                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-07-00169-CR

CHARLIE WRAY NEWSOM,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 413th District Court
                             Johnson County, Texas
                             Trial Court No. F39751


                          MEMORANDUM OPINION


      Asserting four issues, Charlie Newsom appeals his conviction of possession of a

controlled substance (cocaine, greater than four but less than 200 grams) and a sentence

of eight years’ imprisonment and $10,000 fine. We will affirm.

      Around 2:00 a.m. on November 12, 2005, Burleson Police Officer Todd Shaw

pulled over Newsom upon observing several alleged traffic offenses and suspecting

Newsom of driving while intoxicated. Officer Shaw arrested Newsom for DWI and, in

a search incident to arrest, found around seven grams of cocaine in Newsom’s pocket.
                                   Motion to Suppress

       We begin with Newsom’s third issue, which complains that the trial court

abused its discretion in denying his motion to suppress. Newsom contends that no

probable cause to stop him existed because he did not commit the alleged traffic

violations and that therefore the fruits of the unlawful stop and subsequent search

should be suppressed.

               To suppress evidence on an alleged violation of Fourth
       Amendment rights, the defendant bears the initial burden of producing
       evidence that rebuts the presumption of proper police conduct. Ford v.
       State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). A defendant satisfies
       this burden by establishing that a search or seizure occurs without a
       warrant. Id. Once the defendant makes this showing, the burden shifts to
       the State, which must then establish that the search or seizure was
       conducted with a warrant or was reasonable. Id.

Haas v. State, 172 S.W.3d 42, 49 (Tex. App.—Waco 2005, pet. ref’d).

              A trial court’s denial of a motion to suppress is reviewed for abuse
       of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). . . .

             The trial court’s findings of fact are given “almost total deference,”
       and in the absence of explicit findings, the appellate court assumes the
       trial court made whatever appropriate implicit findings that are
       supported by the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.
       Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89-90 (Tex. Crim. App.
       1997). However, the application of the relevant law to the facts, including
       Fourth Amendment search and seizure law, is reviewed de novo.
       Carmouche, 10 S.W.3d at 327. Also, when the facts are undisputed and we
       are presented with a pure question of law, de novo review is proper. Oles,
       993 S.W.2d at 106. Thus, for example, when the issue to be determined on
       appeal is whether an officer had probable cause, “the trial judge is not in
       an appreciably better position than the reviewing court to make that
       determination.” Guzman, 955 S.W.2d at 87. Therefore, although due
       weight should be given to the inferences drawn by trial judges and law
       enforcement officers, determinations of matters such as reasonable
       suspicion and probable cause should be reviewed de novo on appeal. Id.
       (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134

Newsom v. State                                                                          Page 2
       L.Ed.2d 911 (1996)).

Davis v. State, 74 S.W.3d 90, 94-95 (Tex. App.—Waco 2002, no pet.).

              A law enforcement officer may lawfully stop a motorist who
       commits a traffic violation. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim.
       App. 1992). In general, the decision to stop an automobile is reasonable
       when an officer has probable cause to believe that a traffic violation has
       occurred. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000); Wolf
       v. State, 137 S.W.3d 797, 801 (Tex. App.—Waco 2004, no pet.); see also
       Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d
       89 (1996).

Haas, 175 S.W.3d at 49-50.

       Officer Shaw testified that he observed Newsom’s vehicle, a 1930 two-door Ford

coupe, stopped past the solid white “stop” line at an intersection in Burleson with a red

light; he said the entire vehicle was beyond the line. Shaw activated his dashboard

camera, and the videotape shows Newsom’s vehicle entirely beyond the stop line. At

that time, Shaw believed he had probable cause to stop Newsom for a traffic violation.

       Shaw followed Newsom and said that as Newsom entered onto Interstate 35, he

did not use his turn signal, and that when on the highway, he observed Newsom’s

vehicle weave inside its lane of traffic and touch or go over the solid white line (the

“fogline”) bordering the improved shoulder.

       The Transportation Code provides:

       (d) An operator of a vehicle facing only a steady red signal shall stop at a clearly
       marked stop line. In the absence of a stop line, the operator shall stop before
       entering the crosswalk on the near side of the intersection. A vehicle that
       is not turning shall remain standing until an indication to proceed is
       shown. After stopping, standing until the intersection may be entered
       safely, and yielding right-of-way to pedestrians lawfully in an adjacent
       crosswalk and other traffic lawfully using the intersection, the operator
       may:

Newsom v. State                                                                               Page 3
                  (1) turn right; or
                  (2) turn left, if the intersecting streets are both one-way streets and
                  a left turn is permissible.

