NO. 07-08-0257-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
PANEL D FEBRUARY 24, 2010

__________________________ SERENA BLACKENEY WAINWRIGHT, APPELLANT
V. THE STATE OF TEXAS, APPELLEE

__________________________ FROM THE 251 ST DISTRICT COURT OF RANDALL COUNTY; NO. 18437-C; HONORABLE ANA ESTEVEZ, JUDGE

__________________ _________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. MEMORANDUM OPINION Appellant Serena Blakeney Wa inright appeals from her jury-trial conviction for possession of cocaine in an amount less than one gram and the resulting punishment of twenty months in a state jail facility. Th rough one issue presenting an assertion of jury charge error, appellant contends she is entitled to a new trial. We disagree and affirm.
Background Appellant was charged by indictment with possession of cocaine in an amount of less than one gram.” 1 After her not-guilty plea, 2 the State presented its case through

1 See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2003 ). This is a state jail felony punish able by confinement in a state jail facility for any term of not more2 the testimony of police officers. That te stimony showed that du ring the early morning hours, a patrol officer driving behind appel lant’s car observed it approach an intersection controlled by a stop sign, with a whit e painted stop line. Appellant engaged her brakes and stopped. The testimony raised a fact issue of the reasonableness of the officer’s conclusion she failed to stop her v ehicle at the point r equired by statute.
The officer testified appellant’s car came to a stop when the “re ar tires are on top of the stop bar” and the fr ont of the car was “obv iously past the stop bar.” 3 The video from the officer’s in-car camera was admi tted and played for the jury. The video clearly shows the front of appellant’s Lincoln sedan was several f eet past the stop line when it came to a stop. It is less cl ear from the video that the rear tires were on top of the stop line when the car stopped, but the officer’s stated perception that such was the case is not unreasonable.
Appellant testified, explai ning that the whit e stop line is “on an angle” and she stopped when her car was “situated directly over the line.” She introduced several photographs of the intersection to illustrate her testimony. 4 Appellant maintained she stopped where she was “supposed to.”

than two years or less than 180 days and a fine not to exceed $10, 000. Tex. Penal Code Ann. § 12.35 (Vernon 2007).

2 This was the retrial of this cause. In the first trial, the jury was unable to reach a verdict.

3 The record is clear the officer wa s referring to the painted stop line.

4 The photographs show that the intersec ting streets are not at right angles, but that fact is not significant to our analysis on this record.3 The officer conducted a traffic stop of appe llant. During a check of appellant’s driver’s license and vehicle registrati on, the officer discovered her license was suspended. He placed her under arrest for t he offense. Officers searched appellant’s car and discovered, among other items, a baggy containing a white powdery substance that tested positive for cocaine. During her testimony, appellant d enied the cocaine and paraphernalia found in her car belonged to her.
At the close of the guilt/innocence ph ase, the jury was given a charge that included an instruction pursuant to article 38 .23(a) of the Code of Criminal Procedure. 5 The application sentence of the instruction told the jury: “Now, bearing in mind [sic] if you find from the evidence, t hat on the occasion in question [appellant] did properly stop her vehicle behind the white line in front of the stop sign of the intersection in question or if you have a reasonable doubt thereof, you will disregard” the officer’s testimony and not consider evidence resulting from the tra ffic stop. It is the inst ruction’s use of the phrase “behind the white line” that forms the basis for ap pellant’s complaint. The transportation code uses the phrase “at a . . . line.” 6

