Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-23-00011-CR
Romeo Alberto IBANEZ-BARRERA, Appellant
v.
The STATE of Texas, Appellee
From the 381st Judicial District Court, Starr County, Texas Trial Court No. 21-CR-25 Honorable Jose Luis Garza, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Irene Rios, Justice Lori I. Valenzuela, Justice Velia J. Meza, Justice
Delivered and Filed: March 12, 2025
AFFIRMED
A jury convicted Romeo Alberto Ibanez-Barrera of murder and tampering with evidence.
The jury assessed punishment at life imprisonment for murder, ten years’ confinement for
tampering with evidence, and a $10,000 fine for each offense. On appeal, Ibanez-Barrera asserts
four issues: (1) the trial court erred by instructing the jury on the law of parties; (2) the evidence
was insufficient to support a conviction for murder because Ibanez-Barrera contends it consisted
“merely” of uncorroborated accomplice testimony; (3) the trial court erred in admitting unreliable 04-23-00011-CR
and confusing testimony of an unqualified expert witness; and (4) the trial court erred in denying
Ibanez-Barrera’s motion to suppress. We affirm.
BACKGROUND
On November 7, 2020, Ibanez-Barrera, Cristobal Vasquez, III, and Francisco Jesus
Hinojosa attended a multi-day party at Ibanez-Barrera’s home in Roma, Texas. Along with others,
the three consumed copious amounts of crack cocaine, cocaine, marijuana, and alcohol. Around
midnight on November 8, 2020, Vasquez and a woman left Ibanez-Barrera’s residence in one of
Ibanez-Barrera’s vehicles—a maroon Dodge dual-rear-wheel truck (the “Maroon Dually”) to
purchase additional drugs at a local drug dealer’s house. Noe Manuel Ramirez, Jr., was at the drug
dealer’s house. Vasquez purchased crack cocaine from the drug dealer and consumed a portion of
it with Ramirez and the woman inside the Maroon Dually. Vasquez and the woman later returned
to Ibanez-Barrera’s home, while Ramirez remained at the drug dealer’s home.
On November 8, 2020, at 4:32 a.m., Ramirez texted Vasquez to ask whether Ramirez left
his keys inside the Maroon Dually. At 5:08 a.m., Vasquez responded affirmatively. Presumably to
return Ramirez’s keys, Vasquez and Ibanez-Barrera later traveled in the Maroon Dually to the drug
dealer’s house.
At trial, Vasquez testified as follows: Ibanez-Barrera’s relationship with Ramirez soured
approximately a year earlier because Ibanez-Barrera believed Ramirez stole money from him
while they were on a trip to Houston to sell drugs. 1 However, Vasquez had no idea Ibanez-Barrera
intended to murder Ramirez at the time they left Ibanez-Barrera’s house to return Ramirez’s keys.
Upon arriving at the drug dealer’s house, Ibanez-Barrera moved from the passenger seat to the
middle backseat of the Maroon Dually, and Ramirez sat in the front passenger seat. As Vasquez
1 November 3, 2020, text messages between Vasquez and Ibanez-Barrera admitted at trial show Ibanez-Barrera considered Ramirez a “bastard,” and Ibanez-Barrera ominously stated, “December is here already.”
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drove, the three consumed crack cocaine. Vasquez took a hit of crack cocaine, and shortly after,
Ibanez-Barrera used a chrome revolver to shoot Ramirez two to four times on the left and back
sides of Ramirez’s head. After the shots, Ibanez-Barrera ordered Vasquez to drive six more blocks
before Ibanez-Barrera opened the passenger side door and shoved Ramirez’s body out of the
Maroon Dually and onto the street.
The medical examiner concluded that Ramirez died from two gunshot wounds to the head.
Surveillance footage later recovered during the murder investigation showed the Maroon Dually
traveling in the area where Vasquez testified the shots occurred. In the video, a long, bright light
emanates from the driver area of the cabin, and concurrently and shortly thereafter, multiple short
flashes appear in the center of the cabin. At trial, the State displayed the video to the jury and
contended it corroborated Vasquez’s account—the longer flash was Vasquez lighting up a crack
pipe, and the short bursts were gunshots. Additional video showed the Maroon Dually pull into
the middle of a street, the passenger door open, and the Maroon Dually depart, leaving Ramirez’s
body behind.
