                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-17-00283-CR


JOSE CIRO RODRIGUEZ, SR.                                          APPELLANT

                                      V.

THE STATE OF TEXAS                                                      STATE

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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1297707D

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                       MEMORANDUM OPINION1

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      Appellant Jose Ciro Rodriguez, Sr. appeals his first-degree-felony

conviction for possessing and intending to deliver between four and two hundred

grams of methamphetamine.2 In one issue, he contends that the trial court erred

by denying his motion to suppress evidence concerning the methamphetamine,


      1
      See Tex. R. App. P. 47.4.
      2
      See Tex. Health & Safety Code Ann. § 481.112(a), (d) (West 2017).
which the police discovered upon a search of his home. We hold that the trial

court did not err by denying the motion to suppress, and we affirm the trial court’s

judgment.

                                  Background3

      One evening in September 2012, Fort Worth police officer Matthew

McMeans was working undercover, surveilling an Arlington house that he

suspected had a connection to the delivery of illegal narcotics. Rodriguez left the

house in a red Dodge truck; Officer McMeans followed him and saw him fail to

use a turn signal before making a turn. Officer McMeans was in an unmarked

car and could not pull Rodriguez over for that traffic violation, so he asked

Damian Gary, an officer with the Arlington Police Department, to find and detain

Rodriguez.

      Officer Gary saw Rodriguez driving the truck; Rodriguez was speeding at

more than twice the limit of forty miles per hour. Officer Gary conducted a traffic

stop. When he walked toward Rodriguez’s truck, which contained Rodriguez and

his common-law wife Cynthia Garza, he smelled marijuana. Officer Gary and

Rodriguez conversed in English.

      Officer McMeans also arrived at the scene of the traffic stop and talked to

Rodriguez in English. Neither of the officers pulled out guns during the stop.

Rodriguez showed a relaxed demeanor.          Officer McMeans asked Rodriguez

      3
       The first part of this factual recitation comprises the testimonies of the
State’s witnesses. Rodriguez testified to different facts that we will detail below.


                                         2
whether there were “any narcotics back at his home,” and Rodriguez said there

were. Officer McMeans then asked Rodriguez to sign a form to give the police

consent to search the house for narcotics, and Rodriguez said that he would sign

the form.

       Officer McMeans gave a Spanish-language consent form to Rodriguez. In

explaining why he gave Rodriguez the Spanish-language form, Officer McMeans

later testified,

       Well, I -- a lot of times, when you’re talking to . . . somebody who can
       speak Spanish and English, they’ll say on the scene that they speak
       -- so I asked him, do you speak English, yes, or can you speak
       Spanish, he said he could, and I asked when I was giving him the
       consent form if he could read in Spanish and English, he said he
       could.

            I’ll generally give them the Spanish version, just so later on --
       because I’ve been in trial -- later on, historically, I’ve seen it happen
       where they’ve come back and said, I [did not] understand . . . .

       Officer McMeans explained the form to Rodriguez and told Rodriguez that

he could withdraw his consent at any time. Rodriguez never indicated that he

could not understand the form, and he signed it. Translated to English, the form

stated in part,

             Consent to search: I . . . have been informed by the officer,
       who has . . . served me with this document, that I have the right to
       refuse this officer or any other officer permission to conduct a search
       of my [house] . . . .

             I understand that if I do not give my consent . . . to search my
       property, my property cannot be searched by an officer of the State
       of Texas, unless he has a search warrant.




                                          3
            I understand that these rights are afforded to me under the
      Constitution of the State of Texas, as well as the Constitution of the
      United States. Nonetheless, I voluntarily waive . . . my right, and I
      give my consent to this officer . . . and any officer assisting him to
      conduct that search . . . of the property . . . .

            ....

            I have given my consent voluntarily, and this consent is not
      the product of any threat, promise, compulsion, or persuasion of any
      kind.