5 See Tex. Code Crim. Proc. A nn. art. 38.23 (Vernon 2005).

6 The instruction addressed the requirements of the tr affic laws only in its application sentence. The perti nent transportation code provision states: An operator required to stop by this sectio n shall stop before entering t he crosswalk on the near side of the intersection. In the absence of a crosswalk, the oper ator shall stop at a clearly marked stop line. In the absence of a stop li ne, the operator sha ll stop at the place nearest the intersecting roadway where the operator has a view of approaching traffic on the intersecting roadway. Tex. Transp. Code Ann. § 544.010(c) (Vernon 1999). The intersection here had no crosswalk.4 After hearing the evidence presented, t he jury found appellant guilty as charged in the indictment. The trial court later s entenced appellant to twent y months in a state jail facility and assessed a $500.00 fine. Appellant timely appealed.
Analysis
Appellant in this court argues she is entitled to a new trial because she was egregiously harmed by the article 38.23(a) jury instruction. Appellant contends that because failure to stop “behind” a stop line is not a violation of traffic laws, the instruction improperly permitted the jury to consider evidence discovered from the officer’s unlawful traffic stop. No objection to the instruction was raised at trial.
Appellant asserts further that the patrol car video shows appellant stopped her car on the stop line and based on the angle of that line, the jury could easily have concluded she could have stopped on t he line but behind the stop sign.
Applicable Law
An officer may conduct a lawful temporary detention when the officer has reasonable suspicion to believe the per son detained is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005). T hat determination is an objective one, based on the totality of the circumstances. A reasonable suspicion exists if a reasonable person in the positio n of the officer making t he stop, with the training and experience of the officer, and with the k nowledge possessed by the officer, could suspect that the vehicle or person stopped has been or is conne cted to criminal activity. United States v. Cortez, 449 U.S. 411, 421-22 , 101 S.Ct. 690, 66 L. Ed.2d 621 (1981); see Ford, 158 S.W.3d at 492 ("[r]easonabl e suspicion exists if the officer has specific,5 articulable facts that, when co mbined with rational inferenc es from those facts, would lead him to reasonably conclude that a particu lar person actually is, has been, or soon will be engaged in crim inal activity"); Garcia v. State , 43 S.W.3d 527, 530 (Tex.Crim.App. 2001) (reasonable suspicion does not require absolute certainty that an offense has been committed).

Thus we must bear in mind the issue bef ore us deals not with appellant’s guilt or innocence of a violation of the transportation code, but with the reasonableness of the officer’s suspicion she had violated it. See, e.g., Madden v. State , 242 S.W.3d 504, 508 n.7 (Tex.Crim.App. 2007) (noting factual iss ue in that case was not whether defendant was speeding but whether o fficer had reasonable belief def endant was speeding).
Appellant asserts the trial court erred in its jury c harge. Because the trial court was not made aware of the claimed error, we will reverse the judgment only if we find both that the court erred in its charge and appellant suffe red egregious harm from the

error. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh’g). Egregious harm is a difficult standard to prove and must be determined on a case by case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App. 2002). Jury-charge error is egregiously harmful if it affect s the very basis of the case, deprives the defendant of a valuable right, or vi tally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719 (Tex.Crim.App. 2007), citing Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996) (plurality opinion). In examining the record to determine whether jury-charge error is egregious, the reviewing court should consider the entirety of the jury charge itself, the evidence, includin g the contested issues and weight of the probative evidence, the argum ents of counsel, and any other relevant information6 revealed by the record of the trial as a whole. Stuhler, 218 S.W.3d at 719; Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App. 1993) . The harm suffered must be actual rather than theoretical. See, e.g., Curry v. State, 222 S.W.3d 745, 753 (Tex.App.–Waco 2007, pet. ref’d) (concluding defendant’s specul ation that one juror “might have found sudden passion” was “theoretical harm t hat we will not cr edit”).
Application of the Law to the Facts
We need not address the question whether t he trial court’s use of the phrase “behind the line” in it s article 38.23(a) inst ruction in this case was erroneous, and we express no opinion on it. 7 Even if it was erroneous, appe llant did not suffer egregious harm because of it.
Appellant’s contention is that the jury was misled to believe that the officer’s traffic stop was lawful unless they found s he stopped her car behind the white line. She argues the instruction should have said, “at the whit e line.” But considering the evidence the jury saw, and its weight, and cons idering the issue presented by the article 38.23(a) instruction, Stuhler, 218 S.W.3d at 719, we see vi rtually no chance the jury was led to a wrong conclusion, or that appellant was egregi ously harmed otherwise, by the substitution of the phrase “behind the whit e line.” Again, the ar ticle 38.23(a) issue here is, did the officer have articulable fact s leading to a reasonable suspicion appellant violated the transportation code? The officer testified he saw appell ant’s car come to a