After the murder, Vasquez and Ibanez-Barrera returned to Ibanez-Barrera’s home. During
the following hours, the two of them showered and changed clothes at Ibanez-Barrera’s house
located on his property. Sometime before 8:00 a.m., Ibanez-Barrera, Vasquez, and Hinojosa
cleaned the inside of the Maroon Dually, removed seats from the Maroon Dually, placed the seats
in a horse stable, which is also located on Ibanez-Barrera’s property, and began burning the seats.
Additional materials may also have been destroyed by the fire.
At approximately 8:00 a.m., a DPS trooper conducted a traffic stop on a brown GMC truck
just outside of Ibanez-Barrera’s property. 2 Vasquez was driving the truck, and Ibanez-Barrera was
2 The trooper’s body camera footage was admitted at trial.
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in the passenger seat. During the traffic stop, Vasquez and Ibanez-Barrera told the trooper that they
were returning home from a ranch, where they had filled deer feeders and spent the night. The
trooper conducted a field sobriety test on Vasquez and issued an open container citation before
releasing both men.
Separately, in the early morning of November 8, 2020, Investigator Jose Luis Alvarez first
arrived where Ramirez’s body was found and observed the surveillance video showing Ramirez’s
body being dumped out of the Maroon Dually. The video was quickly circulated on social media.
After a 911 call reported a fire at Ibanez-Barrera’s property, officers who had viewed the
surveillance video reported the Maroon Dually matched the description of the suspect vehicle,
observed blood inside the Maroon Dually, and saw burned truck seats in the horse stable. Ibanez-
Barrera reported to firefighter Lino Cavazos, Jr. that the fire resulted from Ibanez-Barrera burning
a dog bed; however, it was clear to Cavazos after the fire was extinguished that the remaining large
metal frames belonged to vehicle seats, not a dog bed. Moreover, the seats in the Maroon Dually
had been removed, and what was suspected blood (and later confirmed to be Ramirez’s blood) was
visible in and around the Maroon Dually.
Ibanez-Barrera was transported to the Roma Police Department for questioning. Roma
police requested investigatory assistance from the Texas Rangers, who arrived at the scene and
began processing evidence. After processing the scene at Ibanez-Barrera’s property, Alvarez
traveled to the Roma Police Department to question Ibanez-Barrera. By the time Alvarez
questioned Ibanez-Barrera at the police department, Ibanez-Barrera had been under arrest for
felony tampering with evidence for approximately three hours. Alvarez Mirandized Ibanez-Barrera
and informed him of his rights; however, this process was complicated because Ibanez-Barrera
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only speaks Spanish. According to Ibanez-Barrera, Alvarez omitted a portion of the pre-printed
Miranda warning statement in Spanish.
During the custodial interview, Ibanez-Barrera asserted the Maroon Dually had been
parked for approximately one month and stated that he never lends his truck to anyone. Ibanez-
Barrera also claimed Vasquez was with him the morning of the murder. During the interview,
Ibanez-Barrera never inquired why he was being arrested or interrogated; asserted he was burning
a torn seat where his dogs would sleep; claimed the driver’s seat of the Maroon Dually was
removed because it was broken; claimed the burned seats belonged to a blue dually that he also
owned; and asserted that he was at the ranch with Vasquez the previous night. When confronted
with the fact that the interrogation involved a murder and not simply tampering with evidence,
Ibanez-Barrera stated “Okay”—he never inquired who the suspected victim of the murder was.
Ibanez-Barrera also volunteered to take a gunshot residue test—although, at that time, no one had
advised Ibanez-Barrera that the victim had been shot with a firearm.
Ibanez-Barrera was thereafter indicted on two felony counts: murder and tampering with
evidence. At trial, the State adduced testimony from twelve witnesses. The parties stipulated to the
testimony of seven additional witnesses during the State’s case in chief. The defense called four
witnesses. The charge of the court included a special issue requesting the jury to make a deadly
weapon finding. The jury found Ibanez-Barrera guilty of murder and tampering with evidence but
did not make an affirmative finding of a deadly weapon. The jury assessed punishment and this
appeal followed.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Ibanez-Barrera asserts that the evidence does not support a jury instruction
on the law of parties because the entirety of the State’s evidence relied on the uncorroborated
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accomplice testimony of co-defendants Vasquez and Hinojosa. In his second issue, Ibanez-Barrera
asserts the evidence is insufficient to convict him of murder under the law of parties. Because the
resolution of both issues turns on evidentiary sufficiency, we review both issues together.