      Officer McMeans and Rodriguez returned to Rodriguez’s house.

Rodriguez did not withdraw his consent for the search. After they entered the

house, Officer McMeans asked Rodriguez where the drugs were, and Rodriguez

pointed toward a television in the master bedroom. Inside a cigar box near the

television, Officer McMeans found a baggie that contained methamphetamine 4 in

an amount large enough to indicate Rodriguez’s intent to deliver. In the same

bedroom, Officer McMeans found a digital scale and several guns.

      A grand jury indicted Rodriguez with possessing and intending to deliver

between four and two hundred grams of methamphetamine.            The indictment

contained an allegation that he used or exhibited a firearm during the

commission of the offense.

      Rodriguez filed a motion to suppress evidence concerning the police’s

discovery of the methamphetamine, contending, in part, that the police had



      4
     A forensic scientist testified that her test of the substance that Officer
McMeans found in the cigar box showed that it was 156.21 grams of
methamphetamine.


                                        4
obtained the evidence while violating his federal and state constitutional rights.

After Rodriguez pleaded not guilty, during a trial before a jury but outside the

jury’s presence, the trial court held a hearing on the motion to suppress.

      During the hearing, Rodriguez, through an interpreter,5 testified, among

other facts, that on the September 2012 evening, he was not speeding when he

was pulled over; that he had not understood what the officers were asking him

concerning consent to search his house; and that although he had signed the

consent form, he had not had time to read it and had not “pa[id] attention” to it

because he was scared and nervous. Rodriguez also testified that the officers

told him to sign the consent form or they would “take down the doors [to his]

house.”

          The trial court denied the motion to suppress. On the record, the court

found6 that Officer Gary’s stop of Rodriguez’s truck was based on traffic

violations and was lawful.7 The court also found that Rodriguez gave the officers


      5
        At one point during his testimony, Rodriguez, apparently understanding
his counsel’s questions in English, answered them without waiting for the
interpreter to translate them. The trial court instructed him, “We have the benefit
of an interpreter. . . . You have to wait for the question to be translated in
Spanish. . . . I understand that you know English . . . .” At trial, Garza testified
that Rodriguez speaks English “pretty well” and also speaks Spanish.
      6
        Rodriguez did not request formal, written findings of fact and conclusions
of law. We will consider the trial court’s oral pronouncement of its ruling as
including its factual findings supporting the ruling. See State v. Varley, 501
S.W.3d 273, 277 (Tex. App.—Fort Worth 2016, pet. ref’d) (mem. op).
      7
        On appeal, Rodriguez does not contest this finding. In his statement of
facts, he appears to concede that he committed traffic offenses.


                                         5
consent to search his house, that his consent was “not obtained under coercion,”

and that the resulting search was constitutional. Finally, the court found that

Officer McMeans’s testimony was “far more credible . . . than the Defendant’s

witnesses, both the Defendant and Ms. Garza.”

      The jury heard the parties’ evidence and arguments on the issue of

Rodriguez’s guilt and found him guilty. The jury also found that he had used or

had exhibited a deadly weapon during the offense. The trial court assessed his

punishment at sixteen years’ confinement and imposed that sentence.               He

brought this appeal.

                       The Trial Court’s Suppression Ruling

      In his only issue on appeal, Rodriguez argues that the trial court erred by

denying his motion to suppress because (1) the trial court did not make a finding

that the consent was voluntary, and (2) the State did “not show by clear and

convincing evidence that [his] consent to search his home was voluntary.”

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.


                                         6
Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court’s rulings on

(1) questions of historical fact, even if the trial court’s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court’s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the

trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court’s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 818.




                                           7
The trial court found that Rodriguez’s consent was voluntary

      Rodriguez contends that “[t]hough it made other findings, the [trial] court

did not make a finding that Rodriguez’s consent to search was voluntary.” He

asserts that because the trial court “made no finding that the consent was

voluntary,” it “apparently was not.”   Considering the trial court’s ruling in the

context of the complete record, we disagree.

