                              NUMBER 13-08-00198-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


LEONARDO RAMIREZ,                                                                Appellant,

                                              v.

THE STATE OF TEXAS,                                                              Appellee.


                     On appeal from the 92nd District Court
                           of Hidalgo County, Texas.


                           MEMORANDUM OPINION

             Before Justices Yañez, Rodriguez, and Benavides
                Memorandum Opinion by Justice Rodriguez

       A jury found appellant, Leonardo Ramirez, guilty of attempted murder. See TEX .

PENAL CODE ANN . § 19.02(b)(1), (2) (Vernon 2003) ("A person commits [the offense of

murder] if he (1) intentionally or knowingly causes the death of an individual; [or] (2) intends

to cause serious bodily injury and commits an act clearly dangerous to human life that
causes the death of an individual."); see also TEX . PENAL CODE ANN . § 15.01(a) (Vernon

2003) ("A person commits [the offense of criminal attempt] if, with specific intent to commit

an offense, he does an act amounting to more than mere preparation that tends but fails

to effect the commission of the offense intended."). The trial court sentenced appellant to

life imprisonment.        By one issue, appellant contends that the trial court committed

reversible error by admitting appellant's written statement at trial. We affirm.

                                             I. BACKGROUND 1

        Appellant filed a motion to suppress the defendant's written or oral statements

contending, among other things, that his written statement had been obtained in violation

of article 38.22 of the Texas Code of Criminal Procedure. See TEX . CODE CRIM . PROC .

ANN . art. 38.22 (Vernon 2005).

        At the suppression hearing, Ricardo Arredondo, an investigator, testified that when

he spoke with appellant, he asked him whether he preferred English or Spanish. Appellant

responded, "Whatever language, didn't matter . . . because [I am] not a wetback."

Investigator Arredondo proceeded to read the warnings in Spanish and then in English.

Investigator Arredondo advised appellant of the following: (1) he had a right to an attorney

and if he could not employ one, he had a right to have one appointed to him; (2) he had

a right remain silent; (3) anything that he said could be used against him in court; (4) he

had a right to an attorney prior to and during the questioning; (5) he had a right to have an

attorney appointed to advise him prior to and during any questioning; and (5) he had the

right to terminate the interview. Appellant acknowledged that he understood his rights by


        1
         As this is a m em orandum opinion, and the parties are fam iliar with the facts, we will not recite them
here except as necessary to explain the Court's decision and the basic reasons for it. See T EX . R. A PP . P.
47.4.
                                                       2
initialing next to each warning on the Spanish Miranda form and next to the English

warnings listed on his written statement.

       State's exhibits number one and number two were admitted through Investigator

Arredondo's testimony. State's exhibit number one included two documents—the Miranda

warnings in English and the Spanish version of the warnings. Appellant's written statement

typed by Investigator Arredondo in English and signed by appellant was admitted as

State's exhibit two.

       The trial court denied appellant's motions and at trial, admitted appellant's written

statement without objection.2 Appellant was convicted of attempted murder and was

sentenced to life in prison. Appellant filed a motion for new trial, claiming that his

statement should not have been admitted because the State did not comply with article

38.22. See id. After a hearing on appellant's motion for new trial, the motion was denied.

This appeal ensued.

                                II. ADMISSION OF WRITTEN STATEMENT

                           A. Standard of Review and Applicable Law

       We review a trial court's ruling on the admissibility of evidence under an abuse of

discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We

must "review the trial court's ruling in light of what was before the trial court at the time the

ruling was made." Id. If the trial court's ruling is correct under any theory of law applicable

to the case and reasonably supported by the record, we must uphold the ruling. Id.; Lerma

v. State, 172 S.W.3d 219, 225 (Tex. App.–Corpus Christi 2005, pet. ref'd). "In reviewing

a trial court's ruling on a motion to suppress, we give almost total deference to a trial

       2
           Appellant does not challenge, on appeal, the adm ission of his oral statem ent.
                                                      3
court's determination of historical facts, and we review de novo the trial court's application

of the law." Luna v. State, 268 S.W.3d 594, 602 (Tex. Crim. App. 2008).

       Texas Code of Criminal Procedure article 38.22, section 2 states:

       No written statement made by an accused as a result of custodial
       interrogation is admissible as evidence against him in any criminal
       proceeding unless it is shown on the face of the statement that:

              (a) the accused, prior to making the statement, either received from
              a magistrate the warning provided in article 15.17 of this code or
              received from the person to whom the statement is made a warning
              that:

                     (1) he has the right to remain silent and not make any
                     statement at all and that any statement he makes may be used
                     against him at his trial;

                     (2) any statement he makes may be used as evidence against
                     him in court;

                     (3) he has the right to have a lawyer present to advise him
                     prior to and during any questioning;

                     (4) if he is unable to employ a lawyer, he has the right to have
                     a lawyer appointed to advise him prior to and during any
                     questioning; and

                     (5) he has the right to terminate the interview at any time; and

              (b) the accused, prior to and during the making of the statement,
              knowingly, intelligently, and voluntarily waived the rights set out in the
              warning prescribed by subsection (a) of this section.

