1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00328-CR

__________________

THOMAS NOLAN WHITE, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 221st District Court

Montgomery County, Texas

Trial Cause No. 19-04-05780-CR

__________________________________________________________________

OPINION

A jury convicted appellant Thomas Nolan White of fraudulently possessing

items of identifying information and assessed punishment at ten years of 

confinement.

1 See Tex. Penal Code Ann. § 32.51(c)(1). In his sole appellate issue, 

White argues that the trial court reversibly erred by failing to sua sponte instruct the 

1

White’s punishment range was enhanced to the punishment range for a 

second-degree felony because he had two prior felony convictions.
2

jury that it could disregard any evidence it concluded police had illegally obtained.

2

For the reasons explained herein, we affirm the trial court’s judgment.

BACKGROUND

Before trial, White filed motions to suppress the stop of his vehicle, as well as 

the search of his vehicle after a narcotics dog allegedly alerted. White asserted, 

among other things, that although police officers stated that the narcotics dog alerted 

to the vehicle, “you do not see the dog alert on the vehicle in the video.” White 

argued that officers lacked probable cause to stop his vehicle and search it. The trial 

judge did not rule on the motions before trial. 

At trial, Sergeant Jesse Bullinger of the Montgomery County Precinct Four 

Constable’s Office testified that he has been a certified K-9 handler for 

approximately six years. Bullinger explained that on the evening in question, he was

working his usual patrol shift with a deputy. According to Bullinger, he was assisting 

with an unrelated traffic stop when he saw a truck coming down the road, and the 

truck’s lights “appeared to be strange from a distance.” As the vehicle drew closer, 

Bullinger observed that the vehicle’s headlights were not working, and two 

flashlights were strapped to the hood to serve as makeshift headlights. Bullinger 

2

White did not raise appellate issues regarding the denial of his motions to 

suppress or the existence of probable cause. Rather, he only complains that article 

38.23 obligated the trial court to sua sponte instruct the jury that it was free to 

disregard evidence from an illegal search. See Tex. Code Crim. Proc. Ann. art. 38.23.
3

testified that he initiated a traffic stop because the driver “was operating a vehicle 

with no headlights in the middle of the night[,]” in violation of the traffic laws. 

According to Bullinger, when he stopped the vehicle, White acted nervous 

and defensive, and White “started kind of reaching around inside the vehicle[.]”

Bullinger explained that he eventually asked White for consent to search the vehicle 

because of White’s nervous behavior. Bullinger testified that when he asked White 

if he minded if Bullinger searched the vehicle, White said “no,” and Bullinger 

explained that he engaged in a back and forth with White to clarify whether White 

was consenting or refusing. When he was unable to obtain a clear response from 

White, Bullinger deployed his narcotics dog, Harley Quinn. Bullinger explained that 

when a narcotics dog alerts, “you can kind of see some changes in their behavior, 

whether it is their tail straightening or wagging more. Or Harley likes to put her ears 

back sometimes. There [are] lots of different signs. . . . And when they give a final 

passive positive alert, [it] is a sit.” According to Bullinger, if the dog smells the odor 

of narcotics, “she will stop and then work the odor.” Bullinger testified that the dog 

will “finalize the alert with a sit.” 

When asked what “area of the car” the dog alerted on, Bullinger testified, 

“[the] driver’s side door[,]” and Bullinger believed he had probable cause to search 

White’s vehicle. A video of the stop, including the deployment of the dog, was 

admitted into evidence without objection and published to the jury. While the video 
4

was being published to the jury, Bullinger explained that the dog froze, and then she

sat. According to Bullinger, the dog did “a passive sit.” At the bench, the prosecutor 

mentioned that defense counsel had filed motions to suppress both the stop and the 

dog sniff, and he advised the trial judge that “[t]he next phase of the testimony is 

going to be introducing evidence that was gotten from the search of the vehicle.”

Outside the presence of the jury, the trial court conducted a hearing on the 

motions to suppress. Defense counsel argued that he could not see the dog sitting 

down on the video. According to defense counsel, the dog “might sit down at the 

very, very front of the car, but you can’t even see that.” The prosecutor responded 

that the video does show the dog sweep the vehicle and stop on her own without the 

handler, and the other deputy who was with Bullinger also said that the dog sat. The 

trial judge stated, “at one point it is obvious that the dog is away from the handler 

and is in front of the vehicle.” The prosecutor stated that “you have a credible officer 

on the witness stand who is swearing under oath that the dog alerted[,]” and he 

contended that “even absent a video, just based on Sergeant Bullinger’s testimony 

alone, the Court would find that the dog actually alerted to the presence of narcotics.” 

