail the HGN test.
13
Vollick's car, that Vollick admitted to having several drinks, and that he failed the walk-
and-turn test. Both officers testified that, based on Vollick's behavior and odor, they
believed he was under the influence of alcohol. Vollick's glaucoma may or may not have
contributed to his failing the HGN test, but it does not explain any of these other
incriminating facts. Accordingly, even without the allegedly false testimony, the jury was
overwhelmingly likely to have found Vollick guilty of the charged offense. There is no
"reasonable likelihood" that the testimony affected the judgment of the jury. See id.
We conclude that the trial court did not abuse its discretion in denying the motion
for new trial. Vollick's fourth issue is overruled.
Ill. CONCLUSION
We affirm the trial court's judgment.
DORI CONTRERAS GARZA,
Justice
Do Not Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
23rd day of July, 2015.
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