In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-25-00281-CR
LEE MARVIN RAINS, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 90th District Court
Young County, Texas
Trial Court No. CR12448
Before Sudderth, CJ; Womack and Wallach, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
After the trial court denied his motion to suppress evidence seized in a search of
his person, Appellant Lee Marvin Rains pleaded guilty to the state-jail felony offense of
possession of less than one gram of a controlled substance, enhanced by two previous
felony convictions. See Tex. Health & Safety Code § 481.115; Tex. Penal Code § 12.425.
The trial court sentenced him to 20 years’ confinement and a $5,000 fine, and he
appealed. In a single issue, Rains complains that the trial court erred by denying his
motion to suppress. We will affirm.
I. BACKGROUND
In April 2024, Rains was driving with two passengers in his vehicle. Graham
Police Officer David Lipsey stopped Rains for speeding, and Sergeant Christopher Post
arrived as backup soon thereafter. Officer Lipsey asked Rains’s two passengers to exit
the vehicle; Sergeant Post asked Rains to exit. When Sergeant Post asked Rains if he
had any weapons, Rains raised his hands and said he did not. Sergeant Post then asked
Rains, “Do you mind if I search you?” Rains responded, “Yeah,” 1 positioned himself
1
Although the testimony from Rains and Sergeant Post was conflicting, these quotations and this timeline of events are taken from the trial court’s findings of fact and from Sergeant Post’s bodycam video. At the first hearing on Rains’s motion to suppress, Rains testified that no one had asked permission to search him when he exited his vehicle. Sergeant Post agreed with the State’s characterization that he asked Rains, “Can I pat you down or can I search you?” At a later hearing, Sergeant Post testified that “as soon as [Rains] [got] out I [did] request for consent and ask[ed him] if he mind[ed] if I search[ed] him. . . . He immediately assumed a position to be searched and said, Yeah.”
2
facing away from Sergeant Post, and raised his hands in the air. Sergeant Post
responded, “Thank you,” reached into Rains’s front pocket, and immediately removed
a small bag containing a white, crystalline substance. When Sergeant Post ordered Rains
to put his hands behind his back, Rains brought his hand down to tuck in his pocket,
and Sergeant Post handcuffed him.2 Rains was charged by indictment with possession
of a controlled substance—methamphetamine—enhanced by two previous felonies.
Before trial, Rains filed a motion to suppress the evidence Sergeant Post
discovered in the search. The trial court heard the motion and testimony from Rains
and Sergeant Post, viewed Sergeant Post’s bodycam video, and then denied the motion
to suppress.
Rains moved for reconsideration of the motion to suppress, and the trial court
held a second hearing and heard additional testimony from Sergeant Post. The trial
court denied the motion to reconsider. Rains pleaded guilty to the offense and true to
the two enhancements, the trial court sentenced him, and he then filed this appeal.
2
Rains states that he tried to cover his pockets with his hands after Sergeant Post removed the baggie from his pocket, effectively withdrawing consent. However, this is unsupported by the video or by the trial court’s findings of fact. In the video, as Sergeant Post put his hands into Rains’s pocket, Rains held his hands at or above his shoulders. Sergeant Post reached into Rains’s front, right pocket and pulled out a blue baggie. Sergeant Post then instructed Rains to put his hands behind his back, and Rains instead appeared to tuck something into his pocket. Sergeant Post then moved Rains’s hands behind his back and held them while he retrieved handcuffs and put them on Rains.
3
II. 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.
App. 2007), we defer almost totally to the trial court’s rulings on questions of historical
fact and on 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.
Under the Fourth Amendment, a search conducted without a warrant is per se
unreasonable subject to only a few specifically established exceptions. Meekins v. State,
340 S.W.3d 454, 458 (Tex. Crim. App. 2011). One of those exceptions is a search
conducted with the person’s consent. Id. Under Texas law, the State must prove
voluntary consent by clear and convincing evidence. State v. Weaver, 349 S.W.3d 521,
526 (Tex. Crim. App. 2011). The consent must be positive and unequivocal, and there
must not be any duress or coercion, actual or implied. Id. Consent is not established
by showing mere acquiescence to lawful authority. Carmouche v. State, 10 S.W.3d 323,
331 (Tex. Crim. App. 2000). The validity of an alleged consent to search is a question
of fact to be determined from the totality of the circumstances. Weaver, 349 S.W.3d at
526. “Consent to search is not to be lightly inferred.” Meeks v. State, 692 S.W.2d 504,
4
509 (Tex. Crim. App. 1985); Corea v. State, 52 S.W.3d 311, 316 (Tex. App.—Houston
[1st Dist.] 2001, pet. ref’d).
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 findings. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013).
We 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. State v. Kelly,
204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
III. DISCUSSION
In his sole issue on appeal, Rains argues that he never consented to Sergeant
Post’s search, or, alternatively, that any consent he gave was invalid because it was given
in the face of coercion.
Rains argues that he denied Sergeant Posts’ verbal request for permission to
search him by saying that, “yeah,” he did mind being searched and did not consent.
However, the Court of Criminal Appeals has held that an affirmative answer to the
question, “do you mind if I search,” does not necessarily convey a refusal of permission.
See Meekins, 340 S.W.3d at 461 (holding that a similar exchange between officer and
suspect supported an implied finding of consent to search, based on the circumstances).
