Alberto Carlos Perez v. the State of Texas

Affirmed and Memorandum Opinion filed August 13, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00262-CR

ALBERTO CARLOS PEREZ, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1766089

MEMORANDUM OPINION

Appellant Alberto Carlos Perez challenges his conviction for burglary of a
habitation. In his first three issues, he challenges the trial court’s denial of his
motions to suppress his statement to law enforcement and evidence gathered from
his apartment. In his last issue, appellant argues that the trial court erred in
refusing an instruction in the jury charge that would have allowed the jurors to
disregard evidence obtained from an illegal search. We hold that the trial court did
not err in denying the motions to suppress or in denying the requested instruction.
Accordingly, we overrule appellant’s issues and affirm the trial court’s judgment.

Background

Detective Blair Cerny with the Memorial Villages Police Department was
dispatched on a call for burglary of a habitation. When he arrived, he saw the back
door was broken and the home was in disarray. The homeowner reported items
missing. Surveillance video from a neighbor’s house showed a suspect vehicle,
which was registered to appellant’s girlfriend, Liliana Castrejon.

Detective Cerny, wearing a body camera that recorded the entire interaction
at issue today, went to Castrejon’s address at an apartment complex and “knocked
on the door repeatedly.” Three other uniformed officers staged themselves around
the perimeter of the unit. There was no answer, but another officer reported seeing
“a male, possibly Hispanic, looking through the back window of the apartment.”

Detective Cerny walked away from the apartment for approximately thirty-
five minutes to talk to other officers and to contact the apartment manager. When
Detective Cerny returned to the apartment, he knocked for the sixth time, saying,
“Police department, open up, we’re not leaving. You might as well come out the
door and open up. . . . You’re only making it tougher on yourself.” Still, there was
no answer.

Detective Cerny was leaving the apartment complex to obtain a search
warrant for the car when he saw Castrejon walking through the parking lot and
approached her. She confirmed that appellant lived with her in the apartment.
Detective Cerny told Castrejon that he needed to speak to appellant. Castrejon
knocked on the door, and appellant opened it.

2
Appellant stepped outside. Detective Cerny did not arrest him or place him
in handcuffs. Detective Cerny did not tell appellant that he could not leave.
Detective Cerny and appellant spoke for “quite some time.” Detective Cerny
informed appellant “that when you use a car in the course of a crime, especially a
felony, that in Texas it is subject to forfeiture.” Detective Cerny denied telling
appellant this information in an effort to make him talk to law enforcement.
Appellant appeared to Detective Cerny to be concerned or confused as to what was
going to happen that day. He repeatedly asked if he was going to go to jail, and
Detective Cerny answered, “I can’t tell you that.” However, Detective Cerny
testified, and the video reflects, that he told appellant “multiple times” that he was
not under arrest. Detective Cerny told appellant that if he cooperated and the
officer retrieved the stolen items, then Detective Cerny would not arrest appellant
that day, so long as there was “nothing serious” in appellant’s record, which the
officer had not yet checked.

Detective Cerny told appellant, “I have all the proof to show it was you in
there,” committing the burglary. Detective Cerny testified that he told appellant
that he had “probable cause” because he wanted appellant to know that it was in
his best interest to speak to police.

Detective Cerny asked appellant to go to the police station to speak about the
investigation, and appellant agreed. Detective Cerny did not threaten to arrest
appellant if he refused to go to the station.

Appellant sat in the front passenger seat as Detective Cerny drove to the
police station. During the drive, Detective Cerny did not tell appellant that he was
required to speak to the officer and did not tell appellant that he would be arrested
if he went to the station. Detective Cerny reminded appellant that he “chose” to go
to the station and that appellant could go back to the apartment at any time. Before

3
reaching the station, appellant admitted to Detective Cerny that he was involved in
the burglary and that he still had possession of some of the stolen items. Detective
Cerny testified, “you know, I’d already gave him my word that he wasn’t going to
be arrested so -- and there was no point in us going to the police department to
speak with him any further, so I turned around and we went back to his apartment.”