The prosecutor argued that the dog’s alert provided probable cause to search White’s 

vehicle. The trial court orally denied White’s motions to suppress and signed a 

written order on the same date. 
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The State introduced two videos into evidence: State’s Exhibit 2, which 

showed the beginning of the stop of White’s vehicle, and State’s Exhibit 4, which 

showed more of Bullinger’s interaction with White and the deployment of the dog. 

Both videos are dash cam recordings from the other deputy’s vehicle, which was 

parked directly behind White’s vehicle. The rear of White’s vehicle is clearly visible, 

but the sides of his vehicle are not. State’s Exhibit 4 shows Bullinger circling White’s 

vehicle with the dog, but the dog is not always visible on the video due to the angle

and the degree of illumination. When the other deputy says on the video that the dog 

alerted, only the dog’s head is visible at the front of the car, and when Bullinger 

offers the dog a tennis ball as a reward, the dog jumps up into view. It is difficult to 

tell how close the dog is to the driver’s side door when Bullinger and the other deputy

said the dog alerted. 

Bullinger explained that after the dog alerted, he searched the vehicle, starting 

at the front driver’s door. A glass pipe, which Bullinger testified is commonly used 

to smoke methamphetamine, was recovered from underneath the driver’s seat of 

White’s vehicle, and the pipe was admitted into evidence. Also recovered from the 

back seat of White’s vehicle and admitted into evidence were a Visa card belonging 

to S.C., a MasterCard belonging to D.N., a Visa card belonging to T.N., a 

MasterCard belonging to J.P., a MasterCard belonging to J.W., a Social Security 

card belonging to T.L., a Texas driver’s license belonging to J.L., a MasterCard 
6

belonging to D.B., a Social Security Card belonging to S.P., and a Visa card 

belonging to E.H.3 Bullinger explained that he was able to make contact with S.C.,

and S.C. informed Bullinger that her credit card had been taken in a burglary.4

S.C. testified that an officer called to inform her that her “debit card was found 

on someone.” According to S.C., the card had been stolen during a burglary. S.C. 

explained that she was unaware of any link between White and the burglary. S.C. 

testified that she did not give White permission to possess her card. The State rested 

after S.C.’s testimony. 

White testified that he found S.C.’s card in the glove box of a vehicle he had 

purchased. White explained that he never attempted to use the card. White testified 

that he knows some of the other people whose cards were found in his vehicle, and 

he testified that some of the cards arrived by mail. According to White, “none of it 

is fraudulent identification or credit cards. It is all prepaid and gift cards.” When 

asked whether the dog ever sat “as far as you saw it[]” White responded, “No, sir.” 

White testified, “I did not see [the dog] sit or mark on my vehicle. If anything, it was 

when he had it sit and go for the ball.” 

3

To protect the privacy of the victims, we refer to the victims using their

initials. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated 

with fairness and with respect for the victim’s dignity and privacy throughout the 

criminal justice process[]”).

4

White was only charged with possessing the identifying information

belonging to S.C. 
7

The defense rested after White’s testimony. During the charge conference, the 

trial judge noted that she had removed the portion of the proposed charge about the 

defendant’s failure to testify because White elected to testify, and when she asked 

whether there was “anything else that either side saw on the rough draft that I need 

to fix[,]” defense counsel responded, “I don’t think so.” Defense counsel did not 

object to the charge. During closing argument, defense counsel contended that the 

dog never alerted, and “[t]he probable cause is gone.” The prosecutor objected that 

the argument was improper because “[t]here is not a question or an instruction for 

the jury on this point[,]” and the trial court sustained the objection, but did not 

instruct the jury to disregard counsel’s argument. When defense counsel again 

argued that if jurors disbelieved that the dog alerted, the police lacked probable 

cause, the prosecutor again objected, and the trial court sustained the objection, again 

without instructing the jury to disregard counsel’s argument. During his rebuttal, the 

prosecutor argued, “I can tell you that this video shows him with headlights strapped 

to his hood. But you already know that. I could tell . . . you this dog alerted on that 

car. You know that too.” 

