IN THE TENTH COURT OF APPEALS
No. 10-17-00039-CR
RUBEN NUNEZ-HERNANDEZ, Appellant v.
THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court No. 2015-2469-C1
MEMORANDUM OPINION
Appellant Ruben Nunez-Hernandez was convicted by a jury on two counts: (1)
continuous sexual abuse of a child, for which he was sentenced to ninety-nine years’
incarceration; and (2) indecency with a child by contact, for which he received a
concurrent twenty-year sentence of incarceration. A separate judgment was entered for
each count. In one issue, Nunez-Hernandez argues that the trial court erred in admitting
evidence that was seized after a search of his residence because the State did not prove
that he gave voluntary consent for the search. Nunez-Hernandez specifically challenges the admission of State’s Exhibit 7, a sheet from the victim’s bed, and State’s Exhibits 9
through 16, which consisted of photographs of the sheet and lab reports that indicated
Nunez-Hernandez’s DNA was on the sheet.
Although a separate motion to suppress was not filed, Nunez-Hernandez objected
when the evidence was introduced at trial.
A defendant may challenge the admissibility of evidence in either of two ways: (1) he may object to the admission of the evidence at the time it is offered at trial and request a hearing outside the presence of the jury; or (2) he may file a pretrial motion to suppress evidence and have it heard and ruled upon before trial. Holmes [v. State], 248 S.W.3d [194] at 199 [(Tex. Crim. App. 2008)] (citing TEX. R. EVID. 103(c); TEX. CODE CRIM. PROC. ANN. art. 28.01, § 1(6) (West 2006); Pierce [v. State], 32 S.W.3d [247] at 251 [(Tex. Crim. App. 2000)]). Trial judges “have an obligation to entertain evidence and argument on exclusionary rule objections and to independently and definitively resolve questions of law and fact presented by such objections.” Holmes, 248 S.W.3d at 199 (quoting 40 GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE, § 4.163 at 263 (2d ed. 2001)).
Evans v. State, 440 S.W.3d 107, 117 (Tex. App.—Waco 2013, pet. ref’d). The trial court
heard argument on the admissibility of the evidence outside the presence of the jury and
overruled Nunez-Hernandez’s objections.
A trial court’s ruling on a motion to suppress is reviewed on appeal for an abuse
of discretion. State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018).
We evaluate a trial court's ruling on a motion to suppress under a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). The trial judge is the sole trier of fact and judge of the weight and credibility of the evidence and testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). Accordingly, we give almost total deference to the trial court's determination of historical facts if supported by the record. Ford, 158 S.W.3d at 493. But we review de novo the trial court's application of the law to those facts. Id. We give the prevailing party “the strongest legitimate view of the evidence and all reasonable inferences that
Nunez-Hernandez v. State Page 2 may be drawn from that evidence.” State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011). We must uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).
Evans, 440 S.W.3d at 117–18; see also Cole v. State, 490 S.W.3d 918, 922 (Tex. Crim. App.
2016). “[I]f the trial court does not make express findings of fact, we view the evidence
in the light most favorable to the trial court’s rulings, and will assume it made implicit
findings that are supported by the record.” Brodnex v. State, 485 S.W.3d 432, 436 (Tex.
Crim. App. 2016). The trial court did not make express findings of fact in this case.
Nunez-Hernandez argues that he did not give voluntary consent for the officers
to search his house and that he did not have sufficient English skills to understand that
the officers were asking for consent to search.
Consent to search is a well-established exception to the constitutional
requirements of a warrant and probable cause. Meekins v. State, 340 S.W.3d 454, 458 (Tex.
Crim. App. 2011); see also Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000).
The test for whether consent was valid is whether it was voluntary. Carmouche, 10 S.W.3d
at 331 (quoting Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996)).
The burden is on the State to show that consent was voluntary by clear and convincing
evidence. Meekins, 340 S.W.3d at 459; see also State v. Ibarra, 953 S.W.2d 242, 245 (Tex.
