Opinion issued May 2, 2019




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00223-CR
                           ———————————
               WILLARD BERNARD WELCH, JR., Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 212th District Court
                          Galveston County, Texas
                      Trial Court Case No. 16-CR-2827


                         MEMORANDUM OPINION

      A jury convicted appellant, Willard Bernard Welch, Jr., of the second-degree

felony offense of possession of between four and two hundred grams of a controlled
substance, methamphetamine.1 After finding the allegations in two enhancement

paragraphs true, the jury assessed appellant’s punishment at twenty-five years’

confinement.2 In his sole issue on appeal, appellant contends that the trial court

abused its discretion by allowing the State, during closing arguments, to make an

argument that improperly shifted the burden of proof to appellant.

      We affirm.

                                      Background

      On the evening of October 18, 2016, Galveston County Sheriff’s Office

Sergeant J. Davidson was on patrol in San Leon, Texas, when he encountered

appellant, who was driving a car that had a non-functioning brake light. Sergeant

Davidson turned on his emergency lights to conduct a traffic stop. Instead of

immediately pulling over, appellant’s vehicle “continued to roll” two or three houses

down the street before appellant pulled through a gate and into the driveway, “all the



1
      See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d) (providing that person
      commits second-degree felony if person possesses between four and two hundred
      grams of controlled substance listed in penalty group one); id. § 481.102(6) (listing
      methamphetamine as controlled substance in penalty group one).
2
      The State presented evidence that appellant had prior felony convictions for
      aggravated robbery and theft—the two prior offenses charged in the enhancement
      paragraphs—as well as prior felony convictions for evading arrest and attempting
      to take a weapon from a police officer and prior misdemeanor convictions for
      terroristic threat, assault, criminal trespass, and resisting arrest. If, on trial of a
      felony offense, it is shown that the defendant has two prior final felony convictions,
      on conviction for the charged offense the defendant shall be confined for twenty-
      five to ninety-nine years or for life. See TEX. PENAL CODE ANN. § 12.42(d).
                                             2
way up to the residence.” The driveway was on the left side of the house, and at least

three vehicles were parked in the driveway. Another car was parked in front of the

center of the house, and when appellant and Sergeant Davidson pulled into the

driveway, two people, including a man wearing red shorts, were standing near the

car in the center and then walked over to one of the cars on the left side of the house.

Appellant pulled over to the far right side of the house and parked. Sergeant

Davidson testified that although behavior such as appellant’s occurs “from time to

time,” it is not normal, and, in his experience, he “find[s] people are buying time to

hide things or gain distance on me to try to get out of the car faster or anything like

that.”

         Sergeant Davidson believed that appellant was preparing to flee the area, so

Davidson parked his vehicle at the gate and ran towards appellant’s vehicle.

Appellant opened the door to his vehicle, but he was not able to get out before

Sergeant Davidson reached the car. Appellant was “upset, belligerent, [and] angry,”

and he demanded to know why Sergeant Davidson had stopped his car. Sergeant

Davidson described appellant’s behavior as atypical, and, in response, he ordered

appellant out of the car. Once appellant was out of the vehicle, Davidson attempted

to place appellant in handcuffs due to appellant’s level of aggression. Although

Davidson was able to restrain appellant’s right hand, appellant was acting

“squirrely” and moving around, and Davidson could not immediately cuff


                                           3
appellant’s left hand. Sergeant Davidson eventually handcuffed appellant and

escorted him to Davidson’s patrol car. On the way to the patrol vehicle, an

unidentified person approached and spoke with appellant. Appellant asked this

person to retrieve his cigarettes from the house.

      After Sergeant Davidson secured appellant in the patrol car, Davidson

returned to appellant’s vehicle to perform an inventory search. When he returned,

Davidson “observed some baggies that were beneath [appellant’s] vehicle in view

on the ground by the vehicle where we were standing.” Sergeant Davidson testified

that he had not noticed these baggies when he initially approached appellant’s car.

