Esteban Hernandez v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-24-00437-CR
___________________________

ESTEBAN HERNANDEZ, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1828166

Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION

A jury convicted Appellant Estaban Hernandez of manufacturing or delivering

four grams or more but less than two hundred grams of a controlled substance under

Penalty Group 1—cocaine—and assessed his punishment at life in prison. See Tex.

Health & Safety Code Ann. §§ 481.102(3)(D) (Penalty Group 1), 481.112(d) (Offense:

Manufacture or Delivery of Substance in Penalty Group 1). In accordance with the

jury’s verdict, the trial court sentenced Hernandez, and he appealed.

On appeal, in three points, Hernandez argues that (1) the trial court erred by

denying his motion to suppress the evidence obtained by the warrantless search of his

minivan because the automobile exception did not apply; (2) the trial court erred by

denying his requested charge instruction regarding the minivan’s warrantless search

because whether the deputies acted lawfully depended on disputed factual issues; and

(3) the trial court abused its discretion by denying his motion for mistrial after the State’s

first witness informed the jury that the police used Hernandez’s GPS ankle monitor to

locate him. We hold that the automobile exception applied, no disputed factual issues

justified a jury instruction regarding the minivan’s search, and the trial court’s

instruction to disregard cured any harm caused by the witness’s remark. We overrule all

three points and affirm the trial court’s judgment.

I. Background

Executing a warrant, deputies encountered Hernandez at a convenience store

and, after a brief foot chase, arrested him. Parked in front of the convenience store was

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a minivan that the deputies associated with Hernandez. Although Hernandez did not

have the keys, a deputy found them after retracing Hernandez’s flight path.1

When a deputy approached the minivan, he smelled a strong odor of marijuana

and, from outside the vehicle, he observed a green leafy substance on the minivan’s

center console that he suspected was marijuana. Based on the same observations, and

believing that he had probable cause, a deputy investigator conducted a warrantless

search of the minivan and found, among other items, marijuana, a scale, empty baggies,

small plastic baggies containing a white powdery substance, and an expired insurance

card showing Hernandez and his mother as insured drivers of the minivan. The

investigator testified that the scale and the empty baggies indicated a distributor. Testing

determined that the white powdery substance in the baggies was cocaine and that it

weighed about 43 grams, which the investigator asserted was more than a user amount.

II. Discussion

A. Motion to Suppress

In Hernandez’s first point, he argues that the trial court erred by denying his

motion to suppress—which it did without stating its reasoning—because the

automobile exception did not support the minivan’s warrantless search. Hernandez

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In a video taken after Hernandez’s arrest, Hernandez told a deputy that he was
not aware that he had lost the keys and that if he had been aware, he would have alerted
the officers because the minivan was his mother’s and because he did not want the
officers to break the window; he also stated that his mother had let him drive the
minivan that day.

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argues that because the deputies conducted the search after his arrest and because they

possessed the keys, the State did not have exigent circumstances justifying a warrantless

search.2 At trial, the State argued that it did not need to show exigent circumstances

under the automobile exception. We agree with the State’s position.

1. Standard of Review

We apply a bifurcated standard of review to a trial court’s ruling on a motion to

suppress evidence. State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019).

Because the trial judge is the sole trier of fact and judge of the witnesses’ credibility and

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

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Hernandez also argues that because no one saw him driving the minivan, the
State failed to show that it was readily mobile. The State argues that Hernandez did not
make that argument at trial, so he has not preserved it for appellate review. We agree.
See Arevalo v. State, 675 S.W.3d 833, 845 (Tex. App.—Eastland 2023, no pet.) (“[T]he
complaint and arguments raised on appeal must comport with and correspond to the
objections made, if any, at trial or they are waived.”). At trial Hernandez argued that
exigent circumstances did not exist because the deputies had arrested him and had taken
the keys. Hernandez did not challenge the mobility of the minivan itself. In any event,
because the minivan was in the convenience-store parking lot at the same time as
Hernandez, a factfinder could have reasonably inferred that the minivan did not drive
itself there but that Hernandez had; thus, the vehicle was readily mobile. See Liffick v.
State, 167 S.W.3d 518, 521 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (stating that
the automobile exception applies when the vehicle is found stationary in a place not
regularly used for residential purposes and is readily capable of being used on the
highways (citing, among other cases, California v. Carney, 471 U.S. 386, 392–93, 105 S. Ct.
2066, 2070 (1985) (involving a fully mobile motor home located in a public place))); see
also Keehn v. State, 279 S.W.3d 330, 335–36 (Tex. Crim. App. 2009) (holding that
automobile exception applied to a van parked in driveway: “Carney’s reference to ‘a place
not regularly used for residential purposes’ in no way stands as a per se bar on the
application of the automobile exception to a vehicle parked in the driveway of a private
residence.”).