      After the conclusion of the evidentiary portion of the hearing on

Rodriguez’s motion to suppress, his counsel argued that Rodriguez’s consent to

the search of his house was not voluntary. Responding to that argument, the trial

court found that Rodriguez’s “consent was not obtained under coercion” and that

the search was “therefore” constitutional.      We hold that these statements

evidence the trial court’s finding that Rodriguez’s consent was voluntary. See

Meekins v. State, 340 S.W.3d 454, 458–59 (Tex. Crim. App. 2011) (explaining

that the decisive question in a case in which the State relies on consent to justify

a search is whether the consent was voluntary or coerced); Martinez v. State,

500 S.W.3d 456, 470 (Tex. App.—Beaumont 2016, pet. ref’d) (explaining that for

a defendant’s consent to be voluntary, the consent must not be coerced). We

overrule his sole issue to the extent that he contends otherwise.

The trial court’s finding on voluntariness was not erroneous

      Next, Rodriguez argues that the trial court erred by denying his motion to

suppress because the State “failed to show by clear and convincing evidence

that [his] consent to search his home was voluntary.”       He contends that the


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“scenario painted by [Officer McMeans] . . . showed that consent could not have

been voluntary.” More specifically, on appeal, he argues that the search of his

house violated his rights under the Texas constitution.8 The State argues that

the search did not violate Rodriguez’s rights because the record “supports the

trial court’s implicit finding that [his] consent to search his home was voluntary.”

      The Texas constitution protects against unreasonable searches and

seizures. Tex. Const. art. I, § 9 (“The people shall be secure in their persons,

houses, papers and possessions, from all unreasonable seizures or searches

. . . .”). Generally, a search of a person’s home is unconstitutional without a

warrant supported by probable cause. Ramirez v. State, 105 S.W.3d 730, 742

(Tex. App.—Austin 2003, no pet.). But the State may justify a warrantless search

under the Texas constitution by presenting clear and convincing evidence that a

defendant voluntarily gave consent.           See Meekins, 340 S.W.3d at 459;

Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000) (“Consent to

search is one of the well-established exceptions to the constitutional

requirements of both a warrant and probable cause.”); see also Weller v. State,

184 S.W.3d 787, 790 (Tex. App.—Beaumont 2006, no pet.) (stating that “clear

and convincing evidence” is the “degree of proof that will produce in the mind of

      8
        Rodriguez acknowledges that he raised federal and state constitutional
complaints in the trial court, but he states that on appeal, he “does not pursue
this issue under the Fourth Amendment” to the federal constitution. See U.S.
Const. amend IV (“The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated . . . .”).


                                          9
the trier of fact a firm belief or conviction about the truth of the allegations sought

to be established”).

      The voluntariness of consent to a search is a question of fact to be

determined from all the circumstances. Meekins, 340 S.W.3d at 458; Tucker v.

State, 369 S.W.3d 179, 185 (Tex. Crim. App. 2012) (“In determining whether a

defendant’s will was overborne in a particular case, the trial court must assess

the totality of the circumstances from the point of view of an objectively

reasonable person, including words, actions, or circumstantial evidence.”). For

consent to be voluntary and therefore valid, it must not be coerced by explicit or

implicit means. Carmouche, 10 S.W.3d at 331.