Upon arriving at the apartment, Detective Cerny did not arrest appellant.
Appellant led Detective Cerny into the apartment and showed the officer the stolen
property. Detective Cerny then ran appellant’s name and date of birth “through the
system” and discovered that appellant had an outstanding warrant. At that point,
Detective Cerny arrested appellant.

Detective Cerny testified that appellant was “able to leave up to the point at
the very end when [the officer] ran his driver’s license and [discovered] he had a
warrant that [Detective Cerny] could not allow him to leave on.”

Appellant was indicted for burglary of a habitation. Prior to trial, he filed
two motions to suppress, one regarding evidence from the search of the apartment
and another regarding the statement he gave to police. Detective Cerny testified at
the suppression hearing and the State introduced the video from the officer’s body-
worn camera. The trial court denied the motions without making any findings of
fact.

Appellant requested a jury charge instruction permitting the jury to disregard
the evidence seized in the search of the apartment if the jury concluded the
evidence was illegally obtained. The trial court denied the request.

The jury found appellant guilty as charged in the indictment and assessed
punishment of thirty years’ confinement in the Texas Department of Criminal
Justice, Institutional Division. Appellant timely appealed.

4
Analysis

In three issues, appellant challenges the trial court’s denial of his motions to
suppress. In a fourth issue, appellant argues that the trial court erred by denying
his request to include an instruction in the jury charge regarding evidence obtained
during an illegal search.

A. Motions to Suppress

1. Standard of review

An appellate court reviews a trial court’s ruling on a motion to suppress for
an abuse of discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010).
We afford almost total deference to the trial court’s findings of historical facts that
are reasonably supported by the record and to its resolution of mixed questions that
turn on credibility or demeanor when reviewing a ruling on a motion to suppress.
Guzman v. State, 955 S.W.2d 85, 87-91 (Tex. Crim. App. 1997). We review de
novo a trial court’s legal conclusions and its resolution of mixed questions that do
not turn on credibility or demeanor. Id.

2. Was the encounter custodial?

In his first issue, appellant argues that he was in custody when he admitted
to Detective Cerny his role in the burglary. Because he was not given Miranda
warnings, appellant continues, his recorded statement should have been
suppressed.

The Fifth Amendment to the United States Constitution commands that no
person “shall be compelled in any criminal case to be a witness against himself[.]”
U.S. Const. amend. V. The warnings articulated by the United States Supreme
Court in Miranda were established to safeguard an uncounseled individual’s
constitutional privilege against self-incrimination during custodial interrogation.

5
Miranda v. Arizona, 384 U.S. 436, 442-57, 467-79 (1966). The Supreme Court
has defined “custodial interrogation” as “questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.” Id. at 444. Unwarned statements
obtained as a result of custodial interrogation may not be used as evidence by the
State in a criminal proceeding during its case-in-chief. Id.

When considering “custody” for Miranda purposes, we apply a “reasonable
person” standard—“[a] person is in ‘custody’ only if, under the circumstances, a
reasonable person would believe that his freedom of movement was restrained to
the degree associated with a formal arrest.” Dowthitt v. State, 931 S.W.2d 244,
254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 322,
325 (1994)). Our custody inquiry also includes an examination of all the objective
circumstances surrounding the questioning. Id. at 255. The subjective belief of
law enforcement officials about whether a person is a suspect does not factor into
our custody determination unless an official’s subjective belief was somehow
conveyed to the person who was questioned. Stansbury, 511 U.S. at 323-25.

Article 38.22 of the Texas Code of Criminal Procedure governs the
admissibility of statements made by a defendant during custodial interrogation in a
criminal proceeding. Tex. Code Crim. Proc. art. 38.22. Section 3 provides that an
oral statement is admissible against a defendant in a criminal proceeding if, among
other things: (1) the statement was electronically recorded; (2) the defendant was
warned in accordance with section 2(a) before the statement was made and the
warnings are included on the recording; and (3) the defendant “knowingly,
intelligently, and voluntarily” waived the rights communicated to him by the
warnings. Id. art. 38.22, § 3(a)(1)-(2). The warnings provided in section 2(a) are
virtually identical to the Miranda warnings, id. art. 38.22, §§ 2(a), 3(a)(2), with

6
one exception—the warning that an accused “has the right to terminate the
interview at any time” as set out in section 2(a)(5) is not required by Miranda. See
Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). As with the
Miranda warnings, the warnings in section 2(a) of article 38.22 are required for
admissibility of an accused’s statement only when there is custodial interrogation.
Tex. Code Crim. Proc. art. 38.22, §§ 3(a), 5. Our construction of “custody” for
purposes of article 38.22 is consistent with the meaning of “custody” for purposes
of Miranda. Wicker v. State, 740 S.W.2d 779, 785 (Tex. Crim. App. 1987).

