                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-13-00127-CR


                            DANIEL UBALLE, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 140th District Court
                                  Lubbock County, Texas
            Trial Court No. 2012-435,358, Honorable Jim Bob Darnell, Presiding

                                       May 6, 2014

                                       OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Appellant Daniel Uballe was convicted of possession with intent to deliver a

controlled substance (cocaine) and sentenced to sixty years confinement. On appeal,

he contends the trial court erred in 1) failing to suppress the results of a search of his

vehicle under both the federal and state constitutions, 2) failing to submit an article

38.23 instruction, 3) refusing to grant a hearing on purported jury misconduct, 4)

refusing to grant a hearing on his motion for new trial, and 5) refusing to grant a new

trial based on jury misconduct. We affirm the judgment.
       Background

       On April 27, 2012, Lieutenant Eric Williams of the Texas Tech Police Department

observed a pickup truck pull up beside him at a traffic light on Indiana Avenue. He saw

that the driver (appellant) was not wearing a seat belt. When the light changed, he

followed appellant and activated his lights. Appellant did not immediately pull over, and

Williams observed that appellant was looking down to his right and the truck was

weaving. The truck eventually stopped on Texas Tech Parkway. Williams testified that

appellant still appeared to be doing something to his right side.

       Upon approaching appellant, Williams observed that appellant appeared very

nervous. When the officer asked for appellant’s driver’s license, appellant informed the

officer he did not have one. Williams had appellant get out of his vehicle and saw that

appellant wore an ankle monitor. Williams also saw a pink and white make-up case

sitting on the front seat beside where appellant had been sitting. The case was partially

open, and a clear piece of plastic was sticking out. Williams asked to search appellant,

and consent was given. Appellant carried a large amount of cash mostly in $20 bills

and explained that he had just gotten paid and received his tax return. When dispatch

ran appellant’s license tag, the officer learned that appellant’s driver’s license was

suspended. He also learned that appellant had a lengthy criminal history including a

drug offense. Williams then asked to search the truck, but appellant refused consent

and stated that his girlfriend’s possessions were in the truck.

       At that point, the officer arrested appellant for driving without a valid license and

for a seat belt violation. Appellant was handcuffed and placed in a police vehicle.

Appellant’s truck was to be impounded because no other licensed driver was present to

take possession of it.
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      Williams commenced an inventory of the vehicle prior to impoundment and

discovered what appeared to be crack cocaine in a plastic bag in the pink and white

make-up case next to the driver’s seat. A digital scale was also found in the driver’s

side door compartment as well as two credit cards in a name other than appellant’s.

      Issues 1 & 2—Search of the Vehicle

      In his first two issues, appellant argues that the inventory of his vehicle was

merely a ruse to conduct a contraband search in violation of the federal and state

constitutions and that the Texas Constitution affords greater protection from

unreasonable searches than does the Constitution of the United States.        We overrule

the issues.

      The pertinent standard of review is discussed in Fienen v. State, 390 S.W.3d

328, 335 (Tex. Crim. App. 2012) and Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997). It requires us to defer to the trial court’s determination of historical facts

and review de novo questions of law. Guzman v. State, 955 S.W.2d at 89.

      Next, we note that appellant does not question the legitimacy of his detention and

arrest. Given that, the police were authorized to conduct an inventory search of the

vehicle if impoundment was the only reasonable alternative to protect the vehicle.

Daniels v. State, 600 S.W.2d 813, 814 (Tex. Crim. App. 1980); St. Clair v. State, 338

S.W.3d 722, 724 (Tex. App.—Amarillo 2011, no pet.). Furthermore, they are not

required to investigate the existence of alternatives in the absence of some objectively

demonstrable evidence that alternatives did, in fact, exist. St. Clair v. State, 338 S.W.3d

at 724; Wooldridge v. State, No. 05-05-00263, 2006 Tex. App. LEXIS 8918, at *5-6

(Tex. App.—Dallas October 17, 2006, no pet.) (not designated for publication).


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       Here, appellant does not argue that there were alternatives to impounding the

vehicle.   So, impoundment and the performance of an inventory search were

permissible. Nonetheless, the inventory had to be conducted according to standardized

criteria or established routine. Camp v. State, No. 07-11-00481-CR, 2013 Tex. App.