Standard of Review—Sufficiency of Evidence
In a sufficiency claim, our role is “restricted to guarding against the rare occurrence when
a factfinder does not act rationally[.]” Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.
2009). We assess the evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006) (citing Jackson v. Virginia,
443 U.S. 307, 318–19 (1979)). “The essential elements of the offense are defined by the
hypothetically correct jury charge for the case.” Ramos v. State, 407 S.W.3d 265, 269 (Tex. Crim.
App. 2013). Conflicting inferences are resolved in favor of the verdict. Dobbs v. State, 434 S.W.3d
166, 170 (Tex. Crim. App. 2014). Direct and circumstantial evidence are treated equally, and
circumstantial evidence alone can be sufficient to establish guilt. Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
“In reviewing the sufficiency of the evidence, we look at “events occurring before, during
and after the commission of the offense and may rely on actions of the defendant which show an
understanding and common design to do the prohibited act.” Guevara v. State, 152 S.W.3d 45, 49
(Tex. Crim. App. 2004) (internal quotation marks omitted). “Each fact need not point directly and
independently to the guilt of the appellant, as long as the cumulative effect of all the incriminating
facts are sufficient to support the conviction.” Id.
On appeal, we “determine whether the necessary inferences are reasonable based upon the
combined and cumulative force of all the evidence when viewed in the light most favorable to the
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verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). Thus, we “are not
permitted to use a ‘divide and conquer’ strategy for evaluating sufficiency of the evidence” because
that approach does not consider the cumulative force of all the evidence. Hacker v. State, 389
S.W.3d 860, 873 (Tex. Crim. App. 2013). When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that
determination. See Hooper v. State, 214 S.W.3d 9, 12 (Tex. Crim. App. 2007). We review the
factfinder’s weighing of the evidence and cannot substitute our judgment for that of the factfinder.
Brooks v. State, 323 S.W.3d 893, 911–12 (Tex. Crim. App. 2010).
Standard of Review—Jury Instruction
We reverse convictions for charge error only if actual harm to a defendant occurred. If no
objection to the charge error was made, as here, we only reverse for “egregious harm.” Black v.
State, 723 S.W.2d 674, 675 n.2 (Tex. Crim. App. 1986). Egregious harm results from error
affecting the very basis of the case, depriving the defendant of a valuable right, or vitally affecting
a defensive theory. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). In assessing
whether a charge was egregiously harmful, we consider “(1) the entire jury charge; (2) the state of
the evidence, including contested issues; (3) arguments of counsel; and (4) any other relevant
information contained in the record as a whole.” Gelinas v. State, 398 S.W.3d 703, 705–06 (Tex.
Crim. App. 2013).
Applicable Law
A trial court must deliver to the jury a written charge distinctly setting forth the law
applicable to the case. TEX. CODE CRIM. PROC. art. 36.14. The jury charge must apply the law to
the facts adduced at trial. Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004).
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A trial court may instruct the jury on the law of parties if “there is sufficient evidence to
support a jury verdict that the defendant is criminally responsible under the law of parties.” Ladd
v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999). The State does not have to prove it is correct
regarding the defendant’s participation as a party but need only show that the evidence raises the
issue to be entitled to its submission. In re State ex rel. Weeks, 391 S.W.3d 117, 124–25 (Tex.
Crim. App. 2013). Further, the trial court may submit a charge allowing the jury to convict the
defendant as a principal actor or as a party; submission of one theory does not prohibit the
submission of the other. Goff v. State, 931 S.W.2d 537, 545 (Tex. Crim. App. 1996).
As applicable to our analysis, a person commits the offense of murder if the person “intends
to cause serious bodily injury and commits an act clearly dangerous to human life that causes the
death of an individual.” TEX. PENAL CODE § 19.02(b)(2). “A person is criminally responsible as a
party to an offense if the offense is committed by his own conduct, by the conduct of another for
which he is criminally responsible, or by both.” Id. § 7.01(a). Each party to an offense may be
charged and convicted without alleging that he acted as a principal or accomplice. Id. § 7.01(c). A
person is criminally responsible for an offense committed by the conduct of another if “acting with
intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense.” Id. § 7.02(a)(2). “Party participation may
be shown by events occurring before, during, and after the commission of the offense and may be
demonstrated by actions showing an understanding and common design to do the prohibited act.”