At trial, the defendant bears the initial burden of proving that a statement
was the product of custodial interrogation:

The mere filing of a motion to suppress does not thrust a burden on
the State to show compliance with Miranda . . . warnings unless and
until the defendant proves that the statements he wishes to exclude
were the product of custodial interrogation. Thus, the State has no
burden at all unless ‘the record as a whole clearly establishe[s]’ that
the defendant’s statement was the product of custodial interrogation
by an agent for law enforcement. It is the defendant’s initial burden to
establish those facts on the record.

Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005) (quoting Paez v.
State, 681 S.W.2d 34, 36 (Tex. Crim. App. 1984)).

A trial judge’s ultimate custody determination presents a mixed question of
law and fact. Thompson v. Keohane, 516 U.S. 99, 112-13 (1995). Therefore, as
discussed above, we afford almost total deference to a trial judge’s ruling when the
questions of historical fact turn on credibility and demeanor. Ripkowski v. State,
61 S.W.3d 378, 381 (Tex. Crim. App. 2001) (citing Guzman v. State, 955 S.W.2d
85, 89 (Tex. Crim. App. 1997)). Conversely, when the questions of historical fact
do not turn on credibility and demeanor, we will review a trial judge’s custody
determination de novo. Id. at 381-82 (citing Guzman, 955 S.W.2d at 89).

7
Additionally, when a trial judge denies a motion to suppress and does not sign
findings of fact on a specific issue, the evidence is viewed “in the light most
favorable to the trial court’s ruling” and we “assume that the trial court made
implicit findings of fact that support its ruling as long as those findings are
supported by the record.” State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.
2000).

In Dowthitt, the Court of Criminal Appeals outlined four general situations
that may constitute custody: (1) the suspect is physically deprived of his freedom
of action in any significant way; (2) a law enforcement officer tells the suspect that
he cannot leave; (3) law enforcement officers create a situation that would lead a
reasonable person to believe his freedom of movement has been significantly
restricted; or (4) there is probable cause to arrest, and law enforcement officers do
not tell the suspect that he is free to leave. Dowthitt, 931 S.W.2d at 255.

For the first three situations, the restriction upon freedom of movement must
amount to the degree associated with an arrest as opposed to an investigative
detention. Id. For the fourth situation, the officer’s knowledge of probable cause
must be manifested to the suspect, and custody is established only if the
manifestation of probable cause, combined with other circumstances, would lead a
reasonable person to believe he is under restraint to a degree associated with an
arrest. Id.; Stansbury, 511 U.S. at 325. An officer’s subjective intent to arrest the
suspect is irrelevant unless that intent is communicated or otherwise manifested to
the suspect. Dowthitt, 931 S.W.2d at 254 (citing Stansbury, 511 U.S. at 324-25
(police knowledge or beliefs bear on the custody issue only if they are conveyed to
the suspect)). To evaluate whether a reasonable person in the suspect’s situation
would have felt that there was a restraint on his freedom to a degree associated
with arrest, the record must establish the circumstances manifested to and

8
experienced by him. State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012)
(“[O]nly the objective circumstances known to the detainee should be considered
in deciding what a reasonable person in his position would believe.”); see also
Thompson, 516 U.S. at 113 (“[I]f encountered by a ‘reasonable person,’ would the
identified circumstances add up to custody[?]”); Berkemer v. McCarty, 468 U.S.
420, 442 (1984) (“[T]he only relevant inquiry is how a reasonable man in the
suspect’s position would have understood his situation.”).