A person may give consent to be searched through words, actions, or circumstantial
evidence showing implied consent. Id. at 458. To determine whether consent was
given, we must consider the totality of the circumstances. Id. at 460.
5
We also must defer to the trial court’s findings of fact for our analysis. See Johnson,
414 S.W.3d at 192. The trial court’s findings of facts, issued after denying Rains’s
motion to suppress, state the following:
• Officer Lipsey initially stopped Rains’s vehicle, and Sergeant Post arrived
later and served as backup;
• Sergeant Post asked Rains to exit the vehicle, and Rains complied;
• Sergeant Post noticed “bulges” in Rains’s pants pockets;
• Sergeant Post asked Rains if he had any weapons on him and Rains said
he did not;
• During his testimony in the first hearing, Rains denied that he was asked
for permission to search his person;
• Sergeant Post asked Rains, “do you mind if I search you,” and Rains
responded “yeah,” raised his arms, and turned his back to Sergeant Post
“in a manner that would imply consent to a reasonable person”;
• Rains’s position was indicative of a person who has had previous
law-enforcement interactions and this position is commonly assumed
before a search;
• Rains said nothing and took no action to indicate that he had not given
permission for the search, that he objected to it, or that he had withdrawn
consent; and
• The trial court found Sergeant Post’s testimony credible and Rains’s
testimony not credible.
Although Rains’s answer of “yeah” to Sergeant Post’s question may have been
ambiguous, the trial court found that Rains gave implied consent to be searched by his
body movements and by taking no action to resist the search or to revoke that consent.
See Meekins, 340 S.W.3d at 458. Further, although the bodycam video may contradict
6
portions of both Rains’s and Sergeant Post’s testimony, it does not contradict the trial
court’s findings. See Carmouche, 10 S.W.3d at 332; Enriquez v. State, 678 S.W.3d 273, 285
(Tex. App.—San Antonio 2023, pet. ref’d). Accordingly, we must afford the trial
court’s findings of fact almost total deference. See Miller v. State, 393 S.W.3d 255, 263
(Tex. Crim. App. 2012).
Rains argues that Sergeant Post’s bodycam video contradicts essential portions
of the findings, the character of Sergeant Post’s communications about the search, and
the sequence of events.
First, Rains argues that the video shows that he turned away from Sergeant Post
and began raising his arms after Sergeant Post asked if he had any weapons, not after
Sergeant Post asked if he minded being searched. While it is true that, in the bodycam
video, Rains assumes a compliant posture after Sergeant Post asks him if he has any
weapons and while asking for consent to being searched, this does not differ
fundamentally from the trial court’s findings of fact. The trial court found that Rains’s
verbal answers, viewed in the context of his movements, indicated consent to be
searched and that nothing he did indicated that he withdrew that consent. Although
the video does contradict portions of both Rains’s and Sergeant Post’s testimony, it
does not fundamentally contradict the trial court’s findings. See Carmouche, 10 S.W.3d
at 332–33 (holding that in “unique circumstances” where video evidence flatly
contradicted trial court’s findings, appellate court could not afford them “almost total
deference” otherwise required).
7
Second, Rains argues that because Sergeant Post ordered him into a posture of
compliance before requesting to search him, the search was involuntary. See Carmouche,
10 S.W.3d at 332. He contends that his raising his arms was “the product of police
direction and the inherent coercion of a traffic stop.” Voluntariness is a question of
fact to be determined from all the circumstances. Id. at 331. Consent cannot be
established by showing no more than acquiescence to a claim of lawful authority. Id.
Rains analogizes his response to Sergeant Post’s questions to the facts in Massey
v. State, 649 S.W.3d 500, 514 (Tex. App.—Fort Worth 2022, op. on reh’g), rev’d by 667
S.W.3d 784 (Tex. Crim. App. 2023). In Massey, the arresting officer said, “Just go ahead
and turn around, I’m going to pat you down for my safety.” Id. at 515. Massey complied
and raised his arms slightly, and the officer began to search him. Id. In that case, we
held that “where the officer . . . couches the issue as a command or directive to comply
with a search, verbal or nonverbal responses that do not clearly indicate consent—as
opposed to mere acquiescence—are seldom deemed manifestations of consent.” Id. at
515.
Conversely, Sergeant Post asked Rains whether he had “any knives, any
handguns, anything like that,” and whether Rains minded if Sergeant Post searched him.
These questions are not direct orders as in Massey, and the trial court’s findings of fact
do not support Rains’s contention that they are. See Massey, 649 S.W.3d at 515; see also
Carmouche, 10 S.W.3d at 332 (holding that consent to search was not free and voluntary
when officer ordered suspect to “[t]urn around and put [his] hands on the car”); Adams
8
v. State, No. 13-17-00420-CR, 2020 WL 2610798, at *7–8 (Tex. App.—Corpus Christi–
Edinburg May 21, 2020, pet. ref’d) (mem. op., not designated for publication) (holding
consent was freely given when defendant evinced consent through conduct, although
verbal exchange was unclear).
The trial court’s findings of fact are supported by the bodycam video and the
witnesses’ testimony, so we defer to those findings. See Carmouche, 10 S.W.3d at 332
(quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). Because the
record supports the trial court’s findings that the search was consensual and that the
consent was not withdrawn, we overrule Rains’s sole issue.
IV. CONCLUSION
Having overruled Rains’s sole issue, we affirm the trial court’s judgment. See
Tex. R. App. P. 43.2(a).
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: June 25, 2026
9