Affirmed and Opinion Filed March 24, 2014




                                          Court of Appeals
                                                          S      In The


                                   Fifth District of Texas at Dallas
                                                      No. 05-13-00303-CR

                                            ESTEBAN JIMENEZ, Appellant
                                                       V.
                                           THE STATE OF TEXAS, Appellee

                                On Appeal from the 401st Judicial District Court
                                             Collin County, Texas
                                    Trial Court Cause No. 401-82506-2011

                                         MEMORANDUM OPINION
                                    Before Justices Francis, Brown, and Holcomb1
                                            Opinion by Justice Holcomb
            Esteban Jimenez was convicted of the murder of Jesus Contreras Saldana after the jury

rejected the lesser-included offense of aggravated assault. The trial judge sentenced appellant to

thirty-eight years’ imprisonment. In his sole issue on appeal, appellant contends the trial court

erred by admitting State’s Exhibit no. 53, appellant’s first recorded statement, into evidence

because the statement was “insufficiently Mirandized.” We affirm the trial court’s judgment.

                                                           BACKGROUND

          On September 10, 2011, McKinney police officers responded to a 911 call about a

stabbing at a local day-labor gathering location. They arrived within minutes and found Saldana

bleeding from stab wounds to his body. Saldana was transported by helicopter to Parkland

   1
       The Hon. Charles R. Holcomb, Retired Judge, sitting by assignment.
Hospital where he later died of multiple wounds.     Officers recovered a gray shirt at the scene

and formed a perimeter around the area. One officer encountered appellant running shirtless out

of a wooded area. When appellant saw the police, he surrendered.

       Alfredo Salinas testified that he, Saldana, and other men were hanging out at the location,

which was next to a convenience store, talking and drinking beer. Appellant approached the

group and Saldana confronted appellant about a bicycle appellant had sold that Saldana had let

appellant use. Saldana wanted the bicycle back. Appellant offered Saldana the $20 appellant

had received for the bicycle, but Saldana refused it and said he wanted the bicycle. Appellant

and Saldana continued to argue, then appellant got angry and wanted to fight. Appellant said

“come on, come on, let’s throw punches, come on.” The other men told Saldana to leave, so

Saldana walked away and sat on a bench.

       Later, Saldana returned to the group. He and appellant began arguing again. Appellant

repeated that he wanted to fight, and he pushed Saldana. The two men then started punching

each other. Salinas testified appellant was the aggressor. Saldana turned away to leave the fight,

but appellant pulled out a small knife and repeatedly stabbed Saldana. The onlookers shouted at

appellant, so he threw the knife over a fence and ran away. One of the onlookers chased

appellant and grabbed his shirt. Appellant escaped by punching the onlooker and taking off his

shirt. Salinas called 911.

       Appellant was taken into custody shortly after the police arrived and taken to the police

station. McKinney Detective Steve Riley conducted a video-recorded interview with appellant.

McKinney police officer Jaime Cisneros, a Spanish-speaking officer, translated for appellant.

Cisneros testified that he observed Riley advise appellant of the Miranda rights and appellant

appeared to understand them.      Appellant wished to speak to the officers.        Under cross-

examination, Cisneros agreed he did not expressly ask appellant if he would waive his rights.

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Rather, Cisneros just read them and continued the interview.          Cisneros later repeated that

appellant appeared to understand his rights when they were read and appeared to want to speak

with the officers. Appellant never indicated he did not want to speak with the officers or that he

wished to terminate the interview. Cisneros testified State’s Exhibit no. 53, the video-recording

of the first interview with appellant, was a true and accurate recording of the interview.

          In the first interview, appellant said Saldana had ‘kick[ed appellant] in the balls” so

appellant “scratched” Saldana with a bottle. Appellant claimed that Saldana took advantage of

him because Saldana was big and appellant was small.             Appellant claimed Saldana had

mistreated him in the past. Appellant also claimed that Saldana tried to take appellant’s money

before kicking him, and that appellant had tried to call 911 about Saldana’s injuries.