Appellant argues that he was in custody because his freedom of movement
was significantly restricted and because Detective Cerny had probable cause to
arrest him and did not inform appellant he could leave—i.e., the third and fourth
Dowthitt scenarios. Appellant contends that, “[a]lthough Cerny did not use the
words, ‘you cannot leave,’” while appellant was inside the apartment, Detective
Cerny “made it very clear that Appellant could not get away from law enforcement
because they were not going to leave.” Appellant also points to Detective Cerny’s
statement that he “ha[d] enough” evidence to take appellant to jail.

The trial court did not conclude explicitly that appellant was not in custody;
however, the court found certain facts pertaining to the voluntariness of appellant’s
statement, see infra, some of which are also relevant to the custody issue. We
review the record to determine if there is evidence supporting actual or implied
findings in favor of the court’s ruling. See State v. Gray, 158 S.W.3d 465, 467
(Tex. Crim. App. 2005) (we defer to explicit findings so long as they are supported
by the record); Ross, 32 S.W.3d at 855; see also Tran v. State, No. 01-11-00141-
CR, 2012 WL 3133925, at *3 (Tex. App.—Houston [1st Dist.] Aug. 2, 2012, pet.
ref’d) (mem. op., not designated for publication) (applying light-most-favorable
standard to record and assuming implicit findings to support suppression ruling
even though trial court entered explicit findings of facts). Here, the record—

9
including Detective Cerny’s testimony at the suppression hearing and the video
recording from his body-worn camera—establishes that:

• Detective Cerny repeatedly told appellant that he was not under arrest
but that cooperation would be beneficial.

• Neither Detective Cerny nor any other officer used physical force or
threats of physical force when interacting with appellant. Appellant
was not physically restrained or placed in handcuffs.

• Detective Cerny told appellant that he would not be arrested that day.

• Appellant voluntarily accompanied Detective Cerny on the drive to
the police station, during which he confessed to the offense.

• Upon hearing appellant’s confession, Detective Cerny returned
appellant to his apartment.

• Only after discovering the outstanding warrant did Detective Cerny
arrest appellant.

The trial court found the following facts relevant to custody:

2. Based on this Court’s assessment of Cerny’s demeanor and
testimony in the suppression hearing and at trial, as well as this
Court’s review of Cerny’s body-worn camera video—admitted as
State’s Exhibit 32—this Court finds that Cerny’s testimony was
truthful and credible in all respects.
7. During this knocking, neither Cerny nor any other officer at the
scene ever drew their firearms, or threatened to or actually used any
amount of force against the apartment door.
9. Cerny spoke to Castrejon, who told him that Defendant—her
boyfriend—was inside the apartment and that he had driven her
Impala that morning. Cerny told Castrejon that he needed to speak to
Defendant and then walked with her to her apartment door, where she
knocked and called to Defendant to open the door. Defendant opened

10
the door in response to Castrejon and Cerny advised him that he
needed to speak to him about an investigation.
10. Defendant agreed to come outside to talk to Cerny, and he and
Cerny then had a relatively lengthy conversation about the burglary,
Cerny’s investigation, and Cerny’s desire that Defendant cooperate
with Cerny by providing a statement about Defendant’s role in the
crime, and by helping Cerny recover the property stolen from the
complainant’s residence.
11. During this conversation, Cerny used a conversational, non-
threatening tone with Defendant. Cerny never handcuffed Defendant,
never told Defendant that he was under arrest or was not free to leave,
and never displayed his firearm or otherwise made any show of force
towards Defendant. Other officers at the scene drew closer to Cerny
and Defendant during their conversation, but still stood far enough
away to not be threatening, kept their firearms holstered, made no
move to restrain Defendant, and were uninvolved in Cerny’s and
Defendant’s conversation.
12. During their conversation, Cerny repeatedly advised Defendant
that he was not under arrest and that it was Defendant’s choice
whether or not to cooperate with Cerny’s investigation in any
capacity. Though Cerny was persistent in his encouragement that
Defendant cooperate, he did not threaten Defendant with arrest if
Defendant declined to do so. Rather, Cerny repeatedly told Defendant
that if he chose not to accompany Cerny to the police station and
provide a statement, Cerny would leave the apartment complex and
continue his investigation in other ways, such as by seeking warrants.
13. Defendant hesitated and equivocated during his conversation with
Cerny, concerned that he was going to go to jail. However, Defendant
nonetheless eventually agreed to accompany Cerny to the police
station to give a statement. At that point, Cerny patted Defendant
down for weapons but still did not handcuff or otherwise restrain him,
and then allowed him to sit in the front passenger seat of Cerny’s
vehicle.
14. Cerny did not read Defendant Miranda and Texas Code of
Criminal Procedure Article 38.22 warnings at any time during their
encounter.
15. During their drive to the police station, Cerny and Defendant
discussed the stolen property and Defendant confessed to committing
11
the burglary. Defendant also told Cerny he would show him were
some of the stolen property was inside Castrejon’s apartment. Cerny
then advised Defendant that, per their previous conversation, Cerny
was not going to arrest Defendant that day, but would instead pursue
an arrest warrant, which Defendant would have to answer to at a later
date. Cerny then turned the car around and drove Defendant back to
Castrejon’s apartment.