      Factors that may affect a court’s determination of voluntariness of a

defendant’s consent include the length of the defendant’s detention before giving

consent; whether the defendant was physically mistreated; whether the police

used violence or threats of violence; whether the police made promises or

inducements; whether the police used deception or trickery; the physical and

mental condition and capacity of the defendant; and whether the police told the

defendant that he had a right to refuse consent. Tucker, 369 S.W.3d at 185;

Norton v. State, No. 02-14-00074-CR, 2015 WL 4966998, at *4 (Tex. App.—Fort

Worth Aug. 20, 2015, no pet.) (mem. op., not designated for publication). “Texas

courts have decided numerous cases where the suspect’s consent was deemed

voluntary when the officers were in plain clothes and identified themselves as

officers before requesting consent to search.” Black v. State, No. 02-10-00157-


                                          10
CR, 2011 WL 3672023, at *4 (Tex. App.—Fort Worth Aug. 18, 2011, no pet.)

(mem. op., not designated for publication). When the record “supports a finding

by clear and convincing evidence that consent to search was free and voluntary,

we will not disturb that finding.” Carmouche, 10 S.W.3d at 331.

      In giving deference to the trial court’s determination that Officer McMeans’s

testimony was credible and that the testimony of Rodriguez and Garza was less

credible—see Amador, 221 S.W.3d at 673—we cannot conclude that the court

erred by finding that the search was constitutional based on Rodriguez’s

voluntary consent. Officer McMeans testified that after Rodriguez told him that

he had narcotics at his home, Rodriguez, with a relaxed demeanor, consented to

a search of the home. He also testified that he never drew his weapon during his

interaction with Rodriguez and that he never threatened Rodriguez.          Officer

McMeans testified that Rodriguez had agreed to sign the consent-to-search form,

that he had explained the form to Rodriguez, and that Rodriguez had

affirmatively indicated that he understood what he was signing. Officer McMeans

further testified that he had informed Rodriguez that he could withdraw consent

at any time but that Rodriguez never did so. Officer McMeans’s testimony does

not show that he made promises that induced the consent or that he engaged in

deception or trickery, nor does it show that Rodriguez had a physical or mental

condition affecting the voluntariness of his consent. These facts that are drawn

from Officer McMeans’s testimony support the trial court’s finding on

voluntariness. See Tucker, 369 S.W.3d at 185; Norton, 2015 WL 4966998, at *4.


                                        11
      Rodriguez appears to contend that his consent was involuntary because

while he had talked with Officer McMeans in English, Officer McMeans gave him

a Spanish-language consent form. But Officer McMeans testified that Rodriguez

told him that he could speak and read in Spanish. Given this testimony and

given other circumstances presented by the record, including Rodriguez’s use of

a Spanish-language interpreter at trial, the trial court could have reasonably

found that Rodriguez had the ability to understand the form and that his signature

on the form was consensual.

      Rodriguez also argues that Officer McMeans’s testimony that Rodriguez

admitted to possessing drugs in the house and voluntarily gave Officer McMeans

consent to search for them is “too fanciful to believe.”    As explained above,

however, the trial court was the sole judge of the witnesses’ credibility. See

Wiede, 214 S.W.3d at 24–25.       We decline to second-guess the trial court’s

acceptance of Officer McMeans’s testimony and its rejection of contradicting

testimony offered by Rodriguez and Garza. See id.; see also McCowan v. State,

Nos. 02-12-00156-CR, 02-12-00157-CR, 2013 WL 4028186, at *2 (Tex. App.—

Fort Worth Aug. 8, 2013, no pet.) (mem. op., not designated for publication)

(“[T]he trial court was uniquely positioned to determine the credibility of the

witnesses. We will not second guess these determinations.”).

      Giving deference to the trial court’s expressed credibility determinations

and considering all of the facts revealed by the record, we cannot conclude that

the trial court erred by finding that Rodriguez voluntarily gave consent to the


                                       12
search of his house and by denying his motion to suppress. See Meekins, 340

S.W.3d at 458; Amador, 221 S.W.3d at 673; Montanez, 195 S.W.3d at 108–09.

We overrule the remainder of his only issue.

                                  Conclusion

      Having overruled Rodriguez’s sole issue, we affirm the trial court’s

judgment.



                                               /s/ Wade Birdwell
                                               WADE BIRDWELL
                                               JUSTICE

PANEL: WALKER, MEIER, and BIRDWELL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 24, 2018




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