Salinas v. State, 163 S.W.3d 734, 739–40 (Tex. Crim. App. 2005). “Each fact need not point
directly to the guilt of the defendant, as long as the cumulative effect of the facts is sufficient to
support the conviction under the law of parties.” Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim.
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App. 2012). Circumstantial evidence may be used to prove that a person is a party to an offense.
Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006).
Analysis
After finding Ibanez-Barrera guilty of murder, the jury was asked by a special issue in the
charge, “Do you find from the evidence beyond a reasonable doubt that the Defendant used or
exhibited a deadly weapon, to wit: a firearm, during the commission of the Murder?” The jury
answered, “We do not.” Ibanez-Barrera argues that because the jury found he did not use a firearm
during the murder (and a firearm was the only cause of death as an evidentiary matter), the jury
could only have logically convicted Ibanez-Barrera of murder under the law of parties.
Specifically, Ibanez-Barrera asserts that because the jury found that Ibanez-Barrera was not the
primary actor, the law of parties instruction gave the jury an “impermissible avenue to convict”
Ibanez-Barrera of murder. Additionally, Ibanez-Barrera concludes that the State failed to adduce
corroborating evidence to support co-defendants’ Vasquez and Hinojosa’s testimony and, as a
result, there was insufficient evidence on which to charge the law of parties, necessitating reversal
of Ibanez-Barrera’s murder conviction.
In response, the State asserts the trial court correctly instructed the jury on the law of
parties. Referring to only corroborating evidence, the State points to text messages establishing
Ibanez-Barrera’s motive to kill Ramirez—that Ibanez-Barrera disliked Ramirez after a trip to
Houston to sell drugs resulted in Ibanez-Barrera believing Ramirez stole money or drugs from
him. Text messages also confirmed that Vasquez and Ibanez-Barrera were at Ibanez-Barrera’s
house the night before the murder and not at the ranch as they told police. The jury could have
credibly determined that Ibanez-Barrera lied about and sought to hide his participation in
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Ramirez’s murder based on the corroborating text messages, the body camera footage from the
traffic stop, and Ibanez-Barrera’s custodial interrogation.
Moreover, the jury could have credibly believed Ibanez-Barrera lied about and sought to
hide his participation in Ramirez’s murder based upon physical evidence—including Ramirez’s
blood inside and around the Maroon Dually and the vehicle seats removed from the Maroon Dually
destroyed in the fire on Ibanez-Barrera’s property. Smoke from the fire was visible in the trooper’s
body camera during the traffic stop the morning after the murder, but Ibanez-Barrera did not appear
concerned with the smoke emanating from his property.
The jury could have also considered, and could have disbelieved, Ibanez-Barrera’s
statements during his custodial interrogation and to the firefighter that he had burned a dog bed
and the Maroon Dually had not been driven for a month or longer. Ibanez-Barrera’s statements
were also at odds with both the burned vehicle seats found by the firefighters in the horse stable
and video testimony showing the Maroon Dually disposing of Ramirez’s body.
Furthermore, Ibanez-Barrera’s statement that he never lends his truck to anyone undercuts
any suggestion that he was not present when Ramirez’s murder occurred. The jury could have
believed Ibanez-Barrera did not lend his truck to anyone and, therefore, believed he was present
during the murder.
The surveillance video captured shortly before the disposal of Ramirez’s body shows two
distinct light sources from inside the Maroon Dually at the time Vasquez described the murder
occurring. According to the State, “[S]till frames from this same surveillance video shows the two
sources of light, simultaneously, where the light emitting from the driver’s side appear to be longer
in time and brighter. The second source of light appears in short bursts of light that are much
fainter, appear to come from the rear of the vehicle, and is [sic] believed to be bursts of light from
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gunshots. This would entirely corroborate Vasquez’s account of the time, place, and methods of
the murder of Ramirez. Especially given that [Ibanez-Barrera’s] alibi hinged on the fact that
[Ibanez-Barrera] spent the night together with Vasquez.”
Ibanez-Barrera’s actions after the murder further corroborate Vasquez and Hinojosa’s
testimony. Ibanez-Barrera freely admitted to officials on multiple occasions to have set objects on
fire in the horse stable, although he repeatedly changed his description of the items that he claimed
to have burned—at times, stating he was burning dog beds, clothes, or trash. Further, Ibanez-
Barrera volunteered during his custodial interrogation to take a gunshot residue test before any
investigator informed him of Ramirez’s cause of death, suggesting he had independent knowledge
of how Ramirez was killed.