The trial court impliedly concluded that appellant was not in custody when
he confessed to committing the offense. Appellant challenges the trial court’s
determination of custody. We conclude that the trial court’s express and implied
findings or conclusions that appellant was not in custody have evidentiary support.

When a person voluntarily accompanies police officers, who are then only in
the process of investigating a crime, to a certain location and he knows or should
know that the police officers suspect he may have committed or may be implicated
in committing the crime, the person is not restrained in his freedom of movement.
Nickerson v. State, 312 S.W.3d 250, 256 (Tex. App.—Houston [14th Dist.] 2010,
pet. ref’d); see also Ard v. State, 418 S.W.3d 256, 261 (Tex. App.—Houston [14th
Dist.] 2013, no pet.) (same). In that situation, the suspect is not in custody.
Nickerson, 312 S.W.3d at 256-57 (holding officers’ entry into suspect’s home and
suspect’s voluntarily accompaniment to station with officers who never drew
weapons or put suspect in handcuffs did not amount to custodial interrogation
because appellant was “never physically deprived of his freedom in any significant
way, . . . told he could not leave [or] restricted in his movement to amount to an
arrest”).

Although Detective Cerny told appellant there was cause to arrest him for
burglary, the other objective circumstances support the trial court’s conclusion that
appellant was not, in fact, in custody. Significantly, Detective Cerny repeatedly
told appellant that he was not under arrest, even when essentially conveying to

12
appellant the officer’s belief of appellant’s complicity. See Oregon v. Mathiason,
429 U.S. 492, 493-96 (1977) (holding defendant was not in custody when he
confessed to burglary during voluntary questioning at police station; although
officer relayed information to defendant regarding his involvement and stated his
truthfulness might be considered by the district attorney or judge, officer also told
defendant he was not under arrest, and he was allowed to leave after confession);
Randall v. State, No. 14-06-00468-CR, 2008 WL 5262738, at *4-6 (Tex. App.—
Houston [14th Dist.] Dec. 18, 2008, no pet.) (mem. op., not designated for
publication) (“Despite the officers’ manifestation of probable cause to appellant
during the second part of the interview and their failure to explicitly inform
appellant he was free to leave, we conclude the fourth Dowthitt scenario was not
satisfied.”).

We conclude the evidence is sufficient to support the trial court’s express
and implied findings that appellant did not establish that he was in custody under
the third and fourth Dowthitt scenarios. We overrule appellant’s first issue.

3. Was appellant’s statement voluntary?

In his second issue, appellant argues that the trial court erred in denying the
motion to suppress because his statement to Detective Cerny was not voluntary.