He stated that, when he had first approached, he had been focused on appellant and

had not been looking for anything on the ground and “nothing [had] caught [his]

eye.” Sergeant Davidson retrieved his camera from his patrol car and took a picture

of the baggies on the ground.

      Sergeant Davidson testified that “[a] couple of the bags were in line with the

running board area [of appellant’s vehicle] and a couple appeared in the back that

were closer in line to the rear tire.” Davidson believed that the bags contained

narcotics, specifically, methamphetamine, and he took custody of the bags and

secured them in his patrol car. He acknowledged that he did not have gloves on when

he picked up these baggies and that this would affect the ability to recover

fingerprints from the baggies. Davidson also testified that the weather was “mildly


                                          4
humid” that night and that there was “a light light condensation on the ground around

the bags.” There was, however, no condensation on the bags themselves, and despite

the proximity of the bags to the tires of appellant’s vehicle, the bags were sitting on

top of the grass, “not crushed into it.” Sergeant Davidson thus believed that the bags

were “fresh” and that they belonged to appellant. When asked why he believed that,

Davidson stated, “The area where [the bags] were is the area where we were while

he was moving around before I walked away and brought him back to my car.”

      The trial court admitted a copy of the recording from Sergeant Davidson’s

dash-camera in his patrol car. On the recording, appellant asked a person to “get his

cigarettes out of the house.” When Sergeant Davidson searched appellant’s vehicle,

he discovered cigarettes in the center console of the car. Davidson stated that he

believed appellant was being deceptive when he made this request and that he

assumed that, by asking the person to get cigarettes, appellant “was trying to get [the

other person] to go to the car.” Davidson believed that appellant had wanted this

person to go to appellant’s car and “pick up what was on the ground.” Sergeant

Davidson testified that there were no other vehicles near appellant’s car and no

people in the immediate area around appellant’s car, although someone did at one

point come out of the house where appellant had stopped his car.




                                          5
      On cross-examination, defense counsel questioned Sergeant Davidson about

picking the baggies up with his bare hands.3 Counsel also questioned Davidson about

whether the baggies were underneath the vehicle, and Davidson stated, “[a] couple

were under the vehicle along . . . the running board area near the under side.”

Counsel showed Davidson one of the pictures Davidson had taken at the scene and

pointed out that it did not appear that the baggies were underneath the car. Davidson

testified, “They are clarified to being close to the under side of it.” Davidson also

agreed with counsel that, while he had testified that there was condensation on the

ground, no condensation on the ground or on the tire was visible in the scene

photographs. No contraband was recovered from inside appellant’s car.

      Defense counsel also questioned Sergeant Davidson about the contents of the

dashcam video and, during his questioning, used a photograph of the house counsel

had taken at a date after appellant’s arrest. Davidson agreed with the defense counsel

that there were several cars located to the left of the residence where appellant

stopped, as well as one “more centered” in front of the house, and appellant pulled

up to the right side of the house. The video shows two people standing around one

of the other vehicles, including a man wearing red shorts. These people later



3
      Defense counsel called Galveston County Sheriff’s Office Captain T. Keele, who
      testified that, in his opinion, the best practice is for officers to wear gloves when
      picking up and handling items that might have evidentiary value, but departmental
      policy does not mandate this.
                                            6
approached the house and then walked back to the other vehicle. Sergeant Davidson

testified that he did not investigate who these people were and that, instead, he had

been concerned with appellant and his vehicle. Sergeant Davidson also agreed with

defense counsel that the person appellant spoke to at the scene and asked to retrieve

his cigarettes, was a separate person from the two people standing around the other

vehicle and this person did not become involved in Davidson’s investigation.

Davidson testified that this other person did not go near appellant’s vehicle, so he

did not feel it was necessary to investigate this person any further.

      After other deputies arrived at the scene, Sergeant Davidson’s dashcam

continued recording, but no audio was available. One of the other deputies

approached the front porch of the house, where at least one person was standing.