Further corroborating evidence includes data extracted from Ibanez-Barrera’s phone,
including a series of phone calls and physical activity during the time Vasquez and Hinojosa
testified Ibanez-Barrera actively used his phone and when the three co-defendants were physically
cleaning the truck, removing the seats, burning the seats, and walking around the property.
After reviewing the record, we find the State’s evidence raised the issue of law of parties,
and the trial court correctly submitted a charge allowing the jury to convict Ibanez-Barrera as a
principal actor or as a party. We further conclude there is sufficient evidence outside of Vasquez
and Hinojosa’s testimony to support a guilty verdict finding Ibanez-Barrera criminally responsible
under the law of parties, including surveillance videos, Ibanez-Barrera’s custodial interview,
testimony by witnesses involved in the investigation, physical evidence, and digital evidence. See
Ladd, 3 S.W.3d at 564. Finding no error, we need not address harm. See TEX. R. APP. P. 47.1. We
overrule Ibanez-Barrera’s first and second issues.
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EXPERT QUALIFICATION AND TESTIMONY
In his third issue, Ibanez-Barrera asserts the trial court erroneously admitted confusing and
misleading testimony by an unqualified expert.
Standard of Review and Applicable Law
We review a trial court’s admission of expert testimony for an abuse of discretion. Rhomer
v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). Admission of expert testimony requires
three separate conditions: “(1) the witness qualifies as an expert by reason of his knowledge, skill,
experience, training, or education; (2) the subject matter of the testimony is an appropriate one for
expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in
deciding the case.” Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006) (citation omitted).
These are commonly referred to as (1) qualification, (2) reliability, and (3) relevance. Id. If we
conclude a trial court erroneously admitted expert testimony, we review the record for harm. See
TEX. R. APP. P. 44.2(b).
Qualification
On appeal, Ibanez-Barrera first argues Investigator Natividad Gonzalez was unqualified to
testify about data derived from the iHealth application regarding the distance Ibanez-Barrera
traveled during the morning of the murder. Specifically, Ibanez-Barrera asserts, “None of
investigator Gonzalez’s knowledge, training, education, or experience involved interpreting data
from the iHealth application or any phone application sufficient under TEX. R. EVID. 702.
Investigator Gonzalez admitted he could not determine whether the distance measured on the
phone application was accurate or whether the steps recorded were running or walking.” In
essence, Ibanez-Barrera argues Gonzalez needed to be, and was not, a software engineering expert
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on how iHealth collects and processes data—as opposed to an expert in extracting data from
phones. We reject this suggestion.
Gonzalez’s relevant qualifications were well-established during a pre-trial hearing and
again at trial. At trial, Gonzalez explained his task in assisting criminal investigations through
extracting data from cellular phones. Gonzalez received specialized federal training at the National
Computer Forensics Institute for mobile device examinations and data extractions from cell
phones. He received a total of three certifications—Cellebrite Certified Operator certification,
Mobile Device Examiner certification, and Digital Evidence Information Investigations
certification. As a device examiner, Gonzalez reports the contents of a given device. During his
career, he had conducted between seventy and one hundred cellular phone examinations.
Importantly, Gonzalez did not interpret or opine on data extractions from Ibanez-Barrera’s
phone. Nor did he opine on how iHealth collects or processes data. Instead, Gonzales explained to
the jury the process for extracting phone data and authenticated the report generated by Cellebrite
software based on the extracted data. Gonzalez was not required to have specific knowledge of the
software engineering of the iHealth application to present this information. Rather, Gonzalez
simply presented a “Cellebrite Extraction Report” to the jury, and Gonzalez holds a Cellebrite
Certified Operator certification. Once extracted from the phone, the iHealth data was readily
understandable to lay jurors, and the jury was entitled to give it the weight they determined it was
due. We conclude the trial court did not err in determining Gonzalez was qualified.
Reliability and Confusion
Ibanez-Barrera next argues Gonzalez’s testimony was unreliable and confusing to the jury.
Specifically, Ibanez-Barrera contends “the State, through its expert, led the jury on a confusing
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series of attempts at elementary mathematics in its attempt to convert distance from meters to yards
and presumably illustrate the distance [Ibanez-Barrera] traveled on the night of the Murder.”