TEX. TRANSP. CODE ANN. § 544.007(d) (Vernon Supp. 2008) (emphasis added).1

         Newsom argues that Shaw lacked probable cause to believe that Newsom had

violated subsection 544.007(d) because Shaw did not see Newsom’s vehicle cross the

stop line and he did not testify that the light was red when Newsom’s vehicle crossed

the stop line and then stopped. The State responds that this subsection does not require

the officer to have observed the operator of the vehicle crossing the stop line and that

the statute does not allow an operator to edge forward past the stop line, after stopping

before it, while the signal is still red. The State also points out that Newsom presented

no evidence at the suppression hearing that he had stopped before the stop line and

then edged forward and that it was not required to rebut Newsom’s counsel’s

speculative argument that Newsom might have done so.

         We agree with the State that it made a prima facie showing that Newsom

violated subsection 544.007(d) and that Shaw thus had probable cause to stop and

detain Newsom on that violation alone. Accordingly, the trial court did not abuse its

discretion in denying Newsom’s motion to suppress. We overrule Newsom’s third

issue.

                                            Jury Argument

         In his first two issues, Newsom complains that the trial court abused its

discretion in failing to grant a mistrial that Newsom’s counsel twice requested during

1The version of this statute in effect on the date in question is the same. See Act of May 1, 1995, 74th Leg.,
R.S., ch. 165, § 1, 1997 Tex. Gen. Laws 1025, 1619.

Newsom v. State                                                                                        Page 4
the State’s closing argument in the guilt-innocence phase. Jury argument is limited to:

(1) summations of the evidence; (2) reasonable deductions from the evidence; (3)

answers to argument of opposing counsel; and (4) a plea for law enforcement. Guidry v.

State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999).

       Newsom’s first issue complains of the following jury argument:

       [PROSECUTOR]: . . . This is our road map. This is how we get here.
       He’s guilty of this offense here. And there’s really no explanation as to
       why he’s carrying 7.73 grams of cocaine. The officer says he’s got it in his
       pocket. There’s been no explanation as to why he’s got it.

       [DEFENSE COUNSEL]: Objection. Going to object to Counsel making
       a[n] improper inference in front of the jury with respect to these
       comments.

       THE COURT:           Okay. Please rephrase your argument.

       [DEFENSE COUNSEL]: We would ask the Court to instruct the Jury to
       disregard those comments.

       THE COURT:           Please disregard any comments.

       [DEFENSE COUNSEL]:          And we further feel compelled to move for a
       mistrial, Your Honor.

       THE COURT:           Denied.

       Newsom complains that the prosecutor’s statements about there being no

explanation why Newsom possessed the cocaine was an impermissible comment on

Newsom’s failure to testify and violated Newsom’s Fifth Amendment right to not

incriminate himself. The State responds first by contending that Newsom failed to

preserve his complaint for appellate review, claiming that his objection lacked sufficient

specificity to apprise the trial court of the nature of the objection. We disagree. Without


Newsom v. State                                                                       Page 5
highlighting the very inference that Newsom was complaining about, Newsom was

able to make the trial court aware of his complaint because the specific ground was

apparent from the context.     See TEX. R. APP. P. 33(a)(1)(A).    Also, the trial court’s

response clearly indicated that it understood the nature of Newsom’s objection.

       The State contends that the prosecutor’s comment about there being “no

explanation” was not an impermissible comment on the defendant’s failure to testify.

“A comment on an accused’s failure to testify violates the accused’s state and federal

constitutional privileges against self-incrimination.” Smith v. State, 65 S.W.3d 332, 339

(Tex. App.—Waco 2001, no pet.).

       It is well settled that a prosecutor’s comment amounts to a comment on a
       defendant’s failure to testify only if the prosecutor manifestly intends the
       comment to be, or the comment is of such character that a typical jury
       would naturally and necessarily take it to be, a comment on the
       defendant’s failure to testify. United States v. Jefferson, 258 F.3d 405, 414
       (5th Cir. 2001); Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App.
       2001). It is not sufficient that the comment might be construed as an
       implied or indirect allusion to the defendant’s failure to testify.
       Bustamante, 48 S.W.3d at 765.

Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004).

       The State contends that the “no explanation” comment was permissible because

an explanation by Newsom of why he had the cocaine was in the record. In the

videotaped stop, Officer Shaw found the cocaine on Newsom in the search incident to

his arrest for DWI, and the officer asked Newsome why he had cocaine in his pocket.

Newsom responded that a friend had given it to him.              We agree that the “no

explanation” reference was a proper comment on or a reasonable deduction from

Newsom’s recorded statement and was not an impermissible comment on Newsom’s

Newsom v. State                                                                        Page 6
failure to testify. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004); Ortiz v.

State, 144 S.W.3d 225, 235 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).

         The State is also correct that the “no explanation” comment was a proper

comment on Newsom’s failure to present evidence, other than his own testimony, in his

favor.    “It is well settled that the prosecutor, in argument, may comment on the

defendant’s failure to call certain witnesses.” Bible v. State, 162 S.W.3d 234, 249 (Tex.