Sergeant Davidson did not know which deputy approached the house, he did not

know if that deputy spoke to anyone on the porch of the house, and he did not

identify any of the people who were near the house.

      On re-direct examination, Sergeant Davidson agreed with the prosecutor that

this was a “throw down” case, in which the suspect attempted to get rid of the

narcotics that he possessed. When asked when suspects typically throw their drugs,

Davidson stated, “A lot of times when they are [going] to be placed in custody or if

there is a scuffle, they may try to turn around and get away and throw it or toss it.”

He testified that he has worked hundreds of drug cases and that he has never “walked


                                           7
up and found drugs lying around.” Davidson testified that he believed the contraband

he discovered belonged to appellant, and he stated his rationale for this belief:

“Based on just from the start. The attitude I received when I got him out of the car

to the inability to get him under [my] control, the movement, suddenly being calm

after we moved away from the vehicle that led me to believe they all came from

him.”

        Rachel Aubel, a forensic scientist for the Texas Department of Public Safety,

tested the substances recovered from near appellant’s vehicle. Aubel testified that

two baggies from the scene contained a total of 4.28 grams of methamphetamine and

that two orange tablets, also recovered from the scene, contained a total of 0.37

grams of methamphetamine.

        During closing argument, defense counsel heavily criticized Sergeant

Davidson’s investigation, stating that Davidson “did as little as possible on his job.”

Defense counsel stated:

        Then how many people are on the scene maybe three. We don’t know
        for sure. We can see three. I don’t know how many people may or may
        not have been in the house. I don’t agree that we can see that there is
        not another person on video because there are dark areas there. I do
        agree there was not a car there and that’s why [appellant] chose that
        particular parking spot because he thought he was parking,
        remember. . . . I can’t interview the person that [appellant] talked to
        that Sergeant Davidson testified was the possibly third person on scene
        and ask about their interchange because [Davidson] didn’t tell me who
        he is. He didn’t collect that information. He didn’t say hey, you’re on
        my scene. I need to know who you are all even just as a witness. He
        didn’t do it. I can’t ask the guy in the red shorts, I can’t ask him hey,
                                           8
      have you ever been arrested for methamphetamine. I don’t have that
      opportunity because Sergeant Davidson didn’t think it was important
      enough to ask him. When you watch the video, I want you to watch,
      they pull up two people disappear into the house. Later they appear and
      then go back into the house. How do I know that the man in the red
      shorts didn’t go in front of the house freaking out, run around the back
      of the house and throw the dope? How do I know? I don’t know. I don’t.
      I don’t even know who the man is. I can’t ask him. How do I know if
      two of the other people on the video don’t have prior convictions for
      possession of a methamphetamine? I can’t. I don’t know who they are.

      Counsel also argued:

      I want you to watch those people come and go [from the house], the at
      least three that we know of. I suggest to you there could’ve been more.
      I don’t know. I think I see on the video someone knocking on the door
      and talking to the people inside the residence but I don’t have the
      benefit of knowing whether they did or not because Davidson didn’t
      document anything, won’t let me know what happened with the
      deputies and no one is here to testify. So, I don’t know. Maybe there
      were five people inside the house. Maybe there was six. I have no idea.
      Is it reasonable for me to assert that one of the unidentified people on
      the scene went and tossed drugs, absolutely. I don’t know what they are
      doing. There is three people that could be freaking out. There is a cop
      out there. Got somebody pulled out and there is a car right there. Let
      me throw my stuff there before they come to me.

Counsel further argued that it was reasonable to believe the drugs were already

present on the ground when appellant pulled up to the house, noting that the baggies

were “nowhere near underneath [the] car.” He argued that Sergeant Davidson

arrested appellant “and Mr. Red Shorts comes over there [to the car] and tosses the

dope.”