Although the State’s examination of Gonzalez contains a portion in which it is clear
Gonzalez was unprepared to discuss converting between metric and imperial units (i.e., meters and
yards), that discussion does not render the substance of Gonzalez’s testimony unreliable or
confusing. In substance, Gonzalez presented a Cellebrite phone extraction report. That report is,
itself, understandable by a lay juror. The report recites a number of steps taken (or flights climbed)
by the holder of the phone during segments of time:
By way of the above example, one entry of the Cellebrite phone extraction report on the iHealth
data demonstrates Ibanez-Barrera’s phone traveled 1011 steps (or 760.27 meters) on November 8,
2020, between 6:46 a.m. and 7:11 a.m. The information presented in the Cellebrite extraction
report is readily accessible to a layperson, and itself cannot be considered confusing,
notwithstanding Gonzalez’s inability to convert meters to yards during questioning. We conclude
Gonzalez’s testimony regarding the extracted cellphone data was reliable and not confusing to the
jury. We overrule Ibanez-Barrera’s third issue.
MOTION TO SUPPRESS
In his fourth issue, Ibanez-Barrera asserts the trial court erroneously denied his motion to
suppress his custodial interrogation. According to Ibanez-Barrera, he did not knowingly,
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intelligently, and voluntarily waive his rights because Alvarez failed to explain the waiver of Fifth
Amendment rights and commanded Ibanez-Barrera to sign a pre-printed Miranda warning without
explaining its effect.
Standard of Review
“A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion and
should be reversed only if it is outside the zone of reasonable disagreement.” Wexler v. State, 625
S.W.3d 162, 167 (Tex. Crim. App. 2021). “A bifurcated standard applies when we review a trial
court’s ruling on a motion to suppress based on an alleged Miranda violation.” Martinez-
Hernandez v. State, 468 S.W.3d 748, 756 (Tex. App.—San Antonio 2015, no pet.). We first
“afford[] almost total deference [to] the trial judge’s rulings on questions of historical fact and on
application of law to fact questions that turn upon credibility and demeanor,” and second, we
review “de novo the trial court’s rulings on [the] application of law to fact questions that do not
turn upon credibility and demeanor.” Id. (citation omitted). The erroneous denial of a motion to
suppress a statement taken in violation of Miranda is constitutional error subject to review under
the standard in Texas Rule of Appellate Procedure 44.2(a). See TEX. R. APP. P. 44.2(a).
Error Preservation
Generally, error is preserved for appellate review if a defendant who files a pretrial motion
to suppress secures an adverse ruling on the evidentiary issue he desires to appeal. Id. R. 33.1;
Thomas v. State, 408 S.W.3d 877, 881 (Tex. Crim. App. 2013). However, that same preservation
may be waived if the defendant later at trial affirmatively states “no objection” when the evidence
is offered and the record, in context, shows the defendant either intended to waive his objection or
it is unclear from the record regarding the defendant’s intentions. See Thomas, 408 S.W.3d at 885–
86.
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Here, Ibanez-Barrera filed a pretrial motion to suppress his custodial interview, which the
trial court denied. This would have preserved this issue for our review. See TEX. R. APP. P. 33.1;
Thomas, 408 S.W.3d at 881. However, when the video and transcript of his custodial interview
were offered at trial, Ibanez-Barrera’s defense counsel affirmatively stated “no objection” to the
entry of the evidence. The record contains no contextual clues that Ibanez-Barrera’s defense
counsel’s “no objection” response was otherwise subject to his earlier motion to suppress the same
evidence or that the response was anything other than an intentional waiver of his earlier objection
previously preserved through his motion to suppress.
Without deciding the issue of error preservation, we resolve the merits of the suppression
issue in the analysis below.
The State “may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436,
444 (1965). Interrogation includes (1) “express questioning” and (2) “any words or actions on the
part of the police (other than those normally attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v.
Innis, 446 U.S. 291, 301 (1980).
Under Article 38.21 of the Texas Code of Criminal Procedure, an “accused’s statement
may be used as evidence against him if it appears that the same was freely and voluntarily made
without compulsion or persuasion.” Gibbs v. State, 555 S.W.3d 718, 733 (Tex. App.—Houston
[1st Dist.] 2018, no pet.) (quoting TEX. CODE CRIM. PROC. art. 38.21). A defendant’s oral statement
made as a result of custodial interrogation is inadmissible in a criminal proceeding unless a
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recording is made of the statement, the defendant is warned during the recording but before making
the statement that any statement he makes may be used as evidence against him in court, and he
knowingly, intelligently, and voluntarily waives those rights. See TEX. CODE. CRIM. PROC. art.
