Reversed and Remanded and Opinion filed March 28, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00096-CR

                          JOSE VASQUEZ, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 228th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1333231

                                 OPINION


      Appellant Jose Vasquez appeals his conviction for capital murder. After the
jury found him guilty, the trial court assessed punishment at life in prison. In his
sole issue, appellant complains that the trial court erred in denying his motion to
suppress the videotaped confession he made to an investigating officer during
custodial interrogation. Appellant argues that his statement was obtained by an
impermissible two-step interrogation technique. We reverse and remand for a new
trial.

                                            Background

         On April 16, 2010, appellant was arrested pursuant to a warrant and charged
with two counts of capital murder. Officers chased, apprehended, and handcuffed
appellant at a gas station, placed him in a squad car, and transported him to the
police station for questioning. Officers placed appellant in an interview room,
where he remained for nearly eight hours while being interrogated by three or four
investigating officers. The officer who last questioned appellant ultimately
obtained a confession that was not captured on videotape. Soon thereafter, the
officer asked permission to videotape appellant’s confession. Appellant complied
with the request and repeated his confession.1

         Appellant filed a written pretrial motion to suppress his confession on
grounds that he was not given Miranda2 warnings and he did not validly waive his
rights before he confessed. Appellant subsequently filed another pretrial motion to
suppress his oral statements on the sole ground that using the oral statements at
trial would be prohibited by Texas Code of Criminal Procedure article 38.22,
section 3.3 The trial court carried the motions with trial and held a hearing outside
the presence of the jury to determine the admissibility of the statements.

         At the hearing, only the officer who obtained appellant’s recorded statement
         1
             The relevant facts concerning the crime are discussed below.
         2
        Miranda v. Arizona, 384 U.S. 436, 478-79 (1966) (prohibiting use of oral statement of
accused made as result of custodial interrogation unless certain warnings are given and accused
knowingly, intelligently, and voluntarily waives rights).
         3
         Texas Code of Criminal Procedure article 38.22, section 3 restricts the admissibility in a
criminal proceeding of statements made during custodial interrogation to statements that are
recorded and obtained after the accused has been given a statutory warning akin to the Miranda
warnings and “knowingly, intelligently, and voluntarily waives any rights set out in the
warning.”

                                                   2
testified. He did not know whether the other officers had given appellant Miranda
warnings before initiating the interrogation.4 The officer testified that he gave
appellant Miranda warnings, as reflected on the videotape, but the officer did not
testify that he also did so before appellant confessed off-camera.5 At the beginning
of the videotape recording, the officer states, “I’m going to read your rights to you
       4
         The officer initially testified that he observed the other officers read appellant his
Miranda warnings but then clarified that he actually observed officers read Miranda warnings to
another suspect, as follows:

       [Officer:]                . . . I was in the monitoring room. When [the other officers]
                                 entered the room, you know, they read the defendant—and
                                 when they interviewed [another suspect], they also read
                                 him his legal warnings as well.
                                                     ...
       [Defense counsel:]        . . . [W]here was [appellant] located when you saw [the
                                 other officers] talking to him?
       [Officer:]                . . . I was not present when [the other officers] talked to
                                 [appellant]. I was in an interview room talking to [another
                                 suspect]. I was conducting an interview there while
                                 [another officer] was speaking to [appellant]. So, I was not
                                 present when he spoke to him, you know.
       5
           The officer testified as follows:

       [State’s counsel:]        . . . Did you advise him of his legal rights and warnings?
       [Officer:]                Yes, sir, I did.
       [State’s counsel:]        Did he appear—did you go through each individual legal
                                 right and warning with him?
       [Officer:]                Yes, sir, I did.
       [State’s counsel:]        Did he appear to understand each individual legal right and
                                 warning?
       [Officer:]                Yes, he did.
       [State’s counsel:]        Did he waive each individual legal right and warning that
                                 you gave him?
       [Officer:]                Yes, sir, at the end.
       [State’s counsel:]        . . . And did he agree to speak with you having waived
                                 those rights?
       [Officer:]                Yes, sir, he did.

                                                     3
like I did a little earlier,” but he did not indicate on the videotape or in his
testimony whether the “earlier” reading of his rights occurred before or after the
previous confession was made. The officer further testified that appellant never
invoked his rights to remain silent or have counsel present. Appellant, however,
testified he invoked his right to remain silent before custodial interrogation began
and no officer gave him Miranda warnings until after he confessed off-camera.
The trial court suppressed the statements that were not captured on videotape but
admitted the videotaped confession.