          When the State moved to introduce State’s Exhibit no. 53 into evidence, appellant

objected. The trial court removed the jury from the courtroom and allowed appellant to make his

objection. Appellant objected to the admission of the exhibit on the basis that, although advised

of his rights, appellant was not asked if would give up the rights or would insist on the presence

of an attorney. Rather, the rights were simply read to appellant and the officers proceeded to

interview him. Appellant claimed “[i]t was an ineffective admonishment of his Constitutional

rights, and he did not waive those rights as he should have.” When asked if he was asserting his

federal or state constitutional rights or his statutory rights, appellant specifically limited his

complaint to the “Federal Constitutional right.” The trial court stated on the record that based on

Berghuis v. Thompkins,2 an affirmative waiver is not necessary and that he must review the

interview as a whole to determine whether there were improper interrogation techniques. The

trial court further stated that he had not heard “anything yet that would indicate to [the judge]

that this was coercive, just a lack of an affirmative waiver.” With that as the basis of appellant’s

   2
       Berghuis v. Thompkins, 560 U.S. 370 (2010).



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objection, the trial court overruled it. The court asked appellant if he had anything else, to which

appellant responded no. The trial court admitted State’s Exhibit no. 53 into evidence.

       Based on the interview, officers searched the area for a broken bottle, but could not find

anything. They later learned from Salinas that appellant had used a knife, and the hospital

confirmed Saldana had stab wounds. Officers searched the location again and eventually found a

small knife just over the fence of a nearby business. The size of the blade was consistent with

Saldana’s wounds and there was blood on the tip of the blade. DNA testing of the blood showed

it was Saldana’s. Officers also checked the 911 call reports and determined that no calls were

made about the stabbing other than Salinas’s. An autopsy revealed that Saldana had fifteen stab

wounds and four shallow cuts around his body. Several wounds had punctured his heart and

others had punctured his liver, diaphragm, and small intestines.

       After learning Saldana had died, and based on information received from the hospital and

Salinas, officers conducted a second interview with appellant. Prior to the second interview,

officers again read appellant the Miranda warnings in Spanish, and appellant signed a written

waiver of his rights. During the interview, appellant again insisted that Saldana attacked him and

assaulted him twice before and that appellant had only “scratched” appellant with a broken

bottle. When officers informed appellant that Saldana had died and that they had recovered a

knife, appellant admitted he had used a knife, saying he used it to cut his nails. Appellant said he

threw away the knife so the police “wouldn’t find it on me.” Appellant repeated that he was

defending himself and that Saldana had been the one who attacked appellant. Appellant again

claimed he called 911 so Saldana “wouldn’t die,” and insisted Saldana was not seriously hurt.

The video-recording of appellant’s second interview was admitted into evidence, without

objection, as State’s Exhibit no. 54.




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                                            ANALYSIS

       In his sole issue on appeal, appellant contends the trial erred in admitting State’s Exhibit

no. 53 because the statement was “insufficiently Mirandized.” Appellant contends the officers

did nothing more than read appellant the Miranda warning and there was no showing he

understood his rights. The State responds that appellant’s complaint on appeal does not comport

with his objection at trial, the trial court correctly admitted the exhibit, and that any error was

harmless because State’s Exhibit no. 54, which was appellant’s second interview and in which

appellant repeated the same story, but also admitted stabbing Saldana with the knife, was

admitted into evidence without objection.

       We review the trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). A trial

court abuses its discretion by admitting or excluding evidence only if its decision “lies outside

the zone of reasonable disagreement.” See id.

       At trial, appellant claimed he did not affirmatively waive his Miranda rights, and

clarified that was his only objection. On appeal, appellant contends the record does not show

and the trial court did not find that appellant “understood his rights even in part, never mind in

full.” This complaint does not comport with the objection raised at trial. “An objection stating

one legal basis may not be used to support a different legal theory on appeal.” Rezac v. State,

782 S.W.2d 869, 870 (Tex. Crim. App. 1990); see also TEX. R. APP. P. 33.1.

       Moreover, assuming appellant preserved his entire complaint, after reviewing the record

as a whole, we conclude the trial court did not abuse its discretion in admitting State’s Exhibit

no. 53. The State had the burden to show by a preponderance of the evidence that appellant

knowingly, intentionally, and voluntarily waived his Miranda rights. See Joseph v. State, 309

S.W.3d 20, 24 (Tex. Crim. App. 2010) (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)).