      In response, the State argued that appellant, upon realizing that he could not

run from the car once he pulled into the driveway, “did the best thing he could” by
                                         9
tossing the drugs to the ground and trying to put at least some distance between

himself and the drugs.

      The State then made the following argument:

      Your common sense tells you if nobody was sitting over there [by
      where appellant parked], there were no cars and there were no people
      those drugs didn’t appear out of nowhere. Did someone walk out of the
      back door while there is a police officer on the scene, run around while
      the police officer is back at his car and runs and throws the drugs under
      the car, who believes that? You guys don’t believe that. I don’t believe
      that either. Neither did Sergeant Davidson. Now, yes, do I wish I had
      DNA and do I wish I had fingerprints, do I wish I knew who the people
      were, yes, I do. But that doesn’t mean I don’t know who that dope
      belonged to. And let me tell you something. [The address of the house,]
      these pictures [admitted during cross-examination of Sergeant
      Davidson] were taken by [defense counsel]. If [counsel] wanted to go
      out there and talk to them, he should have knocked on the door. They
      are there for him to talk to.

Defense counsel objected on the basis that the prosecutor’s statement “is shifting the

burden.” The trial court responded, “Proceed,” and the prosecutor ended his

argument by stating that Sergeant Davidson “did his job that night” and that the

drugs recovered from the scene belonged to appellant.

      Ultimately, the jury found appellant guilty of the offense of possession of

between four and two hundred grams of methamphetamine. After finding the

allegations in two enhancement paragraphs true, the jury assessed appellant’s

punishment at twenty-five years’ confinement. This appeal followed.




                                         10
                            Improper Jury Argument

      In his sole issue on appeal, appellant contends that the trial court erred by

allowing the State to make an improper jury argument. Specifically, appellant argues

that the prosecutor’s statement “If [defense counsel] wanted to go out there [to the

house where appellant was arrested] and talk to [the other unidentified people at the

scene], he should have knocked on the door” improperly shifted the burden of proof

to appellant to affirmatively produce evidence in his defense.

A.    Standard of Review

      We review a trial court’s ruling on an objection regarding improper jury

argument for an abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex.

Crim. App. 2004); Stahmann v. State, 548 S.W.3d 46, 68 (Tex. App.—Corpus

Christi 2018, pet. granted); Williams v. State, 417 S.W.3d 162, 174 (Tex. App.—

Houston [1st Dist.] 2013, pet. ref’d) (“A trial court has broad discretion to control

the scope of closing argument.”). Proper jury argument typically falls within one of

four general areas: (1) summation of the evidence; (2) reasonable deduction from

the evidence; (3) answer to argument of opposing counsel; and (4) plea for law

enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). “The

State is afforded wide latitude in its jury arguments and may draw all reasonable,

fair, and legitimate inferences from the evidence.” Williams, 417 S.W.3d at 174. It

is permissible for a prosecutor to “attack the defense’s argument.” Id. When


                                         11
examining challenges to a jury argument, we consider the remark in the context in

which it appears. Mims v. State, 434 S.W.3d 265, 275 (Tex. App.—Houston [1st

Dist.] 2014, no pet.).

B.    Preservation of Error

      As an initial matter, we address whether appellant preserved his complaint

concerning the State’s allegedly improper jury argument for appellate review.

      Generally, to preserve a complaint for appellate review, the party must make

the complaint to the trial court by timely request, objection, or motion that states the

grounds for the ruling sought with sufficient specificity to make the trial court aware

of the complaint, and the trial court must rule on the request, objection, or motion,

“either expressly or implicitly.” TEX. R. APP. P. 33.1(a). “The right to a trial

untainted by improper jury argument is forfeitable.” Hernandez v. State, 538 S.W.3d

619, 622 (Tex. Crim. App. 2018). To preserve a complaint about improper jury

argument for appellate review, the defendant must pursue his objection to an adverse

ruling from the trial court. Id.; Hinojosa v. State, 433 S.W.3d 742, 761 (Tex. App.—

San Antonio 2014, pet. ref’d). A trial court’s ruling on a matter need not be expressly

stated if its actions or other statements “otherwise unquestionably indicate a ruling.”