                                         Discussion

       In his sole issue, appellant argues the trial court erroneously admitted the
videotaped confession because it was obtained by an improper two-step “question
first, warn later” interrogation technique. See Missouri v. Seibert, 542 U.S. 600,
622 (2003) (Kennedy, J., concurring); Carter v. State, 309 S.W.3d 31, 35–36 (Tex.
Crim. App. 2010). A “question first, warn later” interrogation technique consists of
officers interrogating a suspect without providing Miranda warnings and obtaining
a confession; then, after the inculpatory statements are made, officers provide
Miranda warnings and obtain a waiver of the warnings. See Seibert, 542 U.S. at
604–05. Officers then have the suspect repeat the inculpatory statements in an
attempt to cure the lack of Miranda warnings.6 See id. at 605.

       In reviewing a trial court’s ruling on a motion to suppress, appellate courts
must view all of the evidence in the light most favorable to the ruling. State v.
Garcia–Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). At a suppression
hearing, the trial judge is the sole factfinder. St. George v. State, 237 S.W.3d 720,
       6
          The classic example of this technique occurs when “the suspect’s first, unwarned
interrogation [leaves] ‘little, if anything, of incriminating potential left unsaid,’ making it
‘unnatural’ not to ‘repeat at the second stage what had been said before.’” Bobby v. Dixon, 132
S. Ct. 26, 31 (2011) (citing Seibert, 542 U.S. at 616–17).

                                              4
725 (Tex. Crim. App. 2007). We give almost total deference to the trial court’s
determination of historical facts when supported by the record, particularly if the
findings turn on witness credibility and demeanor. See State v. Ross, 32 S.W.3d
853, 855–56 (Tex. Crim. App. 2000). The same deference is accorded to
determinations of mixed questions of law and fact if their resolution depends upon
witness credibility and demeanor. Id. at 856. Issues that present purely legal
questions are considered under a de novo standard. Id. We will sustain the trial
court’s ruling if it is reasonably supported by the record and is correct on any
theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.
Crim. App. 1996).

      In the plurality opinion Missouri v. Seibert, four justices of the Supreme
Court concluded that a “question first, warn later” interrogation technique
circumvented the objective of Miranda by rendering any warnings given
ineffective. Seibert, 542 U.S. at 611–13; see also Martinez v. State, 272 S.W.3d
615, 619-20 (Tex. Crim. App. 2008). The Seibert plurality found that the purpose
of this interrogation technique was to obtain a confession the suspect may not have
made if he had understood his rights at the outset. Seibert, 542 U.S. at 611. In his
concurring opinion in Seibert, Justice Kennedy determined that when a two-step
interrogation technique is used in a deliberate, calculated way to undermine
Miranda warnings, absent “curative measures,” the post-warning statements must
be excluded. Seibert, 542 U.S. at 622 (Kennedy, J., concurring). In Carter, the
Court of Criminal Appeals expressly adopted Justice Kennedy’s concurrence in
Seibert. Carter, 309 S.W.3d at 38.

      No evidence that officers read appellant his Miranda warnings before
appellant made off-camera incriminating statements. The State, as the
proponent of the evidence of appellant’s confession, bears the burden of

                                         5
establishing its admissibility. See Martinez, 272 S.W.3d at 623 (citing Tex. R.
Evid. 104(a), De la Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008), and
Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim. App. 1994)). It is also the
State’s burden to establish a valid waiver of Miranda rights by a preponderance of
the evidence. See id. at 619 n.10; see also Seibert, 542 U.S. at 608 n.1 (“The
prosecution bears the burden of proving, at least by a preponderance of the
evidence, the Miranda waiver.”); Ervin v. State, 333 S.W.3d 187, 235-36 (Tex.
App.—Houston [1st Dist.] 2010, pet. ref’d).