White did not request an article 38.23 charge. See Tex. Code Crim. Proc. Ann. 

art. 38.23 (providing that evidence obtained in violation of the U.S. Constitution or 

the Texas Constitution shall not be admitted against a criminal defendant, and “the 

jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence 
8

was obtained in violation of the provisions of this Article, then and in such event, 

the jury shall disregard any such evidence so obtained[]”). The charge submitted to 

the jury does not include an instruction to disregard any evidence the jury believed 

was illegally obtained. During its deliberations, the jury sent the following written 

question to the trial judge: “Are we to consider that there was a [sufficient] probable 

cause for search of the vehicle as part of the charge?” In her written response to the 

question, the trial judge instructed the jury to “only consider the instructions in the 

charge and continue deliberations.” The jury found White guilty, found the two 

enhancement paragraphs in the indictment to be true, and assessed punishment at ten 

years of confinement. 

WHITE’S SOLE ISSUE

In his sole appellate issue, White argues that the trial court reversibly erred by 

failing to sua sponte instruct the jury concerning the narcotics dog’s alert on White’s 

vehicle, which led to the discovery of all the incriminating evidence. Specifically, 

White contends he was entitled to such an instruction because “an issue of fact 

affecting the admissibility of all the evidence used to convict was raised.” 

Additionally, White asserts that the trial court’s failure to sua sponte instruct the jury 

egregiously harmed him. 

When reviewing alleged charge error, we determine whether error existed in 

the charge and, if so, whether sufficient harm resulted from the error to compel 
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reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005); see also 

Phillips v. State, 463 S.W.3d 59, 64-65 (Tex. Crim. App. 2015). When evidence is 

admitted that creates a question regarding whether evidence is the fruit of an illegal 

search, “‘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 [a]rticle, then 

and in such event, the jury shall disregard any such evidence so obtained.’” Robinson 

v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012) (quoting Tex. Code Crim. 

Proc. Ann. art. 38.23(a)). 

When, as here, the defendant does not object to the alleged charge error at 

trial, we may reverse the judgment only if the error was so egregious that the 

defendant did not receive a fair and impartial trial. Almanza v. State, 686 S.W.2d 

157, 171 (Tex. Crim. App. 1984) (op. on reh’g); see also Herron v. State, 86 S.W.3d 

621, 632 (Tex. Crim. App. 2002). Errors that result in egregious harm are those that 

affect the “‘very basis of the case,’ deprive the defendant of a ‘valuable right,’ or 

‘vitally affect a defensive theory.’” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. 

App. 1996), overruled on other grounds by Gelinas v. State, 398 S.W.3d 703 (Tex. 

Crim. App. 2013). “Egregious harm is a difficult standard to prove[,] and such a 

determination must be done on a case-by-case basis.” Id. The egregious harm inquiry

under Almanza is fact specific and “should be done on a case-by-case basis.”

Gelinas, 398 S.W.3d at 710. “[T]he record must show that a defendant has suffered 
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actual, rather than merely theoretical, harm from jury instruction error.” Ngo, 175 

S.W.3d at 750.

In assessing the degree of harm, we must consider the entire jury charge, the 

state of the evidence, including contested issues and the weight of probative 

evidence, the argument of counsel, and any other relevant information revealed by 

the record. Almanza, 686 S.W.2d at 171; see also Villarreal v. State, 453 S.W.3d 

429, 433 (Tex. Crim. App. 2015); Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. 

App. 2008). We must examine the charge in its entirety rather than as a series of 

isolated statements. Holley v. State, 766 S.W.2d 254, 256 (Tex. Crim. App. 1989); 

Iniguez v. State, 835 S.W.2d 167, 170 (Tex. App.—Houston [1st Dist.] 1992, pet. 

ref’d). 

We need not decide whether the trial court’s failure to include a 38.23 charge 

was erroneous because, assuming without deciding that it was, the record does not 

show that White suffered egregious harm, as explained herein. See Almanza, 686 

S.W.2d at 172; Davis v. State, 490 S.W.3d 268, 274 (Tex. App.—Fort Worth 2016, 

pet. ref’d) (Appellate court assumed error and addressed harm in deciding charge 

error issue.); see also generally Strickland v. Washington, 466 U.S. 668, 700 (1984) 

(holding that, with respect to a claim of ineffective assistance of counsel, defendant’s 

failure to make the required showing as to either the deficient attorney performance 

prong or the prejudice prong defeats the claim of ineffectiveness).
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White argues that he was egregiously harmed by the omission of an instruction

to disregard illegally obtained evidence because the omission “excluded” the jury 

from determining the admissibility of the evidence. White also asserts that he was 

egregiously harmed by the trial court’s failure to instruct the jury pursuant to article 

