Jose Francisco Ibarra v. State

Affirmed and Memorandum Opinion filed January 29, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-00862-CR
JOSE FRANCISCO IBARRA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1276105
MEMORANDUM OPINION
In two issues, appellant Jose Francisco Ibarra challenges his conviction of
aggravated assault. We affirm.
I. BACKGROUND
During 2010, appellant had a dating relationship with the complainant. On
August 28, 2010, appellant’s friend drove appellant and the complainant to
appellant’s house; appellant’s friend then left. Once inside, appellant hid the
complainant’s cell phone and identification card. He berated the complainant and
made her perform a variety of demeaning tasks, such as sweeping while naked,
washing his feet, and eating the contents of a seasoning packet. He also
brandished a box cutter and threatened to kill the complainant. Appellant refused
to allow the complainant to leave and sexually assaulted her.
At some point, when appellant left the room, the complainant found her cell
phone and called a family member who in turn contacted the police. Officers soon
surrounded appellant’s house. Appellant and the complainant exited through a
window. Officers arrested appellant, and the complainant was taken to a hospital.
Officers conducted a protective sweep of appellant’s house, during which they
took photographs. Officers later procured and executed a search warrant for the
house. Officers seized several items from the house, including the box cutter, a
wallet, and the seasoning packet (the “challenged items”).
Appellant was charged with aggravated assault. The jury convicted
appellant and sentenced him to thirty years’ confinement.
II. MOTION TO SUPPRESS
In his first issue, appellant argues the trial court erred by denying his motion
to suppress the challenged items seized from his house because the seizure was
tainted by the allegedly unlawful protective sweep.
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard, affording almost total deference to the court’s determination of historical
facts that depend on credibility and demeanor, but reviewing de novo the court’s
application of law to the facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997). When, as in this case, there are no findings of fact in the record, we
uphold the trial court’s ruling on any theory of law applicable to the case and
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presume the court made implicit findings in support of its ruling if those findings
are supported by the record. State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim.
App. 2000).
Appellant spends several pages of his brief arguing why the officers’
protective sweep of his house was unlawful. He also contends the officers
exceeded any basis for, and the scope of, a protective sweep by photographing the
challenged items during the sweep. According to appellant, officers used
information gained during the unlawful protective sweep to secure the search
warrant, meaning all evidence seized pursuant to the warrant was inadmissible.
See Pitonyak v. State, 253 S.W.3d 834, 848 (Tex. App.—Austin 2008, pet. ref’d)
(“A search warrant may not be procured lawfully by the use of unlawfully
obtained information.”). We disagree.
There is no evidence in the record supporting appellant’s contention that
information gained, or photographs taken, during the protective sweep were used
to secure the warrant. Neither the warrant nor the affidavit used to secure the
warrant mention this information. Photographs incorporated into the warrant and
affidavit depict the house’s exterior, not the challenged items. The officer who
prepared the affidavit testified that he used “pictures to get a warrant,” but clarified
that he “got the photographs of the front of the residence.” Moreover, the officer
gathered information regarding the crime by interviewing the complainant at the
hospital. In fact, the officer testified he was unaware of the allegation that
appellant used a weapon during the incident until told so by the complainant.
Appellant has not established that the search warrant was tainted by
information garnered during the allegedly unlawful protective sweep.
Accordingly, the trial court did not err by denying appellant’s motion to suppress.
See, e.g., State v. Powell, 306 S.W.3d 761, 769–71 (Tex. Crim. App. 2010)
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(holding evidence was not tainted by allegedly unlawful seizure because the
evidence was ultimately discovered pursuant to lawful search warrant). We
overrule appellant’s first issue.
III. EXTRANEOUS OFFENSE
In his second issue, appellant contends the trial court erred by allowing the
complainant to testify regarding the sexual assault he committed against her.
Specifically, appellant argues this evidence was inadmissible under Texas Rules of
Evidence 404(b) and 403.
The State contends that, even if the trial court erred by allowing the
complainant to testify about the sexual assault, the error was rendered harmless
because the same evidence was later admitted without objection. See Anderson v.
State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (“Inadmissible evidence can
be rendered harmless if other evidence at trial is admitted without objection and it
proves the same fact that the inadmissible evidence sought to prove.”). We agree.
The sexual-assault nurse who examined the complainant testified without objection
regarding the complainant’s account of the sexual assault. Additionally, the
nurse’s medical report, containing the same information, was admitted without
objection. Therefore, any error the trial court committed by allowing the
complainant to testify about the sexual assault was rendered harmless. We
overrule appellant’s second issue.
We affirm the trial court’s judgment.
/s/ John Donovan
Justice
Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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