Under the Due Process Clause and articles 38.21 and 38.22 of the Texas
Code of Criminal Procedure, a confession must be voluntary to be admissible. See
U.S. Const. amend. XIV; Tex. Code Crim. Proc. arts. 38.21, 38.22. A statement is
considered involuntary if: (1) police engaged in objectively coercive activity; (2)
the statement is causally related to the coercive government misconduct; and (3)
the objectively coercive activity overbore the defendant’s will. Lopez v. State, 610
S.W.3d 487, 494 (Tex. Crim. App. 2020). The Due Process Clause protects
suspects from police overreaching; it does not protect people from themselves or
13
other private actors, and absent all of the above factors, there is no due process
violation. Oursbourn v. State, 259 S.W.3d 159, 170 (Tex. Crim. App. 2008)
(citing Colorado v. Connelly, 479 U.S. 157, 164 (1986)). Because police
overreach is a predicate to due-process relief, and appellant’s state-law claim is
based on only police overreach, the threshold issue is whether Detective Cerny
objectively engaged in coercive tactics.1

Of the express findings excerpted above, findings 11-15 are also relevant to
the voluntariness question.2 The court also made the following conclusions:

6. Here, Cerny persuaded and coaxed Defendant to cooperate and
provide a statement, including by confronting Defendant with the
difficult circumstances that he was in and by telling Defendant and
Castrejon that Cerny had firm evidence that Defendant was involved
in the burglary. However, Cerny’s efforts to convince Defendant to
cooperate did not overcome Defendant’s free will or compel
Defendant to make a statement.
7. Rather, Cerny repeatedly explained to Defendant that: while it
might benefit Defendant to cooperate, it was Defendant’s choice
whether or not to do so; Defendant was not required to provide a
statement; and, if Defendant chose not to cooperate, Cerny would
leave and simply continue his investigation via alternative means.
Further, neither Cerny nor any other officer displayed their firearms,
or threatened or used any force whatsoever against Defendant at any
time.
8. Accordingly, under the totality of the circumstances, Defendant’s
statement was made freely and voluntarily, without police compulsion
1
A defendant can prove that his confession was involuntary based on his state of mind
even in the absence of police overreach under articles 38.21 and 38.22, but appellant’s only
complaint on appeal is police overreach so we confine our analysis to that question. Lopez, 610
S.W.3d at 496 n.5
2
Although the trial court initially did not make any findings of fact after denying
appellant’s motions to suppress, we abated the appeal for the trial court to sign written findings
of fact on the voluntariness issue, and the court complied. Vasquez v. State, 411 S.W.3d 918,
920 (Tex. Crim. App. 2013) (“We hold that written findings are required in all cases concerning
voluntariness.”).

14
or persuasion to a degree that overcame Defendant’s free will.

After reviewing the reporter’s record of the suppression hearing and the
video of the interaction between Detective Cerny and appellant, and mindful that
we view the record in the light most favorable to the trial court’s ruling, we
conclude that Detective Cerny did not engage in objectively coercive conduct. The
record supports the trial court’s findings that appellant voluntarily went to the
police station to give a statement; that he was told that he was not under arrest; and
that he was not placed in handcuffs. See Cameron v. State, 630 S.W.3d 579, 595
(Tex. App.—San Antonio 2021, no pet.) (defendant’s statement was voluntary
when she voluntarily went to the police station for her interview; she was
repeatedly told she was not under arrest and would be going home; and she was not
handcuffed); Hernandez v. State, 421 S.W.3d 712, 719-23 (Tex. App.—Amarillo
2014, pet. ref’d) (holding that police officer’s statements that the defendant faced
incarceration, that she could be separated from her children, and that cooperation
could result in leniency were not sufficiently coercive to render her statements
involuntary).

Appellant asserts that Detective Cerny “threatened” appellant by making
statements such as:

• “You’re only making it tougher on yourself.”

• “[I]f you make it tough on me, . . . it’s not going to look good on you,
brother.”

• “I don’t think you need to put [Castrejon] through all that, given she’s
pregnant.”

• “If you refuse to talk to me, and you refuse to do anything, I’m going
to continue my investigation. I’m not going to tell you what it’s going

15
to lead to. But I can tell you I’m not leaving. And I can tell you it
involves your car and your house. So I’m going nowhere, so you can
either work, try to help yourself out, or I’ll continue on, and we’ll get
a warrant for your arrest. I’ll pick you up, and then whenever you get
out, you get out. Hopefully, your wife hasn’t had her baby.”