LEXIS 15352, at *6 (Tex. App.—Amarillo December 19, 2013, pet. ref’d) (not

designated for publication). Furthermore, when the inventory includes the opening of

closed containers, as it did here, it must be shown that such act also was undertaken in

accordance with standardized police procedure or established routine, while being in

good faith and not for the sole purpose of investigation. Id. As we noted in Camp,

       Our view that standardized criteria . . . or established routine . . . must
       regulate the opening of containers found during inventory searches is
       based on the principle that an inventory search must not be a ruse for a
       general rummaging in order to discover incriminating evidence. The policy
       or practice governing inventory searches should be designed to produce
       an inventory. The individual police officer must not be allowed so much
       latitude that inventory searches are turned into ‘a purposeful and general
       means of discovering evidence of crime[.]’

Id., quoting Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990).

       Here, evidence appears of record that Texas Tech enacted a written policy

applicable to inventory searches.    It allowed same when, among other things, the

operator was arrested and directed "personnel . . . [to] conduct a complete written

inventory of a vehicle to be impounded." (Emphasis added). "Officers who impound a

vehicle" were also directed to "complete the Vehicle Inventory form as completely as

possible" and "[i]f contraband is found" to inventory it "on the case report." To that

evidence of a written policy, we add the testimony of one of the officers conducting the

inventory search; he disclosed that their policy was to inventory "everything" and that

they check or search "everything," including glove compartments, consoles, and under

                                            4
and behind the seats.           He further explained that "[t]he purpose of . . . doing the

inventory [of appellant's car] was to get the car off the road.              We were in a busy

intersection right there at Tech Parkway and 4th Street. There's a lot of traffic, a lot of

ambulances . . . in that area . . . . We needed to get it inventoried and get it towed out."

       Also of record is evidence that two officers conducted the inventory; one began

and another finished it. Additionally, not all items discovered were memorialized on the

inventory sheet, such as individual items of make-up found in a make-up kit.1 As the

officer explained: "It was as complete an inventory as possible at that time. Could we

have listed all the makeup out individually? I guess we could have. We could have

listed that he had floor mats in the pickup, too . . . ." He further denied any intent to

conduct a search simply to discover drugs, despite having seen a plastic baggie

protruding from the make-up kit.

       Given the 1) location of the vehicle, 2) traffic, 3) evidence of a policy directing

officers to perform a complete inventory and check "everything," 4) evidence that in

applying the policy, the officers check closed compartments such as glove boxes,

consoles, and in this case, a make-up case, 5) evidence of a written inventory of the

vehicle's contents, 6) officer's denial of any motive to simply search for drugs, and 7)

appellant's arrest, we cannot say that under the totality of the circumstances, the trial

court's refusal to deny the motion to suppress fell outside the scope of reasonable

disagreement. There exists of record sufficient evidence to support the conclusion that

the impoundment of the vehicle was not simply a ruse to search it for contraband. See

St. Clair v. State, 338 S.W.3d at 724-25 (finding enough evidence that a proper

inventory search was conducted even though the officer did not itemize the contents of

       1
           The make-up kit itself was noted on the inventory form, though.
                                                     5
the vehicle when he testified that the only items of value found were a purse and $88 in

it, the items were included in his report, and he testified he searched in accordance with

the policy); see also Richards v. State, 150 S.W.3d 762, 770 (Tex. App.—Houston [14th

Dist.] 2004, pet. ref’d) (wherein the search was held legal despite the absence of a

written policy regulating the search of closed containers because the officer testified that

he was trained to inventory any containers to which he had access).

         As for appellant's suggestion that the Texas Constitution should be interpreted,

per Autran v. State, 887 S.W.2d 31 (Tex. Crim. App. 1994), as providing greater

protection against unreasonable searches and seizures than the United States

Constitution, we rejected the argument long ago in Starnes v. State, No. 07-03-00378-

CR, 2004 Tex. App. LEXIS 10263, at *4-5 (Tex. App.—Amarillo November 16, 2004,

pet. ref’d) (not designated for publication); see also Clement v. State, No. 07-04-0381-

CR, 2005 Tex. App. LEXIS 1190, at *3 (Tex. App.—Amarillo January 25, 2005, no pet.)