Montanez v. State, 195 S.W.3d 101, 104 (Tex. Crim. App. 2006) (quoting Rey v.

State, 897 S.W.2d 333, 336 (Tex. Crim. App. 1995)); Ramirez v. State, 815 S.W.2d




                                          12
636, 643 (Tex. Crim. App. 1991) (“[I]t must be clear from the record the trial judge

in fact overruled the defendant’s objection or otherwise error is waived.”).

      This Court has previously held that the trial court’s statement of “Let’s

proceed” in response to defense counsel’s objection to improper jury argument does

not constitute a ruling on the objection and preserves no error for appellate review.

Grayson v. State, 192 S.W.3d 790, 793 (Tex. App.—Houston [1st Dist.] 2006, no

pet.); see also Diamond v. State, 496 S.W.3d 124, 148 (Tex. App.—Houston [14th

Dist.] 2016, pet. ref’d) (holding that trial court’s statement of “All right. Ladies and

gentlemen, you’re going to be the judges of what was presented by the evidence and

the testimony” did not constitute ruling on defendant’s objection to improper jury

argument); Gonzalez v. State, 337 S.W.3d 473, 484 (Tex. App.—Houston [1st Dist.]

2011, pet. ref’d) (holding that trial court’s statement of “Ladies and gentleman, you

are the triers of fact. You are the judges. And . . . you have heard the evidence and

you will make your own decision” did not constitute ruling on objection to improper

jury argument); Murillo v. State, 839 S.W.2d 485, 492–93 (Tex. App.—El Paso

1992, no pet.) (stating, in context of objection to admission of extraneous offense

evidence during questioning of witness, that trial court’s response of “You may

proceed” to objection “was an attempt to ignore or avoid the objection and did not

constitute a conclusory or definite ruling adverse to the objection” and therefore no

error was preserved for appellate review).


                                          13
      Here, the following occurred during the State’s closing argument:

      The State:          Now, yes, do I wish I had DNA and do I wish I had
                          fingerprints, do I wish I knew who those people
                          were, yes, I do. But that doesn’t mean I don’t know
                          who that dope belonged to. And let me tell you
                          something. [The address of the house] those
                          pictures were taken by [defense counsel]. If he
                          wanted to go out there and talk to them, he should
                          have knocked on the door. They are there for him to
                          talk to.

      Defense counsel: I am going to object, Your Honor. That is shifting
                       the burden.

      The Court:          Proceed.

The trial court’s response, “Proceed,” does not constitute a ruling, either express or

implicit, on appellant’s objection. See Grayson, 192 S.W.3d at 793; see also

Montanez, 195 S.W.3d at 104 (providing that ruling need not be express as long as

trial court’s actions or other statements “otherwise unquestionably indicate a

ruling”). We therefore hold that because appellant did not receive an adverse ruling

on his objection to improper jury argument, he has failed to preserve this complaint

for appellate review. See TEX. R. APP. P. 33.1(a)(2); Hernandez, 538 S.W.3d at 622

(stating that, to preserve complaint concerning improper jury argument, defendant

must pursue objection to adverse ruling); Grayson, 192 S.W.3d at 793 (holding that

because trial court did not make ruling on improper jury argument objection when

court stated “Let’s proceed” in response to objection, defendant preserved nothing

for appellate review).
                                         14
C.    Analysis

      Even assuming that appellant properly preserved his complaint concerning

improper jury argument for appellate review, we conclude that the challenged

argument was permissible.

      Appellant complains that the State improperly shifted the burden of proof to

appellant during closing argument when the prosecutor stated, “If [defense counsel]

wanted to go out there and talk to them [the other people at the scene who were not

identified in the police investigation], he should have knocked on the door. They are

there for him to talk to.” Appellant argues that this statement “asked the jury to

require counsel for [appellant] to attempt to identify the persons present at the time

Appellant was arrested,” which is “the heart of shifting the burden from the State to

the defense.”