      Here, the State did not present evidence that officers read appellant his
Miranda warnings before he made the off-camera incriminating statements. The
only officer to testify at the suppression hearing did not know whether the other
officers had given appellant Miranda warnings before initiating the interrogation.
The officer testified that he gave appellant Miranda warnings, as reflected on the
videotape. He did not testify that he also did so before appellant confessed off-
camera, although he said on the videotape recording, “I’m going to read your rights
to you like I did a little earlier.” The officer was not present when appellant was
arrested at 2:00 p.m. Appellant had been in the interrogation room approximately
eight hours before the testifying officer started his interrogation. The officer had
been asked to assist in the interrogation around 5:15 p.m. and could “really just
testify to anything that happened after 5:15.” The officer testified he interviewed
another suspect and did not begin interviewing appellant until 10:00 or 10:30 p.m.
Thus, the officer was not aware of what transpired with appellant from 2:00 p.m.
until the officer started his interview at 10:00 or 10:30 p.m. The State did not meet
its burden to show appellant received Miranda warnings before making the off-
camera incriminating statements. Therefore, we must address whether the State
deliberately employed a two-step interrogation technique in a deliberate way to


                                         6
undermine appellant’s Miranda protections.

       Evidence that the two-step interrogation technique was deliberately
employed. Courts should determine “whether the evidence shows that [the
interrogating officer] deliberately employed a two-step ‘question-first, warn later’
interrogation technique to circumvent [the] appellant’s Miranda protections.”
Carter, 309 S.W.3d at 38; Ervin, 333 S.W.3d at 213. Because the “question of
whether the interrogating officer deliberately withheld Miranda warnings will
invariably turn on the credibility of the officer’s testimony in light of the totality of
the circumstances surrounding the interrogation,” a factual finding regarding the
officer’s credibility is entitled to deference on appeal and is reviewed only for clear
error.7 Carter, 309 S.W.3d at 39; Ervin, 333 S.W.3d at 213. Here, the trial court
did not make express factual findings. Thus, we shall imply fact findings that
support the trial court’s ruling so long as the evidence supports these implied
findings. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007).

       The trial court granted the motions to suppress in part and denied them in
part, stating:

       Only the video statements are admissible. Statements that [appellant]
       made that were not videoed are not admissible in the State’s case in
       chief. . . . [W]hat I’m doing is I’m granting your motion in part. . . .
       So, any statements that [appellant] makes outside the video, outside of
       the Miranda warnings that were stated on the video do not come

       7
          When the two-step questioning tactic is not deliberately employed, “a suspect who has
once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his
rights and confessing after he has been given the requisite Miranda warnings.” See Oregon v.
Elstad, 470 U.S. 298, 318 (1985); see also Carter, 309 S.W.3d at 36; Ervin, 333 S.W.3d at 213.
In this situation, when the first statement is unwarned but not coerced, “the admissibility of any
subsequent statement should turn . . . solely on whether it is knowingly and voluntarily made.”
Elstad, 470 U.S. at 309; see also Carter, 309 S.W.3d at 32; Ervin, 333 S.W.3d at 213. “Unless a
deliberate two-step strategy is employed, Elstad applies.” See Carter, 309 S.W.3d at 37; see also
Ervin, 333 S.W.3d at 213.

                                                7
       in. . . . The video itself is admissible.8

Because the trial court admitted the videotaped statement, it impliedly found the
officers did not employ a two-step interrogation technique in a deliberate,
calculated way to undermine appellant’s Miranda warnings. See Gutierrez, 221
S.W.3d at 687. We must determine whether that finding is clear error because it is
not supported by the record. See Carter, 309 S.W.3d at 39-41.

       In Martinez, the Court of Criminal Appeals held that the State has the
burden of proving that a two-step interrogation technique was not deliberately
employed in light of the State’s burden to show a confession is admissible. 272
S.W.3d at 623-24. No other Texas cases have addressed this issue.9 In Martinez,
police officers questioned the defendant about a robbery and murder before the
defendant was given Miranda warnings. Id. at 618. Thereafter, a polygraph test
was administered to the defendant, which took three to four hours. Id. The
questions asked during the polygraph test were not in the record. Id. After the
polygraph test, an officer informed the defendant that he had failed the test. Id.
Appellant was then taken to municipal court, where a magistrate read him his
Miranda warnings. Id. Upon his return to the police station, an officer again read
appellant his Miranda warnings, and appellant was again questioned about the

       8
          Defense counsel asserted three grounds for suppression at the hearing: (1) the voices on
the video were not identified as required by article 38.22, section 3(a)(4); (2) “this is a two-step
interview. And because of the two-step interview . . . once they got [appellant] to say what they
wanted him to say, they took him in and videoed him and have his Miranda warning [sic] and he
told the story again”; and (3) the video confession was not appellant’s statement as required by
article 38.22 because appellant answered the officer’s leading questions based on his earlier
unrecorded confession.
       9
          Other jurisdictions have imposed this burden on the government as consistent with the
government’s burden to prove admissibility of a confession before it may come into evidence.
See, e.g., U.S. v. Capers, 627 F.3d 470, 479 (2d Cir. 2010); U.S. v. Stewart, 536 F.3d 714, 719
(7th Cir. 2008); U.S. v. Ollie, 442 F.3d 1135, 1142-43 (8th Cir. 2006); Ross v. State, 45 So. 3d
403, 427 (Fla. 2010).

