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 
Nunez-Hernandez v. State Page 2

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 3

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 4

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 5

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 NunezHernandez’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 NunezHernandez’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 NunezHernandez. 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 NunezHernandez 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 6

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. NunezHernandez 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. NunezHernandez testified that he believed he was not free to leave at that time. Nunez-
Nunez-Hernandez v. State Page 7

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 NunezHernandez 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 8

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

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