Crim. App. 2005) (quoting O’Bryan v. State, 591 S.W.2d 464, 479 (Tex. Crim. App. 1979)).

“[P]rosecutorial comment on the absence of evidence is proper so long as ‘the language

can reasonably be construed to refer to [the] appellant’s failure to produce evidence

other than his own testimony.’” Id. (quoting Patrick v. State, 906 S.W.2d 481, 491 (Tex.

Crim. App. 1995)).     We must analyze the facts and circumstances of each case to

determine whether the language used was of such a character. Montoya v. State, 744

S.W.2d 15, 35 (Tex. Crim. App. 1984). Here, Newsom could have called as a witness his

friend who allegedly gave the cocaine to Newsom to provide a possibly exculpatory

explanation. Therefore, the prosecutor’s comments were not improper. See Holliman v.

State, 879 S.W.2d 85, 89 (Tex. App.—Houston [14th Dist.] 1994, no pet.); Nielson v. State,

836 S.W.2d 245, 248-49 (Tex. App.—Texarkana 1992, pet. ref’d).

         Because the “no explanation” comments were not impermissible comments on

Newsom’s failure to testify, the trial court did not err in denying Newsom’s request for

a mistrial.

         Newsom also complains in his first issue of the following rebuttal argument

made in the context of the prosecutor’s summary of the initial traffic violation seen by

Newsom v. State                                                                        Page 7
the police officer:

       [PROSECUTOR]: . . . And you know, there’s this - - throwing out there
       this possibility. Maybe his - - what if his car died and did you see that?
       Did you hear that? Is there evidence of that? No.

       [DEFENSE COUNSEL]: Your Honor, I’m going to object for counsel
       inserting improper matters before the Jury.2

       THE COURT:              Overruled.

       Newsom’s counsel had argued the following:

       [DEFENSE COUNSEL]: If he stopped behind the line, that was a legal
       stop. Now, to go beyond the line if the light was green and he had car
       trouble or for some reason had to come to a stop, that doesn’t make it
       illegal.
       ...
       If he stopped behind it, and if it was - - and then had car trouble or it was
       green when he went forward, that’s not an offense.

       We review a trial court’s ruling on objections to argument for abuse of discretion.

See Goff v. State, 931 S.W.2d 537, 548 (Tex. Crim. App. 1996) (plurality op.). We hold that

the trial court did not abuse its discretion in overruling Newsom’s objection because the

prosecutor’s argument was in response to the defense’s car-trouble argument that was

not based on any evidence in the record.

       We overrule Newsom’s first issue.

       Newsom’s second issue complains about the following comment:

       [PROSECUTOR]: . . . What do you do? If you are so unbelievably
       guilty, what do you do? Poke holes in everything else. You’ve got to
       watch for the slight [sic] of hand, because that’s been happening over and
       over and over again.



2For the same reason as above, Newsom made the trial court aware of his complaint because the specific
ground was apparent from the context. Thus, his complaint is preserved for appellate review.

Newsom v. State                                                                                 Page 8
       [DEFENSE COUNSEL]: Your Honor, I’m sorry to interrupt, but I must
       object to counsel striking at Defendant over the shoulders of his counsel in
       the conduct of the trial, and therefore we object to that line of argument.

       THE COURT:          Sustained.

       [DEFENSE COUNSEL]:         We ask the Court to ask Jury to disregard it.

       THE COURT:          Disregard the comment slight [sic] of hand.

       [DEFENSE COUNSEL]: And for - - because of the harm, Your Honor,
       we would respectfully move the Court to grant a mistrial.

       THE COURT:          Denied.

       Newsom’s second issue contends that the State’s argument struck at him over

the shoulders of his counsel. See Mosley v. State, 983 S.W.2d 249, 258-60 (Tex. Crim.

App. 1998); Bray v. State, 478 S.W.2d 89, 89-90 (Tex. Crim. App. 1972). Improperly

striking over the defense attorney’s shoulders occurs when the prosecutor’s argument

refers to defense counsel personally and when the argument explicitly impugns defense

counsel’s character. Guy v. State, 160 S.W.3d 606, 617 (Tex. App.—Fort Worth 2005, pet.

ref’d); see Mosley, 983 S.W.2d at 258-60.     “Generally, a remark that strikes at the

defendant through his counsel is impermissible because such attacks only inflame the

minds of the jury to the defendant’s detriment.” Guy, 160 S.W.3d at 616. We assume

without deciding that the argument was improper and advance to whether the trial

court abused its discretion in denying the mistrial request. See Mosley, 983 S.W.2d at

259.

       The denial of a motion for mistrial, which is appropriate for “highly prejudicial

and incurable errors,” is reviewed under an abuse-of-discretion standard. See Simpson


Newsom v. State                                                                       Page 9
v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003) (quoting Wood v. State, 18 S.W.3d

642, 648 (Tex. Crim. App. 2000)); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).