Detective Cerny also implied that Castrejon’s vehicle would be seized and
that Castrejon herself might face charges if appellant did not cooperate. However,
none of the above statements show that Detective Cerny threatened appellant, only
that the officer told appellant “how things might unfold.” Lopez, 610 S.W.3d at
497. The car involved in the offense belonged to Castrejon; Detective Cerny’s
reference to its potential seizure and to Castrejon’s potential liability “accurately
reflect[ed] the state of the investigation.” Id.

Moreover, Detective Cerny’s comments that he would not take appellant to
jail that day and that things would be easier for appellant if he cooperated do not
constitute police overreaching. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim.
App. 1993) (observing that general statements regarding how a confession may
sometimes result in leniency do not render a confession involuntary); Herrera v.
State, 194 S.W.3d 656, 660 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d)
(holding investigator’s statement, “We can talk to the D.A., get you an offer, if you
help us,” not specific enough to influence appellant to speak untruthfully); Ramirez
v. State, 76 S.W.3d 121, 126 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)
(“Appellant has failed to demonstrate that the party in authority positively and
unequivocally promised leniency in return for a confession.”).

Because the State met its burden to establish that appellant made his
statement voluntarily, we hold the trial court did not abuse its discretion when it
denied appellant’s motion to suppress. We overrule appellant’s second issue.

16
4. Was appellant’s implied consent to search Castrejon’s apartment
voluntarily given?

In his third issue, appellant argues that the evidence recovered from his
apartment should have been suppressed because the search was conducted without
a warrant and Detective Cerny did not have consent to enter the apartment.

The Fourth Amendment protects individuals against unreasonable searches
and seizures. U.S. Const. amend IV. “[S]earches conducted outside the judicial
process, without the prior approval by judge or magistrate, are per se unreasonable
under the Fourth Amendment—subject to only a few specifically established and
well delineated exceptions.” Mincey v. Arizona, 437 U.S. 385, 390 (1978). One
established exception is a search conducted with the person’s consent. Schneckloth
v. Bustamonte, 412 U.S. 218, 219 (1973); Meekins v. State, 340 S.W.3d 454, 458
(Tex. Crim. App. 2011).

A person’s consent to search can be communicated in various ways,
“including by words, action, or circumstantial evidence showing implied consent.”
Meekins, 340 S.W.3d at 458. Texas courts have held that when a law enforcement
officer requests consent to search or otherwise puts the question to the detainee in a
way that does not indicate command or compulsion, a wordless action or gesture
can be sufficient to show consent. See Kendrick v. State, 93 S.W.3d 230, 234
(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).

“But the Fourth and Fourteenth Amendments require that a consent not be
coerced, by explicit or implicit means, by implied threat or covert force.”
Schneckloth, 412 U.S. at 228; see also Meekins, 340 S.W.3d at 459. Whether
consent was voluntary is determined from the totality of all the circumstances.
Schneckloth, 412 U.S. at 221; Meekins, 340 S.W.3d at 458-59. In determining the
voluntariness of a person’s consent, courts review the totality of the circumstances

17
of a particular police-citizen interaction from the point of view of the objectively
reasonable person, without regard for the subjective thoughts or intents of either
the officer or the citizen. Meekins, 340 S.W.3d at 459. The ultimate question is
whether the person’s “will ha[s] been overborne and his capacity for self-
determination, critically impaired” such that his consent to search cannot have
been voluntary. Id. Consent is not rendered involuntary merely because the
accused is under arrest. Johnson v. State, 68 S.W.3d 644, 653 (Tex. Crim. App.
2002).

While in the car en route to the police station, appellant confessed to the
offense and offered to return to Detective Cerny the property that appellant still
had in his possession or control. Detective Cerny said he would take appellant
back the apartment and pursue an arrest warrant that appellant would “have to
face” at a later date.