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App. 2007), we defer almost totally to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on evaluating credibility and

demeanor, but we review de novo application-of-law-to-fact questions that do not turn

on credibility and demeanor, Martinez, 570 S.W.3d at 281.

When the record is silent on the reasons for the trial court’s ruling, or when there

are no explicit fact findings and neither party timely requested findings and conclusions

from the trial court, we infer the necessary fact findings that would support the trial

court’s ruling if the evidence, viewed in the light most favorable to the trial court’s

ruling, supports those findings. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App.

2013); State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006). We then review

the trial court’s legal ruling de novo unless the implied fact findings supported by the

record are also dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.

2. Legal Principles

The Fourth Amendment protects against unreasonable governmental searches

and seizures. U.S. Const. amend. IV; State v. Gonzales, 676 S.W.3d 261, 265 (Tex. App.—

Dallas 2023, no pet.). A warrantless search is generally per se unreasonable unless it falls

within one of the few specifically defined and well-established exceptions to the warrant

requirement. Gonzales, 676 S.W.3d at 265. One example is the automobile exception.

See Marcopoulos v. State, 538 S.W.3d 596, 599 (Tex. Crim. App. 2017); Gonzales,

676 S.W.3d at 265.

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Under that exception, law enforcement may search a vehicle without a warrant

if the vehicle is readily mobile and if the officer has probable cause to believe that it

contains contraband. Keehn, 279 S.W.3d at 335. “The automobile exception . . . does not

require exigent circumstances.” Neal v. State, 256 S.W.3d 264, 283 (Tex. Crim. App.

2008). Accordingly, although exigent circumstances do not exist, provided an officer

has probable cause to believe that a vehicle contains contraband, the officer may search

it. Gonzales, 676 S.W.3d at 265.

3. Application

Hernandez argues that the Texas Court of Criminal Appeals has suggested that

exigent circumstances should sometimes be required even under the automobile

exception. See State v. Elias, 339 S.W.3d 667, 678 (Tex. Crim. App. 2011). Although that

argument has been suggested, Hernandez has not shown us where it has been

successful,3 and Neal remains controlling. See Neal, 256 S.W.3d at 283. The justification

to search an automobile without a warrant “does not vanish once the car has been

immobilized” and does not depend on “a reviewing court’s assessment of the likelihood

in each particular case that the car would have been driven away, or that its contents

3
Elias’s discussion of the automobile exception is dicta; in Elias, the Texas Court
of Criminal Appeals remanded the case so that the court of appeals could consider the
automobile exception. Id. at 677–79. But the court of appeals did not do so. See State v.
Elias, No. 08-08-00085-CR, 2012 WL 4392245, at *1–7 (Tex. App.—El Paso Sept. 26,
2012, pet. ref’d) (not designated for publication) (dealing instead with a collateral issue:
whether the police can search a vehicle incident to an arrest).

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would have been tampered with, during the period required for the police to obtain a

warrant.” Michigan v. Thomas, 458 U.S. 259, 261, 102 S. Ct. 3079, 3080–81 (1982).

Based on the automobile exception, the trial court did not err by denying

Hernandez’s motion to suppress. We overrule his first issue.

B. Denial of Requested Jury Instruction Regarding the Search

In Hernandez’s second point, he asserts that the trial court erred by denying his

requested charge instruction because disputed factual issues determined whether the

deputies acted lawfully when searching his minivan without a warrant. Hernandez

argues that whether the deputies had exigent circumstances justifying a warrantless

search was a factual issue because the deputies had secured the minivan before

performing the search. See Tex. Code Crim. Proc. Ann. art. 38.23(a). Hernandez’s

arguments have no merit.

1. Standard of Review

When reviewing a jury charge, we first determine whether error occurred; if no

error occurred, our analysis ends. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim.

App. 2012); Cox v. State, No. 02-24-00045-CR, 2025 WL 387811, at *6 (Tex. App.—

Fort Worth Jan. 30, 2025, pet. ref’d) (mem. op., not designated for publication). If error

occurred, we then evaluate whether the harm caused by the error was sufficient to

require reversal. Kirsch, 357 S.W.3d at 649; Cox, 2025 WL 387811, at *6.