Crim. App. 1997). Whether consent is voluntary is a question of fact to be determined
from a review of the totality of the circumstances. Meekins, 340 S.W.3d at 459. The trial
court must assess both the characteristics of the suspect and the details of the encounter
with law enforcement. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). To be
Nunez-Hernandez v. State Page 3 valid, consent must not be coerced “by explicit or implicit means, by implied threat or
covert force.” Meekins, 340 S.W.3d at 458; see also Allridge v. State, 850 S.W.2d 471, 493
(Tex. Crim. App. 1991). The standard is an objective one assessed from the point of view
of a reasonable person “without regard for the subjective thoughts or intents of either the
officer or the citizen.” Meekins, 340 S.W.3d at 459 (quotation marks and citation omitted).
A variety of factors have been identified as relevant in determining whether
consent was voluntary. See Meekins, 340 S.W.3d at 460, n.26 (whether encounter included
“physical mistreatment, use of violence, threats, threats of violence, promises or
inducements, deception or trickery,” and physical and mental condition and capacity of
suspect); Tucker v. State, 369 S.W.3d 179, 185 (Tex. Crim. App. 2012) (footnoted citations
omitted) (whether suspect advised of constitutional rights, length of detention, whether
questioning repetitive or prolonged, whether suspect aware he could decline to answer
questions, and what kind of psychological impact questioning had on suspect); Peucker v.
State, 489 S.W.3d 592, 603 (Tex. App.—Texarkana 2016, pet. ref’d) (age, education and
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IN THE TENTH COURT OF APPEALS
No. 10-17-00039-CR
RUBEN NUNEZ-HERNANDEZ, Appellant v.
THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court No. 2015-2469-C1
MEMORANDUM OPINION
Appellant Ruben Nunez-Hernandez was convicted by a jury on two counts: (1)
continuous sexual abuse of a child, for which he was sentenced to ninety-nine years’
incarceration; and (2) indecency with a child by contact, for which he received a
concurrent twenty-year sentence of incarceration. A separate judgment was entered for
each count. In one issue, Nunez-Hernandez argues that the trial court erred in admitting
evidence that was seized after a search of his residence because the State did not prove
that he gave voluntary consent for the search. Nunez-Hernandez specifically challenges the admission of State’s Exhibit 7, a sheet from the victim’s bed, and State’s Exhibits 9
through 16, which consisted of photographs of the sheet and lab reports that indicated
Nunez-Hernandez’s DNA was on the sheet.
Although a separate motion to suppress was not filed, Nunez-Hernandez objected
when the evidence was introduced at trial.
A defendant may challenge the admissibility of evidence in either of two ways: (1) he may object to the admission of the evidence at the time it is offered at trial and request a hearing outside the presence of the jury; or (2) he may file a pretrial motion to suppress evidence and have it heard and ruled upon before trial. Holmes [v. State], 248 S.W.3d [194] at 199 [(Tex. Crim. App. 2008)] (citing TEX. R. EVID. 103(c); TEX. CODE CRIM. PROC. ANN. art. 28.01, § 1(6) (West 2006); Pierce [v. State], 32 S.W.3d [247] at 251 [(Tex. Crim. App. 2000)]). Trial judges “have an obligation to entertain evidence and argument on exclusionary rule objections and to independently and definitively resolve questions of law and fact presented by such objections.” Holmes, 248 S.W.3d at 199 (quoting 40 GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE, § 4.163 at 263 (2d ed. 2001)).
Evans v. State, 440 S.W.3d 107, 117 (Tex. App.—Waco 2013, pet. ref’d). The trial court
heard argument on the admissibility of the evidence outside the presence of the jury and
overruled Nunez-Hernandez’s objections.
A trial court’s ruling on a motion to suppress is reviewed on appeal for an abuse
of discretion. State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018).
We evaluate a trial court's ruling on a motion to suppress under a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). The trial judge is the sole trier of fact and judge of the weight and credibility of the evidence and testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). Accordingly, we give almost total deference to the trial court's determination of historical facts if supported by the record. Ford, 158 S.W.3d at 493. But we review de novo the trial court's application of the law to those facts. Id. We give the prevailing party “the strongest legitimate view of the evidence and all reasonable inferences that
Nunez-Hernandez v. State Page 2 may be drawn from that evidence.” State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011). We must uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).
Evans, 440 S.W.3d at 117–18; see also Cole v. State, 490 S.W.3d 918, 922 (Tex. Crim. App.
2016). “[I]f the trial court does not make express findings of fact, we view the evidence
in the light most favorable to the trial court’s rulings, and will assume it made implicit
findings that are supported by the record.” Brodnex v. State, 485 S.W.3d 432, 436 (Tex.