7 Nor do we express any opinion on the correctness generally of the court’s article 38.23(a) instruction. We again note, however, the C ourt of Criminal Appeals’ recent emphasis in Madden that article 38.23(a) instruct ions in cases such as this properly must focus on the reasonableness of the officer’s suspicions based on the articulable facts. 242 S.W.3d at 516 n.31.7 stop with the front of the car “o bviously past” the line, with it s rear tires “on top of” the line. The video does not dispute the officer’s testimony but generally c onfirms it. In the face of that evidence, we see little difference in a stat ement the law r equired appellant to stop “at the line” with one it required her to stop “behind t he line.” According to the evidence, the officer reasonably could have concluded she did neither.

Consideration of the other factors of an egregious harm analysis do not lead to a different conclusion. Appellant argues t he “behind the line” ve rsus “at the line” distinction is like the charge error in Hutch, 922 S.W.2d at 169-70, which was found to be egregious. We disagree. The instruction in Hutch , which added the word “not,” had the effect of telling the jury the opposite of the law. 8 Hutch, 922 S.W.2d at 172. That is not the case here. While th e phrases “behind the line” an d “at the line” may not be synonymous, neither are they opposites.
Appellant also argues that the issue of t he legality of the st op was “obviously contested.” See Hutch, 922 S.W.2d at 173. We believe the record shows the focus of the evidence and argument wa s on appellant’s intent to possess cocaine and drug paraphernalia, not the validity of the stop. Appellant also contends the importance of the closing arguments was similar to that of Hutch. However, the Stat e correctly argued the law, stating appell ant pulled too far forward over t he line. The prosecutor did not argue appellant committed a violation by fa iling to stop behind the stop line.

8 The instruction in Hutch instructed the jury the stop was authorized if appellant was wearing a seatbelt. Howe ver, the opposite is true; such a stop would have been illegal. Hutch , 922 S.W.2d at 172.8 Lastly, appellant argues the case against her was circumstantial and the indications of guilt here ar e “nowhere near overwhelming. ” She asserts the cocaine was not in plain view, was not apparent to anyone without ta king apart the lighter in which it was housed, and no finge rprints were found. She a cknowledges the evidence of possession of paraphernalia was strong but asserts appell ant’s explanation for its presence was plausible even though the jury didn’ t believe it. Appellant also points to the patrol officer’s testimony appellant did not appear to be under the influence of drugs at the time of the stop and notes the first ju ry that heard this case could not reach a guilty verdict.

We find the record in this case rather clearly supports the validity of the officer’s traffic stop of appellant. After considering the entire jury charge, the evidence, the arguments of counsel, and the re cord as a whole, in t he context of the reasonable suspicion determination, we furt her find that the error, if any, in the court’s use of the words “behind the white line” instead of “at the white line” in it s article 38.23(a) instruction did not deny appella nt a fair and impartial trial or deprive her of a valuable right. Hutch, 922 S.W.2d at 171-72. 9 For the reasons given, we find appellant did not suffer actual egregious harm. We overru le appellant’s sole issue on appeal and affirm the trial court’s judgment.
James T. Campbell Justice Do not publish.

9 Appellant also cites Allen v. State , 253 S.W.3d 260, 268 (Tex.Crim.App. 2008), and appears to argue that the denial of the “val uable and unambiguous right of a legally correct article 38.23 instruct ion,” alone provides a sufficient demonstration of egregious harm to require reversal . We find no support in Allen for such a contention.