Affirmed and Opinion Filed March 24, 2014 

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In The 

## Court of Appeals 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 Holcomb 1 Opinion by Justice Holcomb Esteban Jimenez was convicted of the murder of Jesus Contreras Sa ldana after the jury rejected the lesser-included offens e of aggravated assault. The tr ial 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.
B ACKGROUND On September 10, 2011, McKinney police offi cers 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 heli copter to Parkland

1 The Hon. Charles R. Holcomb, Retired Judge, sitting by assignment.–2– Hospital where he later died of multiple wounds. Officers recovered a gr ay shirt at the scene and formed a perimeter around the area. One offi cer 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 we re hanging out at the location, which was next to a convenience store, talking and drinking b eer. Appellant approached the group and Saldana confronted appellant about a bi cycle appellant had sold that Saldana had let appellant use. Saldana wanted the bicycle bac k. 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, th en appellant got angry and want ed 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 pus hed Saldana. The two men then started punching each other. Salinas testified appe llant was the aggressor. Saldana turned away to leave the fight, but appellant pulled out a small knife and repeated ly 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 afte r 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 observe d Riley advise appellant of the Miranda rights and appellant appeared to understand them. Appellant wished to speak to the officers. Under crossexamination, Cisneros agreed he did not expressl y ask appellant if he w ould waive his rights.–3– 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 di d not want to speak with the officers or that he wished to terminate the intervie w. Cisneros testified State’s Exhibit no. 53, the video-recording of the first interview with appellant, was a true and accurate record ing of the interview. In the first interview, appellant said Saldana had ‘kick[ed appellant] in the balls” so appellant “scratched” Saldana with a bottle. A ppellant 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 clai med that Saldana tried to take appellant’s money before kicking him, and that appellant ha d 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 th e 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 ri ghts or his statutory rights, a ppellant specifically limited his complaint to the “Federal Constitutional right.” Th e trial court stated on the record that based on Berghuis v. Thompkins , 2 an affirmative waiver is not neces sary and that he must review the interview as a whole to determine whether ther e 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 affirmativ e waiver.” With that as the basis of appellant’s

2 Berghuis v. Thompkins , 560 U.S. 370 (2010).–4– objection, the trial court overruled it. The court as ked appellant if he had anything else, to which appellant responded no. The trial court admitte d State’s Exhibit no. 53 into evidence. Based on the interview, officers searched the ar ea 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 sear ched the location again and eventually found a small knife just over the fence of a nearby busine ss. 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, appell ant again insisted that Saldana attacked him and assaulted him twice before and that appellant had only “scratched” a ppellant 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 Sald ana was not seriously hurt. The video-recording of appellant’s second interview was admitted into evidence, without objection, as State’s Exhibit no. 54.–5– A NALYSIS 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 a ppellant’s complaint on appeal does not comport with his objection at trial, the trial court corr ectly admitted the exhibit, and that any error was harmless because State’s Exhibit no. 54, which wa s 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 ad mit 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 objec tion. On appeal, appellant cont ends the record does not show and the trial court did not find that appellant “u nderstood 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 suppor t a different legal theory on appeal.” Rezac v. State , 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); see also T EX
. R. A PP . P. 33.1. Moreover, assuming appellant preserved his enti re 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 th at appellant knowingly, intentionally, a nd 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)).–6– “[T]he relinquishment of the righ t 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, neith er 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) (pros ecution need not show express waiver of Miranda rights). A waiver need not assume a pa rticular form and, in some cases, can be clearly inferred from the actions a nd words of the person interrogated. See North Carolina v. Butler , 441 U.S. 369, 373 (1979). “An ‘implicit waiver’ of the ‘rig ht 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 s howing the accused was given the proper warnings, understood the warnings and their consequen ces, and made an uncoerced statement. See Berghuis , 560 U.S. at 384. “As a general propositi on, the law can presume that an individual who, with a full understanding of hi s or her rights, acts in a ma nner inconsistent with their exercise has made a deliberate choice to reli nquish the protection those rights afford.” Id. at 385. The record shows that appe llant, on the video-recording, was advised in Spanish of the Miranda warnings. Although appellant was not specifi cally 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–7– 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. T hus 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 ad mission of State’s Exhibit no. 53 is harmless. It is well-established that any error in th e admission of evidence is rendered harmless when substantially the same evidence is ad mitted 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 stat ement to the police, was admitted into evidence without objection. Th e 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 we nt 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 Stat e’s Exhibit no. 53 was harmless. We overrule appellant’s sole issue.

3 Appellant did not file a motion to suppre ss the statements he made during the first interview. He objected to the admission o f 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).–8– We affirm the trial court’s judgment.

Do Not Publish T EX
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. P. 47 130303F.U05 /Charles R. Holcomb/ CHARLES R. HOLCOMB JUSTICE, ASSIGNED–9– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ESTEBAN JIMENEZ, Appellant
No. 05-13-00303-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 401st Judicial District Court, Collin County, Texas Trial Court Cause No. 401-82506-2011. Opinion delivered by Justice Holcomb, Justices Francis and Brown participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered March 24, 2014

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