Crim. App. 2016). The trial court did not make express findings of fact in this case.
Nunez-Hernandez argues that he did not give voluntary consent for the officers
to search his house and that he did not have sufficient English skills to understand that
the officers were asking for consent to search.
Consent to search is a well-established exception to the constitutional
requirements of a warrant and probable cause. Meekins v. State, 340 S.W.3d 454, 458 (Tex.
Crim. App. 2011); see also Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000).
The test for whether consent was valid is whether it was voluntary. Carmouche, 10 S.W.3d
at 331 (quoting Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996)).
The burden is on the State to show that consent was voluntary by clear and convincing
evidence. Meekins, 340 S.W.3d at 459; see also State v. Ibarra, 953 S.W.2d 242, 245 (Tex.
Crim. App. 1997). Whether consent is voluntary is a question of fact to be determined
from a review of the totality of the circumstances. Meekins, 340 S.W.3d at 459. The trial
court must assess both the characteristics of the suspect and the details of the encounter
with law enforcement. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). To be
Nunez-Hernandez v. State Page 3 valid, consent must not be coerced “by explicit or implicit means, by implied threat or
covert force.” Meekins, 340 S.W.3d at 458; see also Allridge v. State, 850 S.W.2d 471, 493
(Tex. Crim. App. 1991). The standard is an objective one assessed from the point of view
of a reasonable person “without regard for the subjective thoughts or intents of either the
officer or the citizen.” Meekins, 340 S.W.3d at 459 (quotation marks and citation omitted).
A variety of factors have been identified as relevant in determining whether
consent was voluntary. See Meekins, 340 S.W.3d at 460, n.26 (whether encounter included
“physical mistreatment, use of violence, threats, threats of violence, promises or
inducements, deception or trickery,” and physical and mental condition and capacity of
suspect); Tucker v. State, 369 S.W.3d 179, 185 (Tex. Crim. App. 2012) (footnoted citations
omitted) (whether suspect advised of constitutional rights, length of detention, whether
questioning repetitive or prolonged, whether suspect aware he could decline to answer
questions, and what kind of psychological impact questioning had on suspect); Peucker v.
State, 489 S.W.3d 592, 603 (Tex. App.—Texarkana 2016, pet. ref’d) (age, education and
intelligence of suspect); Hutchins v. State, 475 S.W.3d 496, 498-99 (Tex. App.—Houston
[1st Dist.] 2015, pet. ref’d) (whether suspect in custody and whether suspect arrested at
gunpoint). Conversely, the presence of one or more of the foregoing factors does not
mandate a determination that consent was not voluntary. See Reasor, 12 S.W.3d at 818
(consent to search deemed voluntary even though suspect was handcuffed after being
arrested at gunpoint and officers had already entered the suspect’s home illegally while
performing a protective sweep); Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App.
2003) (consent not rendered involuntary by failure to inform suspect of his Miranda rights
Nunez-Hernandez v. State Page 4 or that results of search could incriminate him and when police sought consent while
suspect was receiving treatment for an injury that caused him pain); Johnson v. State, 68
S.W.3d 644, 653 (Tex. Crim. App. 2002) (no duty to warn suspect that he has right to refuse
consent to search).
The trial court in this case based its determination of the voluntariness of Nunez-
Hernandez’s consent to search upon the testimony of two witnesses: Jeremy Bost, who
was a patrol officer with the McGregor Police Department on the date Nunez-
Hernandez’s residence was searched, and Nunez-Hernandez.
Bost testified that he went to Nunez-Hernandez’s residence after taking a
complaint from the victim and her mother that the victim had been abused by Nunez-
Hernandez. Bost did not obtain consent from the mother to search the residence. Bost,
accompanied by another officer, knocked on the residence door but received no answer.