(not designated for publication) (holding that we are not bound by Autran).

         Issue 3—Article 38.23 Instruction

         Next, appellant argues that a fact issue was raised with respect to the legality of

the search of his vehicle which entitled him to an instruction under article 38.23 of the

Code of Criminal Procedure.       Though we find error, we find no harm and overrule the

issue.

         Article 38.23 provides that “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.” TEX. CODE CRIM. PROC.


                                              6
ANN. art. 38.23(a) (West 2005); Bible v. State, No. 07-11-00192-CR, 2013 Tex. App.

LEXIS 4455, at *10 (Tex. App.—Amarillo April 8, 2013, no pet.) (not designated for

publication) (stating that a "trial court must give an article 38.23 instruction if the

evidence raises a disputed fact issue about whether evidence was lawfully obtained").

The requirement that "the legal evidence raises an issue" is met when affirmative

evidence creates a disputed issue of material fact. Madden v. State, 242 S.W.3d 504,

510 (Tex. Crim. App. 2007). That is, a defendant is entitled to the submission if 1) the

evidence heard by the jury raises a fact issue, 2) the evidence on that fact is

affirmatively contested, and 3) that contested factual issue is material to the lawfulness

of the challenged conduct in obtaining the evidence. Id. at 510; Bible v. State, 2013

Tex. App. 4455, at *10. However, if other facts, not in dispute, are sufficient to support

the lawfulness of the challenged conduct, then the disputed fact issue is not submitted

to the jury because it is not material to the ultimate admissibility of the evidence. Bible

v. State, 2013 Tex. App. LEXIS 4455, at *10.      Finally, an issue of material fact about

whether evidence was legally obtained may be raised from any source, and the

evidence may be strong, weak, contradicted, unimpeached, or unbelievable. Garza v.

State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004).

      Here, appellant asserts that the material issue of fact concerns the intent of the

officer who initially stopped the vehicle, arrested appellant, decided to impound the

vehicle, and commenced the inventory search. While that officer denied any intent to

conduct an inventory search merely to look for contraband, his actions purportedly

revealed otherwise, according to appellant.




                                              7
        Intent normally is an issue of fact.2 See Brown v. State, 122 S.W.3d 794, 800

(Tex. Crim. App. 2003).           And, as we have often said, it can be illustrated through

circumstantial evidence, such as the actor's conduct. Girdy v. State, 175 S.W.3d 877,

880 (Tex. App.—Amarillo 2005), aff’d, 213 S.W.3d 315 (Tex. Crim. App. 2006). So, a

fact finder is not obligated to accept only the words used by a witness in describing his

mens rea; it may also look at his acts to assess what he was thinking. This observation

is of import here due to the law governing inventory searches; again, they may occur if

conducted in good faith and per standardized policy or routine. Camp v. State, 2013

Tex. App. LEXIS 15352, at *6; see also Colorado v. Bertine, 479 U.S. 367, 374, 107

S.Ct. 738, 93 L.Ed.2d 739 (1987) (stating that "reasonable police regulations relating to

inventory procedures administered in good faith satisfy the Fourth Amendment . . . .").

We also add that the matter of good faith tends to be subjective and personal rather

than objective. Corbin v. State, 85 S.W.3d 272, 280 n.5 (Tex. Crim. App. 2002).