When Detective Cerny and appellant returned to the apartment complex, the
officer said, “We’ll walk in, we’ll get it, and that’s it, alright? Then I’ll get your
information and I’m gone.” Appellant made no verbal reply, but instead led
Detective Cerny into the apartment, without making any indication that Detective
Cerny could not accompany him inside or that he did not want Detective Cerny to
enter. Inside the apartment, appellant gave the officer a game system and two
televisions, all of which belonged to the complainant. Thus, the record establishes
that appellant impliedly consented to Detective Cerny entering the apartment,
where appellant surrendered the stolen goods. The record is also devoid of
evidence showing that appellant’s implied consent was not voluntarily given. See
Nanny v. State, No. 03-16-00196-CR, 2016 WL 7046818, at *8 (Tex. App.—
Austin Nov. 30, 2016, no pet.) (mem. op., not designated for publication)
(defendant gave implied consent when officer asked for permission to enter the

18
home and defendant agreed to the request by nodding his head and by opening the
door and letting the officer inside); see also Valtierra v. State, 310 S.W.3d 442,
448 (Tex. Crim. App. 2010) (explaining that consent to search “may be given
orally or by action, or shown by circumstantial evidence”); Gallups v. State, 151
S.W.3d 196, 201 (Tex. Crim. App. 2004) (stating that consent to enter home could
be inferred from defendant’s action of motioning officer to come forward and enter
home).

We overrule appellant’s third issue.

B. Denial of Jury Instruction

In his fourth and final issue, appellant raises a complaint of jury-charge
error. Appellant requested a jury instruction that would allow the jurors to
disregard evidence recovered during the “illegal” search of appellant’s apartment.
The trial court denied appellant’s requested instruction.

Article 38.23(a) provides that evidence obtained in violation of the
Constitution or laws of the United States or Texas may not be admitted in a
criminal case. See Tex. Code Crim. Proc. art. 38.23(a); Hamal v. State, 390
S.W.3d 302, 306 (Tex. Crim. App. 2012). When evidence presented before the
jury raises a question of whether the fruits of a police-initiated search or arrest
were illegally obtained, “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.” See Tex. Code Crim. Proc. art. 38.23(a); Robinson v. State, 377 S.W.3d
712, 719 (Tex. Crim. App. 2012).

To be entitled to an article 38.23(a) instruction, the defendant must show
that: (1) an issue of historical fact was raised in front of the jury; (2) the fact was

19
contested by affirmative evidence at trial; and (3) the fact is material to the
constitutional or statutory violation that the defendant has identified as rendering
the particular evidence inadmissible. Robinson, 377 S.W.3d at 719; Madden v.
State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). When a disputed, material
issue of fact is successfully raised, the terms of the statute are mandatory, and the
jury must be instructed accordingly. Robinson, 377 S.W.3d at 719.

Evidence to justify an article 38.23(a) instruction can derive “‘from any
source,’” no matter whether “‘strong, weak, contradicted, unimpeached, or
unbelievable.’” Id. (quoting Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App.
2004)). But the evidence must raise a “‘factual dispute about how the evidence
was obtained.’” Id. (quoting Garza, 126 S.W.3d at 85). When the issue raised by
the evidence at trial does not involve controverted historical facts, but only the
proper application of the law to undisputed facts, that issue is properly left to the
determination of the trial court. Id.

Appellant argues that there are factual questions whether appellant provided
valid consent or whether Detective Cerny had implied consent to search the
apartment. These are not disputed facts; these are disputed conclusions. The facts
underlying the consent issue are undisputed. There was no dispute for the jury to
resolve concerning the material historical facts underlying Detective Cerny’s entry
into appellant’s apartment. Rather, the entirety of Detective Cerny’s and
appellant’s interaction was captured on video and the officer’s testimony was
wholly consistent with what was depicted in the video, even during cross-
examination. Thus, the undisputed factual evidence presented only a question of
law as to the legality of Detective Cerny’s undisputed conduct, which was properly
reserved for the trial court to determine. See id. at 718-22 (concluding that an
article 38.23(a) instruction was not warranted when the evidence did not establish a

20
factual dispute, but rather only a dispute as to the legal significance of undisputed
facts, which is “a dispute that juries are not authorized to resolve”); Tollett v. State,
422 S.W.3d 886, 897-98 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).

We overrule appellant’s fourth issue.

Conclusion

Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.

/s/ Kevin Jewell
Justice

Panel consists of Justices Jewell, Bourliot, and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b)

21