      The Court of Criminal Appeals has held that, during argument, the prosecutor

may permissibly comment on the defendant’s failure to produce witnesses and

evidence “so long as the remark does not fault the defendant for exercising his right

not to testify.” Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000);

Hinojosa, 433 S.W.3d at 762; Baines v. State, 401 S.W.3d 104, 108–10 (Tex. App.—

Houston [14th Dist.] 2011, no pet.) (holding that prosecutor’s statement that

defendant “has the same subpoena power” and could have called two witnesses to

testify in his defense was permissible comment about defendant’s failure to produce


                                         15
evidence in his favor, did not improperly shift burden to defense, and did not

improperly comment on defendant’s failure to testify); Caron v. State, 162 S.W.3d

614, 618 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (noting that State may

comment on defendant’s failure to present evidence in his favor and holding that

prosecutor’s statement that “[i]f there is something out there that is going to

exonerate you, you want to make it known” was proper and did not shift burden of

proof). We look at the challenged language from the jury’s standpoint and determine

whether the prosecutor’s comment “was manifestly intended or was of such a

character that the jury would necessarily and naturally take it as a comment on the

defendant’s failure to testify.” Hinojosa, 433 S.W.3d at 762 (quoting Bustamante v.

State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001)). If the prosecutor’s language can

be reasonably construed as referring to the defendant’s failure to produce testimony

or evidence from sources other than himself, reversal is not required. Id.

      Here, during closing argument, defense counsel repeatedly attacked Sergeant

Davidson’s investigation, taking issue with, among other things, the fact that

Sergeant Davidson did not investigate and identify the other people present at the

house where appellant was arrested, which meant that counsel had no way of

questioning these individuals himself or inquiring into the backgrounds of these

individuals, such as whether they had past convictions for methamphetamine

possession, which could have produced favorable evidence for appellant. The State


                                         16
acknowledged some of the shortcomings in Sergeant’s Davidson’s investigation, but

stated that the defense’s theory—that one of the other unidentified individuals at the

scene, after seeing Davidson handcuff appellant and place him in his patrol car, ran

over to appellant’s car and dropped the drugs nearby—was unreasonable. The State

then noted that defense counsel had visited the scene and taken pictures of the house,

which were admitted into evidence during cross-examination of Sergeant Davidson.

The prosecutor stated, “If [defense counsel] wanted to go out there and talk to them

[the unidentified people at the scene], he should have knocked on the door. They are

there for him to talk to.”

      This statement by the prosecutor does not remark on appellant’s failure to

testify at trial. Instead, the State argued that, despite Sergeant Davidson’s failure to

identify the other people at the scene, defense counsel could have conducted his own

investigation by going to the house to see if he could uncover a witness who could

provide favorable testimony for appellant. This statement can reasonably be

construed as a comment on the defense’s failure to produce evidence and testimony

arising from a source other than appellant himself, which constitutes permissible

jury argument. See Hinojosa, 433 S.W.3d at 762 (“Reversal is not required where

the language can be reasonably construed as referring to a defendant’s failure to

produce testimony or evidence from sources other than himself.”); Baines, 401

S.W.3d at 109 (holding that prosecutor’s comment that defendant could have called


                                          17
two witnesses, who defendant argued had actually committed charged offense, to

testify to support his defensive theory “went to the credibility of appellant’s defense

and did not shift the burden of proving the elements of the offense”). We conclude

that the prosecutor’s statement during argument did not impermissibly shift the

State’s burden to prove the elements of the charged offense of possession of

methamphetamine to the defense. We therefore hold that the trial court did not err

by allowing this statement.

      We overrule appellant’s sole issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Higley, and Landau.

Do not publish. TEX. R. APP. P. 47.2(b).




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