        With the foregoing in mind, we note that Officer Williams testified to seeing

appellant engage in furtive gestures before the stop, characterized appellant as more

nervous than most people being stopped by an officer, asked why he was so nervous

and whether there was something in the vehicle that he (the officer) needed to know


        2
           The State posits that “‘the intent and belief of the actors’ and the ‘purpose of the officers’ were
legal determinations,” as opposed to issues of fact subject to resolution by a jury, “because the intent and
belief of the actors and their purpose in searching the vehicle can only be considered as part of an overall
determination of whether the inventory was valid or not—which is a determination for a court to make
rather than a factual dispute for a jury to resolve.” Yet, it cited no legal authority supporting the
proposition, and this somewhat hampers our understanding of what it is attempting to say. We would
agree that if the facts purporting to evince the requisite good faith are uncontroverted (e.g. the occurrence
of indicia X, Y, and Z is uncontroverted), then whether their quantum equates to good faith is a question
of law. See Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012). If the underlying facts are
controverted (e.g. witnesses provide evidence indicating X, Y, and Z may or may not have occurred), then
the existence of the facts present questions of fact for a jury to decide under article 38.23. That the
resolution of the factual dispute concerns the validity of the stop or search does not make the matter an
issue of law. If the State is suggesting otherwise, then it is wrong. Indeed, such an interpretation of the
law would render article 38.23 meaningless.
                                                      8
about, had seen a make-up case from which protruded part of a plastic bag, described

the make-up case as being in the area towards which appellant's furtive gestures had

been directed, discovered large sums of money on appellant's person, and solicited but

was denied permission to search the vehicle.     Thereafter, the officer decided to arrest

appellant, impound the vehicle, and conduct an inventory search prior to the vehicle's

actual removal. In performing that inventory search, the first thing the officer went to

(after approaching the vehicle, of course) was the make-up case. Once the case was

opened and the potential contraband discovered, the very same officer confronted

appellant in an accusatory manner with the discovery, despite the alleged vehicular

congestion that mandated the vehicle's removal from the scene with due haste. From

these indicia, one could reasonably infer that the officer not only wanted to search but

also contrived a means of searching the truck for contraband.

       Indeed, the presence of furtive gestures, the possession of large sums of money,

and the appearance of nervousness are regularly cited by officers as indicia suggesting

that something odd or potentially criminal is afoot and that a limited search and seizure

may be justified. It would seem rather specious to suggest that those circumstances

somehow lose significance when the officer decides to conduct an inventory search.

And, Officer Williams having asked if appellant had anything in the truck that should be

revealed and sought permission to search it hardly supports the notion that the officer

did not want to look for contraband.

       Unless the element of good faith is to be excised from constitutional

jurisprudence governing the search at bar, a material issue of fact involving the officer's

good faith existed thereby triggering the application of article 38.23. In short, the trial

court erred in denying appellant's request for such an instruction.

                                             9
       Yet, our inquiry continues. Having found error, we must decide if it was harmful.

Bible v. State, 2013 Tex. App. LEXIS at *9-10; accord Barrios v. State, 283 S.W.3d 348,

350 (Tex. Crim. App. 2009) (so stating); Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (so stating). Since the instruction at issue was requested here, the

presence of harm depends on whether it was "calculated to injure the rights of the

defendant" or whether "some harm" appears of record. Bible v. State, 2013 Tex. App.

LEXIS 4455, at *9-10; Almanza v. State, 686 S.W.2d at 171. And, that is assessed by

examining 1) the entire jury charge, 2) the state of the evidence, including the contested

issues and weight of probative evidence, 3) the argument of counsel, and (4) any other

relevant information contained in the record of the trial as a whole. Bible v. State, 2013

Tex. App. LEXIS 4455, at *9-10.

       No one questions the legitimacy of appellant's arrest. Furthermore, he was the

sole driver of the vehicle, and nothing of record indicates that anyone else was readily

available to take possession of it. That it was stopped on a street containing extensive

vehicular traffic also appears rather clear. So, the need to impound and remove it from

the scene can hardly be questioned. To that, we add the existence of a written policy 1)

authorizing the vehicle's impoundment given appellant's arrest and the vehicle's

creation of a potential traffic hazard and 2) requiring a "complete inventory of the vehicle

to be impounded." Williams and the other officers were within their authority to search

the truck.

       That the make-up kit appeared on the front seat of the truck and was of the type

in which one may place valuable items further evinced a need to open and peruse its

contents. And, again, the opening of closed containers was an act within the scope of

the written policy since a complete inventory had to be taken.

                                            10
       These circumstances all but legitimize the inventory search conducted by

Williams and his fellow officers. Thus, denying the jury opportunity to assess Williams'

good faith was harmless error.