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2. Legal Principles

Article 38.23 provides that no evidence obtained unlawfully may be admitted

against an accused and that in any case where factual issues determine whether the

evidence was obtained legally, “the jury shall be instructed that if it believes, or has a

reasonable doubt, that the evidence was obtained in violation of the provisions of this

Article, then and in such event, the jury shall disregard any such evidence so obtained.”

Tex. Code Crim. Proc. Ann. art. 38.23(a). Before an Article 38.23 jury instruction is

required, three requirements must be met: (1) the evidence that the jury heard must

raise a factual issue; (2) the evidence on that fact must be affirmatively contested; and

(3) the contested factual issue must be material to the lawfulness of the challenged

conduct in obtaining the evidence. Madden v. State, 242 S.W.3d 504, 509–11 (Tex. Crim.

App. 2007).

The evidence raising a factual issue may be strong, weak, contradicted,

unimpeached, or unbelievable. Chambers v. State, 663 S.W.3d 1, 11 (Tex. Crim. App.

2022) (op. on reh’g). It must also actively conflict with the State’s assertion of a material

fact. Id. at 11–12. When no affirmative evidence raises a contested factual issue or when

the suppression question is one of law, nothing supports an Article 38.23 instruction.

Holmes v. State, 248 S.W.3d 194, 199–200 (Tex. Crim. App. 2008); Johnson v. State,

692 S.W.3d 660, 664 (Tex. App.—Fort Worth 2023, pet. ref’d).

3. Application

The jury had no factual issues to resolve.

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The evidence was undisputed that the deputy smelled marijuana and saw

marijuana, baggies, and scales inside the minivan. For probable-cause purposes, the

deputy did not have to know with absolute certainty that the marijuana was illegal or

that the baggies and scales were being used for illegal purposes. Probable cause deals

with probabilities, not hard certainties. Gonzales, 676 S.W.3d at 268–69; Williams v. State,

No. 14-00-00204-CR, 2001 WL 950700, at *3 (Tex. App.—Houston [14th Dist.] Aug.

23, 2001, pet. ref’d) (not designated for publication) (“Probable cause does not require

absolute certainty.”). Probable cause exists when reasonably trustworthy facts and

circumstances within the officer’s knowledge would lead a reasonably prudent person

to believe that a search will reveal the instrumentality of a crime or evidence pertaining

to a crime. Gonzales, 676 S.W.3d at 268. Because the evidence was not disputed, whether

it amounted to probable cause was a legal question for the trial court. See Traylor v. State,

No. 09-22-00406-CR, 2024 WL 697688, at *7 (Tex. App.—Beaumont Feb. 21, 2024,

no pet.) (mem. op., not designated for publication).

Similarly, the parties did not dispute that the deputies conducted the search after

arresting Hernandez. But as a legal matter, despite the deputies’ conducting the search

after the arrest, the automobile exception applies. See Thomas, 458 U.S. at 261, 102 S. Ct.

at 3080–81; Neal, 256 S.W.3d at 283; Edmond v. State, No. 02-19-00038-CR,

2019 WL 5996988, at *4-5 (Tex. App.—Fort Worth Nov. 14, 2019, no pet.) (mem. op.,

not designated for publication).

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Because the jury had no factual issue to resolve, the trial court did not err by

denying Hernandez’s requested instruction. We overrule his second point.

C. The GPS Ankle Monitor

In Hernandez’s third point, he maintains that the trial court abused its discretion

by denying his motion for mistrial after the State’s first witness informed the jury that

the police used Hernandez’s GPS ankle monitor to locate him. Because the trial court’s

instruction to disregard cured any error, we hold that the trial court did not abuse its

discretion by denying Hernanadez’s motion for mistrial.

1. The Testimony

The State’s first witness, Officer Riki Russell, testified that she was familiar with

Hernandez, that she was aware that Hernandez had an active warrant, and that her

position enabled her to have Hernandez’s location. 4 Officer Russell said that she passed

her information on to the sheriff’s warrant division. The prosecutor then asked her

whether she provided the warrant division with very specific or very general

information about Hernandez’s location, and she responded, “It depends, but it’s

usually very specific to an address where they are currently -- where their GPS is

showing them to be.” Hernandez promptly objected and moved for a mistrial.

After hearing the parties’ arguments, the trial court stated, “I’m going to deny

your motion for mistrial. However, it’s up to you if you want a limiting instruction,

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Officer Russell did not elaborate on what law-enforcement position she held.

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because I will give a limiting instruction if you request that.” Hernandez responded that

he wanted an instruction, and when the trial resumed, the trial court gave the following

instruction to the jury: “[T]he Defense has objected to the last question[,] and the Court

has sustained that objection, and I have the following instruction for you: You are to

disregard the last answer that was given by this witness.”