As Bost and the other officer turned to leave, they observed Nunez-Hernandez walking
up the driveway. Nunez-Hernandez identified himself after Bost questioned him. Bost
then placed Nunez-Hernandez in handcuffs to detain him for officer safety and
performed an exterior pat down. Both officers were in uniform and armed, but neither
drew his gun when confronting Nunez-Hernandez. Nunez-Hernandez did not try to flee
and was cooperative with the officers. Bost testified that he realized that Nunez-
Hernandez was not proficient in the English language and that Bost knew very little
Spanish. However, Bost further testified that Nunez-Hernandez said that he understood
English but that he could not speak it well. Bost noted that Nunez-Hernandez responded
to his questions in short sentences and that Nunez-Hernandez never indicated that he
Nunez-Hernandez v. State Page 5 had any problems understanding Bost. Nunez-Hernandez asked what was going on, and
Bost told him there was an investigation. Bost did not inform Nunez-Hernandez of the
nature of the investigation. Bost told Nunez-Hernandez that the officers needed to make
sure there was nothing illegal inside the residence and asked Nunez-Hernandez if he
would consent to a search of the house. Bost testified that Nunez-Hernandez consented
to the search. Bost did not read Nunez-Hernandez his Miranda rights prior to asking for
consent, nor did he inform Nunez-Hernandez that he had the right not to consent. Bost’s
request for consent came only minutes after Nunez-Hernandez was detained.
Bost testified he had Nunez-Hernandez sit at the kitchen table. The other officer
remained with Nunez-Hernandez while Bost searched the residence. When asked,
Nunez-Hernandez pointed out the victim’s bedroom. Bost stated that Nunez-Hernandez
never revoked his consent nor limited the extent of his consent. Bost also testified that
Nunez-Hernandez was not placed under arrest until they discovered a falsified Social
Security card in his wallet. Bost questioned Nunez-Hernandez about the Social Security
card, and Nunez-Hernandez was able to answer Bost’s questions.
Nunez-Hernandez testified that he was twenty-four years old and originally from
Mexico. He testified that he had been in the United States since the age of fifteen. Nunez-
Hernandez did not indicate his level of education, but there was nothing to indicate he
was of below-average intelligence. Nunez-Hernandez testified that on the day of the
search, he saw three police officers at his residence. Nunez-Hernandez stated that he was
placed under arrest and in handcuffs after he told the officers his name. Nunez-
Hernandez testified that he believed he was not free to leave at that time. Nunez-
Nunez-Hernandez v. State Page 6 Hernandez, who used an interpreter, also testified that he spoke a little English and that
none of the officers spoke with him in Spanish. Nunez-Hernandez also testified that he
was not read his constitutional rights. Nunez-Hernandez stated that he was never asked
for consent to search his residence and that the officers refused to answer him when he
asked if they had a warrant or some other authorization to search his home. Bost testified
that Nunez-Hernandez never asked them about a warrant or any other type of
authorization. Nunez-Hernandez testified that he never gave the officers consent to
search his residence. During his testimony, Nunez-Hernandez admitted that he was
serving a term of probation for criminal mischief after running his vehicle through a
fence.
The issue regarding whether Nunez-Hernandez consented to a search of his
residence ultimately relies upon the trial court’s determination as to which witness was
more credible: Nunez-Hernandez or Bost. By its ruling, the trial court credited the
testimony of Bost. The record supports the trial court’s implied finding that Nunez-
Hernandez voluntarily consented to a search of his residence. Viewing the evidence in
the light most favorable to the trial court’s ruling, Nunez-Hernandez was sufficiently
proficient in the English language that he understood when Bost asked him for consent
to search the residence. The record also supports the trial court’s implied finding that
Nunez-Hernandez was not subjected to any type of coercion, either express or implied.
Nunez-Hernandez’s encounter with Bost was not his first encounter with the police or
the American legal system. Nunez-Hernandez’s own testimony that he questioned the
officers’ authority, even if disputed by Bost, reflects at least a rudimentary knowledge of
Nunez-Hernandez v. State Page 7 his rights. Even though Nunez-Hernandez was handcuffed and not free to leave prior to
being asked to consent, no other events occurred that would have objectively caused a
reasonable person to believe that he was forced to consent.
Having viewed the evidence in the light most favorable to the trial court’s rulings,
the trial court’s determination that Nunez-Hernandez voluntarily consented to the search
of his residence was not clearly erroneous and, thus, not an abuse of discretion. The trial
court did not err, therefore, in denying Nunez-Hernandez’s motion to suppress. We
overrule Nunez-Hernandez’s sole issue and affirm the trial court’s judgments.
REX D. DAVIS Justice
Before Chief Justice Gray, Justice Davis, and Justice Neill Affirmed Opinion delivered and filed June 19, 2019 Do not publish [CRPM]
Nunez-Hernandez v. State Page 8