38.22, §§ 3, 6.
We undertake a two-part inquiry into whether a defendant’s waiver is valid. See Berghuis
v. Thompkins, 560 U.S. 370, 382–83 (2010); Joseph v. State, 309 S.W.3d 20, 25 (Tex. Crim. App.
2010). First, the waiver must have been “voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion, or deception.” Berghuis, 560 U.S. at 382
(citation omitted); Joseph, 309 S.W.3d at 25. Second, the waiver must have been “made with a
full awareness of both the nature of the right being abandoned and the consequences of the decision
to abandon it.” Berghuis, 560 U.S. at 382–83 (citation omitted); Joseph, 309 S.W.3d at 25. Courts
consider the totality of the circumstances surrounding the interrogation. Joseph, 309 S.W.3d at 25.
Ibanez-Barrera argues the totality of the circumstances reveals (1) Ibanez-Barrera was
arrested for tampering with evidence approximately three hours prior to questioning, (2) Ibanez-
Barrera was prevented from leaving during that time, (3) the investigating officer, Alvarez, failed
to read the entirety of the pre-printed statements on the waiver of rights portion of the form, and
(4) Alvarez instructed Ibanez-Barrera to “just sign here, this just means that I read you your rights,
that’s all it means, nothing more.” According to Ibanez-Barrera, these facts demonstrate he did not
waive his rights under Miranda or Article 38.22 and, therefore, the trial court abused its discretion
in admitting Ibanez-Barrera’s statements at trial.
In response, the State argues Alvarez Mirandized Ibanez-Barrera, and Ibanez-Barrera
waived his rights verbally, through his conduct, and in writing. The State argues Ibanez-Barrera
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volunteered information prior to being questioned about the murder but that Alvarez advised
Ibanez-Barrera (in Spanish):
Alvarez: All right, Mr. [Ibanez-Barrera] I’m going to read you your rights. . . . Before we do it- let me. Before we ask you any questions you must have the knowled- consent to your rights, you have the right to remain silent, anything you say - you - can be used against you in court, you have the right to consult with a lawyer to make- be advised by - by him before- we ask you questions and you also have the right to the presence of your lawyer during the interrogation, if you do not have the means to employ a lawyer, one will be assigned to you bef - before initiating the questions if you wish, Okay? If you decide to answer questions now without the presence of an attorney, you have every right to terminate the answers at any time if you wish, did you understand?
Ibanez-Barrera: Correct.
Alvarez: Righ-? I mean you don’t have to talk to me, but you can talk and you know what? I don’t want to (inaudible).
Ibanez-Barrera: No, no (inaudible) I have nothing to hide, wel1, I do not (inaudible).
Alvarez: There you go, I also want to go home.
Ibanez-Barrera: Yes, I’m already very tired (inaudible)
Alvarez: Yes, just – just sign here, this just means that I read you your rights, that’s all it means, nothing more.
Ibanez-Barrera: Okay, done.
We agree with the State that Alvarez orally advised Ibanez-Barrera of his rights under
Miranda and Article 38.22. 3 Although Alvarez did not use the words “waiver of rights” in his oral
admonishment, he substantively informed Ibanez-Barrera of waiver by telling him of his right to
remain silent and that his statements may be used against him in court. In tone, the discussion was
cordial, and there is no indication that Alvarez intended to coerce Ibanez-Barrera into unknowingly
3 Because Ibanez-Barrera’s verbal waiver is sufficient, we need not address written waiver. See TEX. R. APP. P. 47.1.
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waiving his rights or that Ibanez-Barrera felt any compulsion to waive his rights. Insisting he had
nothing to hide, Ibanez-Barrera waived his rights and implicitly did so through his conduct by
continuing the interview after being advised he had the right to terminate the interview at any time
if he wished to do so. Considering the totality of the circumstances, we reject Ibanez-Barrera’s
argument that he did not knowingly, intelligently, and voluntarily waive his rights. We accordingly
overrule Ibanez-Barrera’s fourth issue.
CONCLUSION
Having overruled Ibanez-Barrera’s issues, the judgment of the trial court is affirmed.
Lori I. Valenzuela, Justice
DO NOT PUBLISH
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