                                                 8
robbery and murder. Id. Appellant then gave incriminating statements on
videotape. Id. The State argued appellant had the burden of producing an adequate
record regarding what questions were asked during the polygraph test and any
unwarned conversations. Id. at 623. The Court of Criminal Appeals noted,

      When the officers initially questioned [the defendant] at the police
      station without giving him Miranda warnings, they violated [the
      defendant’s] constitutional rights. At the suppression hearing, the state
      failed to provide the polygrapher’s name, the questions used during
      the polygraph examination, or the content of the initial interrogation
      of [the defendant], all of which are under the exclusive control of the
      state.
Id. at 623-24. In holding that appellant’s videotaped statement was inadmissible,
the court further noted,

      Here, [the defendant] was in custody for the purposes of Miranda; he
      gave both statements to law-enforcement officials after his formal
      arrest pursuant to an arrest warrant, and both statements were given at
      a police station. This indicates that the absence of Miranda warnings
      at the beginning of the interrogation process was not a mistake based
      on the interrogating officers’ mistaken belief that appellant was not in
      custody, but rather a conscious choice.

Id. at 624.

      In his concurrence, Judge Price stated, “I do not know whether [the State’s]
burden should extend to disproving circumstances that precede the Miranda
warnings that might suffice, in contemplation of Seibert, to call the efficacy of
those warnings into doubt.” Id. at 628 (Price, J., concurring). But he noted without
regard to which party carried the burden, the defendant “prove[d] circumstances
that would impugn the efficacy of otherwise valid Miranda warnings.” Id. Despite
these statements and other statements that appear to conflict with the analysis in
the opinion authored by Judge Johnson, Judge Price joined Judge Johnson’s
opinion, making it a five-judge majority opinion of the court. See id. at 617-27
                                         9
(Johnson, J., majority) (noting that Judge Price joins Judge Johnson’s opinion); Id.
at 627-30 (Price, J., concurring) (stating that Judge Price joins Judge Johnson’s
opinion and referring to Judge Johnson’s opinion as the “majority opinion”).

       Justice Hervey dissented, and three justices joined her dissent. She stated she
would require the defendant to present a sufficient record showing a police officer
deliberately employed the two-step questioning tactic. Id. at 631 (Hervey, J.,
dissenting). She cited cases that stand for the proposition that it is the defendant’s
burden to prove his statements were the result of custodial interrogation and then
the burden shifts to the State to defeat the defendant’s claim. Id. at 643. Here, it is
undisputed that appellant was in custody when he made his statements.10 He had
been arrested pursuant to a valid arrest warrant.

       As in Martinez, the record in this case also is incomplete.11 There is no
evidence of what transpired before the officer who testified began his interrogation
at 10 or 10:30 p.m. Appellant confessed, and the officer “came out of the video
room . . . and told [the other officers] that [appellant] had confessed” and “we need
to get it on video.” A few minutes later, at “about midnight,” the officer reentered
the interrogation room, started the recording, and read appellant his Miranda
warnings. Although the officer stated on the video that he read appellant his
Miranda warnings “a little earlier,” no evidence shows when this occurred and thus
whether it occurred before appellant made any incriminating statements off-
camera. On the video, appellant repeats earlier unrecorded statements, which are
not in the record, but the officer refers to them numerous times during the video

       10
         The State argued otherwise in its brief but admitted during oral argument that appellant
was in custody for purposes of Miranda.
       11
          The Martinez court held that an incomplete record does not preclude an appellate court
from analyzing whether a two-step questioning tactic was deliberately employed because it is the
State’s burden to show the confession is admissible. See Martinez, 272 S.W.3d at 623.

                                               10
recording.12 The State presented no evidence that the two-step interrogation was
not deliberately employed to undermine the Miranda warnings.