2. Standard of Review

We review the denial of a motion for mistrial for an abuse of discretion; if the

ruling was within the zone of reasonable disagreement, we must uphold it. Coble v. State,

330 S.W.3d 253, 292 (Tex. Crim. App. 2010); Sly v. State, No. 02-23-00198-CR,

2024 WL 2347676, at *3 (Tex. App.—Fort Worth May 23, 2024, pet. ref’d) (mem. op.,

not designated for publication). A mistrial is warranted only in extreme circumstances

of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim.

App. 2009); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). When reviewing

whether a mistrial was warranted, we balance three factors: (1) the misconduct’s severity

(the magnitude of the testimony’s prejudicial effect); (2) the measures taken to cure the

misconduct (the efficacy of any cautionary instruction by the judge); and (3) the

conviction’s certainty absent the misconduct (the strength of the evidence supporting

the conviction). Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007); Sly,

2024 WL 2347676, at *3; McDonnell v. State, 674 S.W.3d 694, 699 (Tex. App.—Houston

[1st Dist.] 2023, no pet.).

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Ordinarily, a prompt instruction to disregard will cure any error associated with

an improper question and answer. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App.

2000). Courts presume a jury follows an instruction to disregard unless something in

the record contradicts that presumption. Coble, 330 S.W.3d at 292–93; Sly,

2024 WL 2347676, at *3.

3. Analysis

Regarding the first factor, Officer Russell’s comment was not so severe as to

warrant a reversal. She had already told the jury that Hernandez had a warrant and that

her role was to help the warrant division execute the warrant. The jury thus already

knew that Hernandez had a criminal matter of some sort that had resulted in a warrant.

See Redman v. State, No. 01-19-00680-CR, 2021 WL 1133151, at *4 (Tex. App.—

Houston [1st Dist.] Mar. 25, 2021, no pet.) (mem. op., not designated for publication).

Error in admitting improper evidence is harmless if the same or similar evidence is

admitted without objection elsewhere. Tharp v. State, 714 S.W.3d 118, 140 (Tex. App.—

Austin 2024, no pet.).

Regarding the second factor, the trial court instructed the jury to disregard

Officer Russell’s last answer. A prompt instruction to disregard usually cures any error

associated with an improper question and answer. See Ovalle, 13 S.W.3d at 783; Jackson

v. State, 287 S.W.3d 346, 354 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“Unless

clearly calculated to inflame the minds of the jury or of such damning character as to

make it impossible to remove the harmful impression from the jurors’ minds, a

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witness’s reference to a defendant’s criminal history, standing alone, generally is cured

by a prompt instruction to disregard.”). Hernandez argues that the record rebuts the

presumption that the jury followed the trial court’s instruction because during

deliberations, the jury sent a note requesting the dash-cam video that showed a deputy’s

first encountering him at the convenience store. Hernandez maintains that the jury

might have requested the video to see if he was wearing an ankle monitor. Hernandez’s

argument is speculation. See Balderas v. State, 517 S.W.3d 756, 782–91 (Tex. Crim. App.

2016). “In order to presume a motive behind the jury’s question, we would have to

indulge in speculation, and we will not.” Cox v. State, 931 S.W.2d 349, 353 (Tex. App.—

Fort Worth 1996) (involving a jury note asking why the defendant was wearing a

security leg brace), pet. dism’d, improvidently granted, 951 S.W.2d 5 (Tex. Crim. App. 1997).

Moreover, the video does not support that argument. The jury viewed the video during

trial. The jury thus knew that when Hernandez appears in the video, he is far away—

too far away to tell whether he is wearing an ankle monitor. The record thus does not

rebut the presumption that the jurors were able to follow the instruction. See Coble,

330 S.W.3d at 292–93.

And regarding the third and final factor, Officer Russell’s comment did not

undermine the conviction’s certainty. Her comment went to how she was able to locate

Hernandez, not to whether he had committed the indicted offense. And to the extent

she informed the jury of Hernandez’s criminal history, the jury was already aware of the

arrest warrant. See Tharp, 714 S.W.3d at 140; Redman, 2021 WL 1133151, at *4.

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We hold that the trial court did not abuse its discretion by denying Hernandez’s

motion for mistrial and overrule his third point.

III. Conclusion

Having overruled Hernandez’s three points, we affirm the trial court’s judgment.

/s/ Elizabeth Kerr
Elizabeth Kerr
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 26, 2025

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