TEX . CODE CRIM . PROC . ANN . art. 38.22, § 2.

                                       B. Discussion

       By his sole issue, appellant contends that the trial court erred in admitting his written

statement.    Specifically, appellant argues that the warnings he received did not




                                               4
substantially comply with article 38.22. See id. Appellant urges this Court to review the

evidence presented at his motion for new trial. The State counters that, when we review

a trial court's decision to admit or exclude evidence at trial, we are only allowed to review

the evidence before the trial court at the time that it ruled. We agree with the State.

        As a reviewing court, we must examine the record as it existed at the time of the

suppression hearing. O'Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000); Hoyos

v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998) ("As for appellant's citation to

evidence elicited during the motion for new trial hearing, that evidence does not impact the

validity of the trial court's ruling at trial."); see Dragoo v. State, 96 S.W.3d 308, 313 (Tex.

Crim. App. 2003) ("As a general rule, an appellate court reviewing a trial court's ruling on

the admission or exclusion of evidence must do so in light of the arguments, information,

and evidence that was available to the trial court at the time it ruled."). Therefore, we will

not consider the evidence appellant presented at his motion for new trial hearing or any

evidence not considered by the trial court when it made its ruling.3 See Rangel v. State,

250 S.W.3d 96, 98 (Tex. Crim. App. 2008) (per curiam) (refusing to "examine the propriety

of a trial judge's ruling based on evidence that the trial judge had no opportunity to consider

when he made his ruling"); Hoyos, 982 S.W.2d at 422; Reyes v. State, 69 S.W.3d 725, 736

(Tex. App.–Corpus Christi 2002, pet. ref'd) ("[W]e consider only evidence adduced at the

suppression hearing because the ruling was based on it rather than evidence introduced

later.").


        3
          W e note that appellant does not assert and the record shows that the issue was not re-litigated by
the parties at trial. See Rachel v. State, 917 S.W .2d 799, 809 (Tex. Crim . App. 1996) (providing that when
the issue is consensually re-litigated by the parties at trial, the reviewing court m ay consider relevant
testim ony).



                                                     5
       At the suppression hearing, the State introduced evidence that Investigator

Arredondo provided appellant with the warnings required by article 38.22 prior to taking his

statement. See TEX . CRIM . CODE PROC . ANN . art. 38.22. Although appellant told the

officers he preferred Spanish, he also stated that it did not matter whether Investigator

Arredondo spoke English or Spanish. Investigator Arredondo testified that he read the

warnings listed on appellant's written statement to him. Appellant's written statement

contained the following language:

       I, Leonardo Ramirez, after being duly warned by [Investigator Arredondo],
       the person to whom this statement is made, that:

              1. I have the right to remain silent and not make any statement at all
              and that any statement I make may be used against me at my trial;

              ...

              2. Any statement I make may be used as evidence against me in
              court;

              ...

              3. I have the right to have a lawyer present to advise me prior to and
              during any questioning;

              ...

              4. If I am unable to employ a lawyer, I have the right to have a lawyer
              appointed to advise me prior to and during any questioning;

              ...

              5. I have the right to terminate the interview at any time.

       And prior to and during the making of this statement, I knowingly, intelligently
       and voluntarily waive those rights set forth in this document and having
       knowingly, intelligently and voluntarily waived those rights, I do hereby make
       the following free and voluntary statement . . .



                                              6
These are the warnings required by article 38.22. See id. Investigator Arredondo also

testified that he told appellant to write his initials next to each warning that he understood.

Appellant initialed next to each warning in the space provided.

       Appellant's written statement followed the acknowledged warnings. Therefore, the

face of appellant's statement shows substantial compliance with article 38.22. See Garcia

v. State, 919 S.W.2d 370, 386 (Tex. Crim. App. 1996) (concluding that the language

contained in appellant's voluntary statement clearly contained the warnings required by

38.22). Thus, the evidence at the time the trial court made its ruling demonstrates that it

acted within its discretion by denying appellant's motion to suppress his written statement

and admitting the statement at trial. We overrule appellant's sole issue.

                                      III. CONCLUSION

       We affirm the trial court's judgment.



                                                          NELDA V. RODRIGUEZ
                                                          Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this 14th day of May, 2009.




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