       Appellant, however, presented some evidence that the interrogation
technique was deliberately employed to undermine the Miranda warnings.
Appellant testified “at least four officers” interviewed him, including the one who
testified at the hearing. His counsel asked, “Did they ever read you your Miranda
warnings? Warnings mean you have a right to have a lawyer.” Appellant
responded, “No, sir.” Appellant testified the first time he received Miranda
warnings was after he confessed. He said the officer told him, “I want you to tell
me again and first I’ve got to read you your Miranda rights.” Appellant further
testified that when the other officers were interviewing him, “I was telling them
that I knew my rights and I didn’t want to talk.”13 He said the officers were telling
him, “[I]f I didn’t want to die, I needed to say something.”14

       Though the trial court was entitled to discredit appellant’s testimony, the
State had the burden to show that its interrogation technique was not deliberately
employed to undermine the Miranda warnings. See id. at 623-24. Appellant was in
custody for Miranda purposes when he was being interrogated. He gave both
statements to law-enforcement officers after he had been arrested pursuant to a
valid arrest warrant. Both statements were given at a police station. No evidence
was presented by the State that officers read appellant his Miranda warnings until
       12
           For example, after administering the Miranda warnings, the officer begins the video
interrogation by stating, “Tell me what we talked about earlier.” The officer also states, “Earlier
you said you were out drinking with a friend. Tell me what happened.” “Earlier you said the
passenger door was open.” “Earlier you said you ran down the street.”
       13
           The officer testified appellant had never asked to stop talking or for an attorney during
the entire course of the officer’s interview of appellant.
       14
          His counsel asked him: “In other words, if you didn’t want to get the death penalty,
you had to . . . tell them?” to which he responded, “Yes, sir.”

                                                11
after the first confession was obtained. This indicates that the absence of Miranda
warnings before the beginning of the interrogation process was not a mistake based
on the interrogating officers’ mistaken belief that appellant was not in custody, but
rather a conscious choice. See id. at 624.

      No curative measures. As set forth above, absent curative measures, the
post-warning statements must be excluded. Seibert, 542 U.S. at 622 (Kennedy, J.,
concurring); Carter, 309 S.W.3d at 37. “[C]urative measures should be designed to
ensure that a reasonable person in the suspect’s situation would understand the
import and effect of the Miranda warning and of the Miranda waiver.” Martinez,
272 S.W.3d at 621; see also Ervin, 333 S.W.3d at 212-13. Curative measures allow
the accused to distinguish the two contexts and appreciate that the interrogation has
taken a new turn. Martinez, 272 S.W.3d at 621; Ervin, 333 S.W.3d at 213.
Examples of appropriate curative measures include (1) a substantial break in time
and circumstances between the unwarned statement and the Miranda warning;
(2) explaining to the defendant that the unwarned statements, taken while in
custody, are likely inadmissible; (3) informing the suspect that, although he
previously gave incriminating information, he is not obligated to repeat it;
(4) interrogating officers refraining from referring to the unwarned statement
unless the defendant refers to it first; or (5) if the defendant does refer to the pre-
Miranda statement, the interrogating officer stating that the defendant is not
obligated to discuss the content of the first statement. Martinez, 272 S.W.3d at
626-27 (referring to examples in Seibert plurality and concurrence). No evidence
was presented that curative measures were taken in this case. We conclude on this
record the trial court’s implicit finding that the officers did not employ a two-step
interrogation technique in a deliberate, calculated way to undermine appellant’s
Miranda warnings is not supported by the record, and it was clear error. Thus, the


                                          12
trial court erred in admitting appellant’s videotaped statement.

      Admission of the statement was harmful. We must determine whether
admitting appellant’s videotaped statement was harmful error requiring reversal.
See Tex. R. App. P. 44.2(a). The admission of incriminating statements made
during a custodial interrogation where no proper Miranda warnings were given
constitutes constitutional error, and this court must reverse unless we determine
beyond a reasonable doubt that the error did not contribute to appellant’s
conviction. See Tex. R. App. P. 44.2(a); Akins v. State, 202 S.W.3d 879, 891-92
(Tex. App.—Fort Worth 2006, pet. ref’d.). In analyzing whether the
constitutionally erroneous admission of a defendant’s statement was harmless, we
review whether the admission of appellant’s statement contributed to the jury’s
verdict of guilty in this cause, regardless of whether there is evidence independent
of the statement that is otherwise sufficient to sustain the jury’s verdict of guilt.
McCarthy v. State, 65 S.W.3d 47, 55 (Tex. Crim. App. 2001). If there is a
reasonable likelihood that the error materially affected the jury’s deliberations,
then the error is not harmless beyond a reasonable doubt. Id.