       [T]he question of whether a mistrial should have been granted involves
       most, if not all, of the same considerations that attend a harm analysis. A
       mistrial is the trial court’s remedy for improper conduct that is “so
       prejudicial that expenditure of further time and expense would be
       wasteful and futile.” In effect, the trial court conducts an appellate
       function: determining whether improper conduct is so harmful that the
       case must be redone. Of course, the harm analysis is conducted in light of
       the trial court’s curative instruction. Only in extreme circumstances,
       where the prejudice is incurable, will a mistrial be required.

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Thus, the appropriate test

for evaluating whether the trial court abused its discretion in overruling a motion for

mistrial is a tailored version of the test originally set out in Mosley. See id. “[T]he Mosley

factors should be used to evaluate whether the trial court abused its discretion in

denying a mistrial for improper argument . . . .” Id. Those factors are: (1) the prejudicial

effect, (2) curative measures, and (3) the certainty of conviction absent the misconduct.

Id.; see Mosley, 983 S.W.2d at 259.

       Applying the Mosley factors, we conclude that any prejudicial impact of the

prosecutor’s sleight-of-hand comment was not so severe that it was not cured by the

trial court’s immediate instruction to disregard the comment. Further, the jury was

presented with strong evidence of guilt. Under these circumstances, we cannot say that

the trial court erred in failing to grant a mistrial. Newsom’s second issue is overruled.

                                         Unanimity

       Newsom’s fourth issue complains that the charge permitted a non-unanimous

verdict because it allowed the jury to find that Officer Shaw’s search following the

Newsom v. State                                                                        Page 10
traffic stop was a legal search, even if the jury did not agree on the three separate

alleged traffic violations that were the basis of the traffic stop. See TEX. CODE CRIM.

PROC. ANN. art. 38.23(a) (Vernon 2005) (“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 in violation of the provisions of this Article, then and in

such event, the jury shall disregard any such evidence so obtained.”).

       When reviewing a jury charge, we first examine the charge to determine if error

exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The jury was charged

as follows:

       Now, bearing in mind, the foregoing instruction, if you find from the
       evidence beyond a reasonable doubt that Officer Todd Shaw had a
       reasonable suspicion based on articulable facts to temporarily detain the
       defendant, Charlie Wray Newsom, then such detention would be legal
       and you will continue your deliberation. If you do not so find and believe
       beyond a reasonable doubt, or if you have a reasonable doubt thereof,
       then such detention would be illegal and in such event the jury will
       disregard the evidence relative to the detention of the defendant and you
       will not consider such evidence for any purpose whatsoever and you will
       return a verdict of not guilty.3

       A jury verdict in a criminal case must be unanimous. TEX. CONST. art. V, § 13;

TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (Vernon Supp. 2008). A unanimous jury

verdict “ensures that the jury agrees on the factual elements underlying an offense,”

requiring “more than mere agreement on a violation of a statute.” Francis v. State, 36

S.W.3d 121, 125 (Tex. Crim. App. 2000); see Ngo, 175 S.W.3d at 744 (“When the State

charges different criminal acts, regardless of whether those acts constitute violations of


3Cf. ELIZABETH BERRY & GEORGE GALLAGHER, 1 TEXAS CRIMINAL JURY CHARGES § 3.1000, 3.1010, 3.1080, at
3-35 to 3-38 (2008).

Newsom v. State                                                                             Page 11
the same or different statutory provisions, the jury must be instructed that it cannot

return a guilty verdict unless it unanimously agrees upon the commission of any one of

these criminal acts.”); see also Landrian v. State, 268 S.W.3d 532, 536 (Tex. Crim. App.

2008) (“the jury must be unanimous in finding that the defendant committed a specific

statutory crime”).

        Newsom cites no authority for his proposition that juror unanimity is required

on the legality of a defendant’s detention, which the State correctly notes is not an

element of the offense Newsom was charged with—the legality of Newsom’s detention

relates only to the admissibility of evidence. We thus find no error in the charge and

overrule Newsom’s fourth issue.4

        Having overruled all of Newsom’s issues, we affirm the trial court’s judgment.



                                                         REX D. DAVIS
                                                         Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed April 22, 2009
Do not publish
[CR25]




4We also agree with the State’s contention that the above instruction was not required because Newsom
did not raise a fact issue on the detention; mere cross-examination and argument that the circumstances
did not authorize the detention do not create a fact issue material to the admissibility of the challenged
evidence. See Madden v. State, 242 S.W.3d 504, 510-17 (Tex. Crim. App. 2007); Howard v. State, 888 S.W.2d
166, 174 (Tex. App.—Waco 1994, pet. ref’d).

Newsom v. State                                                                                   Page 12