38.23 because the jury was presented with “an overwhelming number of 

incriminating items[,]” and “[w]ithout an alternative option for the jury to determine

a fact significant to the legality of the search, they had no reasonable choice but to 

convict Appellant.” White further argues that both parties made the legality of the 

evidence an issue during trial. According to White, without an article 38.23 

instruction, the jury lacked a mechanism to consider the legality of the search of 

White’s vehicle, and “the State was relieved of establishing that the search was 

reasonable.” Lastly, White argues that the jury’s written question to the trial court 

demonstrates “actual harm.”

Under the first Almanza factor, we must determine whether White suffered 

egregious harm by considering the alleged error in light of the totality of the charge. 

See Almanza, 686 S.W.2d at 171. The charge correctly set forth the elements of the 

offense of fraudulent possession of identifying information and correctly defined the 

pertinent statutory terms. See Tex. Penal Code Ann. § 32.51(b).5 The charge also 

5

Section 32.51(b) of the Texas Penal Code provides that a person commits an 

offense if, “with the intent to harm or defraud another, obtains, possesses, transfers, 

or uses an item of: (1) identifying information of another person without the other 
12

accurately set forth the circumstances under which a person is presumed to have the 

intent to harm or defraud another. See id. § 32.51(b-1)(1). In addition, the charge 

instructed the jury to find White not guilty unless it found the elements of the offense 

beyond a reasonable doubt, and it informed the jury that the State had the burden of 

proof throughout trial and as to each element of the offense. Moreover, the charge 

instructed the jury regarding the presumption of innocence. Furthermore, the charge 

instructed the jury that although it is the exclusive judge of the facts proved, the 

credibility of witnesses, and the weight to be given to their testimony, it is governed 

by the law set forth in the written instructions. As discussed above, the charge did 

not instruct the jury to disregard evidence it concluded was illegally obtained. 

Given that the charge correctly instructed the jury regarding the applicable 

law, including the burden of proof and the presumption of innocence, and instructed 

the jury that it is the exclusive judge of the facts proved, the credibility of the 

witnesses, and the weight to be given their testimony, we cannot conclude that White 

suffered egregious harm from the omission of an instruction to disregard evidence

the jury concluded was illegally obtained. The jury’s written question did not ask 

whether it should determine the sufficiency of the evidence of probable cause. 

Rather, the jury’s question asked whether it was to “consider that there was a 

person’s consent; (2) information concerning a deceased natural person . . . ; or (3) 

identifying information of a child younger than 18 years of age.” Tex. Penal Code 

Ann. § 32.51(b).
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[sufficient] probable cause for search of the vehicle as part of the charge?”; that is, 

the jury’s question seemed to presume that probable cause existed. In response to 

the jury’s question, the trial court did not instruct the jury not to consider probable 

cause, but simply referred the jury to the charge. For all these reasons, we conclude 

that the first Almanza factor weighs against a finding of egregious harm. See

Almanza, 686 S.W.2d at 171.

With respect to the second Almanza factor, the state of the evidence, including 

contested issues and the weight of probative evidence, the issue of whether the 

evidence was legally obtained was clearly contested at trial. See id.; see also

Villarreal, 453 S.W.3d at 433. However, “the mere existence of conflicting 

testimony surrounding a contested issue does not necessarily trigger a finding of 

egregious harm.” Villareal, 453 S.W.3d at 436. Although White testified that he “did 

not see” the dog alert on his vehicle, neither the videos admitted into evidence nor 

the testimony of either White or Bullinger established that White was able to fully 

observe the dog walking around his vehicle, that the dog never alerted, or that White 

knew what constituted an alert from the dog. Most of White’s testimony was focused 

on his attempts to explain why he possessed the items of identifying information and 

his assertion that he lacked the requisite intent to harm or defraud. Bullinger testified 

that the dog alerted on White’s vehicle, which was also confirmed by the other 

deputy on the video. Viewing the state of the evidence, including contested issues 
14

and the weight of probative evidence, we conclude that the second Almanza factor 

weighs against a finding of egregious harm. See Almanza, 686 S.W.2d at 171; see 

also Villarreal, 453 S.W.3d at 436.

