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

O P I N I O N

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 
2

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 3.3The 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.”
3

testified. He did not know whether the other officers had given appellant Miranda

warnings before initiating the interrogation.4The 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.
4

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.6See 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).
5

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 
6

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 offcamera, 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 offcamera incriminating statements. Therefore, we must address whether the State 

deliberately employed a two-step interrogation technique in a deliberate way to 
7

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.
8

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).
9

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 
10

(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 offcamera. 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.
11

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.”
12

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 preMiranda 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 
13

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, 
14

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 
15

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.).