       Issues 4 & 5—Jury Misconduct

       Appellant's last two issues arise from a juror leaving the room in which the jury

was sequestered while deliberating punishment.            The incident was described by

appellant's trial counsel as follows:

       . . . based on the immediate past events, I guess probably 10 minutes
       ago -- and for the record one of the jurors exited the jury room separating
       herself from the rest of the jurors in a somewhat agitated state. I believe
       that she indicated something to the -- along the lines of if she went back in
       the jury room that it could result in her going to jail. I believe that would
       indicate that there is an impasse in the jury deliberations and would
       suggest that the Court call the jury back into the jury room to inquire
       whether they have reached an impasse or not, so that deliberations can
       continue, if possible, without the threat or without the possibility that one of
       the jurors is being bullied. I think one of the other comments she made
       was something along the lines that she would not be bullied. And we
       believe that that is indicative from her explosion from the courtroom, and
       her comments that potential jury misconduct is afoot, and that she is not
       being allowed to exercise her own individual verdict.

A like description of the event appears in the affidavit accompanying appellant's motion

for new trial. The court responded to defense counsel's request and comments with the

following:   “Well, the Court gave them a recess and they’re back in the jury room

deliberating. Unless something happens, the Court is not going to interfere with their

deliberations at this point in time.”

       Before us, appellant argues that "[t]he trial court erred both in denying the

immediate hearing on the misconduct and on denying a hearing on the portion of the




                                             11
motion for new trial based on the evidence to be elicited from that juror about being

bullied in the jury room." We overrule the issue.

         The decision to deny a motion for new trial is reviewed under the standard of

abused discretion, Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2009), as is

the decision to further instruct jurors once they have retired to deliberate. See Wilbon v.

State, 961 S.W.2d 9, 11 (Tex. App.—Amarillo 1996, no pet.). Thus, we can reverse

those decisions only if they fell outside the zone of reasonable disagreement.

         Assuming arguendo that the trial court erred in deciding to forego investigation

and instead return the jurors to the jury room after a brief recess, we find it harmless.

Unlike the situation in the sole authority cited by appellant to support his contention, i.e.

Early v. State, 1 Tex. Ct. App. 248 (1876), the circumstances before us do not involve a

juror intermingling with non-jurors upon leaving the room without permission. Nor does

the record illustrate that tempers somehow hampered their ability to reach a verdict.

Indeed, after the event and a short recess, the jurors returned to the task of deliberating

and reached a unanimous verdict on punishment. Each juror was polled, and each

affirmed the decision. So, we cannot say that the decision to allow tempers to cool

rather than to conduct a hearing to query jurors about their deliberations and demeanor

while deliberating affected the outcome in any impermissible way.

         Next, a hearing upon a motion for new trial is warranted if 1) the matters raised in

the motion and accompanying affidavit are not determinable from the record, and 2) the

motion and affidavit establish reasonable grounds showing that the defendant could

potentially be entitled to relief. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App.

2009).     Here, neither the motion nor accompanying affidavit filed by appellant raised

any matter outside the previously existing record. In that circumstance, it was not error

                                              12
to deny a hearing on the motion. Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App.

2009) (holding that a hearing is not required when the matters raised in the motion for

new trial are subject to determination from the record).

      As for the allegation about denying appellant a new trial due to jury misconduct,

the potential misconduct is premised upon by a juror's exit from the jury room and

"agitated" outburst about supposed bullying. Yet, Rule of Evidence 606(b) bars that

juror and any other one from testifying about "any matter or statement occurring during

the jury's deliberations, or to the effect of anything on any juror's mind or emotions or

mental processes, as influencing any juror's assent to or dissent from the verdict or

indictment." TEX. R. EVID. 606(b). So, none of the jurors can be queried about any

matter or exchange that may have given rise to the emotional outburst or alleged

misconduct. And, we cannot say that a decision to forego negating a verdict by granting

a new trial upon speculation that some misconduct occurred falls outside the zone of

reasonable disagreement.

      Accordingly, appellant’s issues are overruled and the judgment is affirmed.



                                                       Brian Quinn
                                                       Chief Justice

Publish.




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