We turn now to the third Almanza factor, the arguments of counsel. See 

Almanza, 686 S.W.2d at 171; see also Villareal, 453 S.W.3d at 433. During his 

opening statement, the prosecutor argued that after Bullinger asked White for 

consent and White “waffle[d] back and forth and back and forth” about whether he 

would consent to a search of his vehicle, Bullinger decided to have his K-9 do an 

open-air sniff around White’s vehicle. The prosecutor argued that the dog circled the 

vehicle and sat next to the driver’s side door, and “Sergeant Bullinger knows what 

that means.” According to the prosecutor, Bullinger decided he had probable cause 

to search White’s vehicle, and when he searched, he found identifying information 

belonging to S.C. The prosecutor argued, “That is our case. That’s what you should 

expect to see.” 

During his closing argument, the prosecutor argued briefly, stating that he 

would not take much time because he did not need to do so. The prosecutor asserted, 

“you can either believe that all of those things came together in a perfect storm of 

consequence to make an innocent Thomas White look guilty; or you can believe that 

it just is exactly what it looks like.” During his closing argument, defense counsel 

argued that White had just purchased his vehicle, and “[t]here could have been things 
15

in there that he didn’t even realize . . . were in there.” Defense counsel argued that 

“the weakness of this case is ‘intent to harm.’ That’s what you are going to have to 

figure out.” In addition, defense counsel emphasized that White did not attempt to 

use the card, which “absolutely obliterates the intent to defraud.” Defense counsel 

argued that regardless of the number of items of identifying information that White 

possessed, “[i]t doesn’t make any difference if you don’t have the intent to defraud.” 

Moreover, defense counsel argued that intent should not be presumed despite the 

number of cards in White’s possession. 

Defense counsel then argued as follows:

Let’s talk about that dog for a minute. That dog has been wrong seven 

times in the past. . . . He alerted and then they found nothing. When I 

look at this, I see the dog go around the car, never alerting. And you 

don’t see him on the back, you don’t see him on the right, you don’t see 

him on the front. You only see one quarter of the search. . . . He is at 

least 3 feet away from the car because you can’t see him on the video. 

A dog is not going to alert on a car 3 feet away. He has got to put his 

nose right up to it. . . . He alerted incorrectly. . . . The dog never alerts. 

What does that do to this whole case? The probable cause is gone. The 

police do not have the right to search . . . anything without probable 

cause. 

As discussed above, the prosecutor objected that defense counsel’s argument was 

improper because “[t]here is not a question or an instruction for the jury on this 

point[,]” and the trial judge sustained the objection, but did not instruct the jury to 

disregard defense counsel’s argument. Defense counsel then argued to the jury that

“if you go back there and you say I don’t believe that dog, that dog is wrong, you 
16

have no probable cause – you can do that.” The prosecutor objected, and the trial 

court sustained the objection, but again did not instruct the jury to disregard defense 

counsel’s argument. Defense counsel then resumed arguing that although there is 

evidence White possessed items of identifying information, there is no evidence of 

intent to harm or defraud. During rebuttal, the prosecutor argued regarding the 

presumption of intent to harm and exhorted the jury to follow the law. The prosecutor 

further argued, “I can tell [you] that [] this video shows [White] with headlights 

strapped to his hood. But you already know that. I could tell you that this dog alerted 

on that car. You know that too. I just don’t know what else to say, other than follow 

the law[.]” The prosecutor concluded his argument by instructing the jury to follow 

the law and not to allow the victim to “get lost in all of this.” 

Neither the prosecutor nor defense counsel misstated the law during argument. 

In addition, the State did not mention the evidence regarding the dog during its 

closing argument; rather, the State mentioned the issue during rebuttal, in response 

to defense counsel’s argument. Viewing the parties’ arguments in their entirety, we 

conclude that the third Almanza factor weighs against a finding of egregious harm. 

See Almanza, 686 S.W.2d at 171.

The fourth Almanza factor requires us to consider any other relevant

information revealed by the record. Id. We find no other relevant information 

revealed by the record beyond what we have already discussed in our analysis. We 
17

therefore conclude that the fourth Almanza factor does not weigh in favor of finding 

that the omission of a 38.23 instruction egregiously harmed White. See id. Having 

concluded that each of the four Almanza factors weighs against finding egregious 

harm, we overrule White’s sole issue and affirm the trial court’s judgment.

AFFIRMED.

_________________________

 W. SCOTT GOLEMON

 Chief Justice

Submitted on June 24, 2021

Opinion Delivered August 25, 2021

Publish

Before Golemon, C.J., Horton and Johnson, JJ.