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“[T]he relinquishment of the right must have been voluntary in the sense that it was the product

of a free and deliberate choice rather than intimidation, coercion, or deception.” Id. at 25. The

waiver must be made with full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it. Id.

       “A valid waiver will not be presumed simply from the silence of the accused after the

warnings are given or simply form the fact that a confession was in fact eventually obtained.”

Id. at 24 (quoting Miranda, 384 U.S. at 475). However, neither a written nor an oral express

waiver is required. Id. (citing Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988));

see also Berghuis v. Thompkins, 560 U.S. 370, 384 (2010) (prosecution need not show express

waiver of Miranda rights). A waiver need not assume a particular form and, in some cases, can

be clearly inferred from the actions and words of the person interrogated. See North Carolina v.

Butler, 441 U.S. 369, 373 (1979). “An ‘implicit waiver’ of the ‘right to remain silent’ is

sufficient to admit a suspect’s statement into evidence.” Berghuis, 560 U.S. at 384.

        In determining whether the waiver is valid, the court must consider the totality of the

circumstances surrounding the interrogation. See Joseph, 309 S.W.2d at 25–26. An implied

waiver of one’s rights is established upon a showing the accused was given the proper warnings,

understood the warnings and their consequences, and made an uncoerced statement.                See

Berghuis, 560 U.S. at 384. “As a general proposition, the law can presume that an individual

who, with a full understanding of his or her rights, acts in a manner inconsistent with their

exercise has made a deliberate choice to relinquish the protection those rights afford.” Id. at 385.

        The record shows that appellant, on the video-recording, was advised in Spanish of the

Miranda warnings. Although appellant was not specifically asked if he wished to waive his

rights, Cisneros testified that appellant appeared to understand his rights, indicated he wished to

speak with the officers, and gave no indication that he wished to remain silent. The trial court

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found that there was no showing of coercion and there is nothing in the record that would lead us

to conclude appellant did not understand his rights. See id.; Ripkowski v. State, 61 S.W.3d 378,

383–85 (Tex. Crim. App. 2001). We further conclude that appellant knew what he was giving

up when he chose to speak with the officers. See Berghuis, 560 U.S. at 385. Thus we conclude

the trial court did not abuse its discretion by admitting State’s Exhibit no. 53 into evidence.3

           Finally, we conclude that any error in the admission of State’s Exhibit no. 53 is harmless.

It is well-established that any error in the admission of evidence is rendered harmless when

substantially the same evidence is admitted elsewhere without objection. See Mayes v. State,

816 S.W.2d 79, 88 (Tex. Crim. App. 1991).

           State’s Exhibit no. 54, the video-recording of appellant’s second statement to the police,

was admitted into evidence without objection. The second statement contained almost the same

initial material as the first statement in that appellant was protecting himself from Saldana and

that Saldana had previously “taken advantage” of appellant due their differences in size.

However, in the second statement, appellant went in to additional detail, admitting he had

stabbed Saldana with the knife rather than “scratching” him with the bottle. Therefore, we

conclude that substantially the same evidence was admitted without objection through State’s

Exhibit no. 54; thus any error in admitting State’s Exhibit no. 53 was harmless. We overrule

appellant’s sole issue.




     3
      Appellant did not file a motion to suppress the statements he made during the first interview. He objected to the admission of the exhibit.
Nevertheless, even were we to apply the bifurcated standard of review for reviewing a ruling on a motion to suppress, we would reach the same
result. See Martinez v. State, 348 S.W.3d 919, 922–23 (Tex. Crim. App. 2011).



                                                                     –7–
       We affirm the trial court’s judgment.



                                                     /Charles R. Holcomb/
                                                     CHARLES R. HOLCOMB
                                                     JUSTICE, ASSIGNED



Do Not Publish
TEX. R. APP. P. 47
130303F.U05




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                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

ESTEBAN JIMENEZ, Appellant                        On Appeal from the 401st Judicial District
                                                  Court, Collin County, Texas
No. 05-13-00303-CR       V.                       Trial Court Cause No. 401-82506-2011.
                                                  Opinion delivered by Justice Holcomb,
THE STATE OF TEXAS, Appellee                      Justices Francis and Brown participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered March 24, 2014




                                                  /Charles R. Holcomb/
                                                  CHARLES R. HOLCOMB
                                                  JUSTICE, ASSIGNED




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