      A defendant’s statement, especially a statement implicating him in the
commission of the charged offense, is unlike any other evidence that can be
admitted against the defendant. Id. at 55-56. The presence of other overwhelming
evidence that was properly admitted which supports the material fact to which the
inadmissible evidence was directed may be an important factor in the evaluation of
harm. Wall v. State, 184 S.W.3d 730, 746 (Tex. Crim. App. 2006). However, a
confession is likely to leave an indelible impact on a jury. McCarthy, 65 S.W.3d at
56.

      If the jury believes that a defendant has admitted the crime, it will
      doubtless be tempted to rest its decision on that evidence alone,
      without careful consideration of the other evidence in the case. Apart,
                                         13
      perhaps, from a videotape of the crime, one would have difficulty
      finding evidence more damaging to a criminal defendant’s plea of
      innocence.
Id. (quoting Arizona v. Fulminante, 499 U.S. 279, 313 (1991) (Kennedy, J.,
concurring)).

      Here, appellant confessed to shooting the two complainants execution-style
as they sat in a car and to stealing the complainants’ marijuana and cars. He also
confessed that he threw the gun he used in the commission of the offenses into a
bayou. The State presented evidence that corroborated the confession. A neighbor
heard gun shots, left his house, and saw the two bodies and a man stumbling
toward the bayou. A witness testified that he walked into a house after the
shooting. The witness testified that a group of people, including appellant, was in
the house, and the people were celebrating. The witness testified, “They said that
they had shot somebody.” He said “they” showed him a bag of marijuana. He
could not remember who showed him the bag, but he “guess[ed]” it was appellant.
However, he said appellant “was not really the one that was speaking that much.”
He said “they” told him “they” had a gun “that they threw away.” He also said
appellant’s accomplice Walter Martinez did most of the talking.

      Another witness had gone to the house with the first witness to obtain
marijuana. That witness said appellant and Martinez were there with a group of
people. Appellant and Martinez were “jumpy.” The second witness testified that
appellant said “[t]hey killed two people because of a bag of weed.” Appellant also
purportedly said that “[t]hey had [the complainants’] car in their garage.” Defense
counsel elicited testimony from the second witness that in his earlier statement to
police, he said Martinez did the talking, not appellant. No evidence was presented
that appellant was the shooter other than appellant’s videotaped confession.
Although some evidence of appellant’s guilt corroborates his confession, we

                                        14
cannot say there is no reasonable likelihood that the State’s use of appellant’s
statement materially affected the jury’s deliberations. See id.

       We sustain appellant’s sole issue. We reverse the judgment of the trial court
and remand for a new trial.15 See Tex. R. App. P. 43.2(d); McCarthy, 65 S.W.3d at
56.


                                             /s/     Martha Hill Jamison
                                                     Justice



Panel consists of Justices Frost, Christopher, and Jamison.
Publish — TEX. R. APP. P. 47.2(b).




       15
          A motion to suppress is a specialized objection to the admissibility of evidence. Black v
State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012). When an appellate court concludes that
certain evidence is inadmissible, this is generally the law of the case. See Howlett v. State, 994
S.W. 2d 663, 666 (Tex. Crim. App. 1999) (“[A]n appellate court’s resolution of a question of law
in a previous appeal of the same case will govern the disposition of the same issue when raised in
a subsequent appeal.”). The law of the case doctrine may apply to a motion to suppress. See, e.g.,
Satterwhite v State, 858 S.W. 2d 412, 430 (Tex. Crim. App. 1993) (applying law of the case
because none of the facts surrounding search had changed); Ware v State, 736 S.W.2d 700, 701
(Tex. Crim. App. 1987) (applying law of the case when the facts and legal issues were “virtually
identical”). However, though we have concluded that the State did not meet its burden of proof
on this record, nothing prevents the State from offering additional evidence in support of the
admissibility of the confession on remand. See Black, 362 S.W.3d at 633-34; Montalvo v State,
846 S.W. 2d 133, 136 (Tex. App.—Austin 1993, no pet.).

                                               15
