A Texas death row inmate convicted of
strangling and raping a teenage girl in Waco more than 20 years
ago lost an appeal Monday before the U.S. Supreme Court, moving
him closer to execution.
The justices refused to review the case of
Ramiro Rubi Ibarra, who has argued he was mentally retarded and
ineligible for capital punishment under Supreme Court guidelines.
The Mexican-born Ibarra, 53, also had been
claiming he was denied legal assistance from the Mexican
consulate following his arrest, a violation of Geneva Convention
protections. The Supreme Court in March rejected that claim in
another Texas case involving condemned prisoner Jose Medellin.
He and Ibarra are among 14 Mexicans on death row in the state.
Ibarra does not have an execution date. A
federal district judge had issued a stay for Ibarra pending the
outcome of the Medellin case. State attorneys said the outcome
of that case should allow the stay to be lifted.
Ibarra's lawyer, Russell Hunt Jr., did not
immediately return a telephone call Monday from The Associated
In a state court hearing in 2006, Ibarra's
lawyers argued the former construction worker had an IQ of 65,
below the retardation threshold of 70. The judge conducting the
hearing denied the claim after the only evidence of Ibarra's
retardation came from an unsworn affidavit from a psychologist
in Puerto Rico.
The question of Ibarra's mental retardation
never was an issue at his trial in Waco in 1997, a decade after
According to prison records, 16-year-old
Maria Zuniga was looking after two young nephews at her family's
home in Waco when she was attacked by Ibarra, a family
acquaintance. She was beaten, raped and strangled with an
electrical cord. Ibarra was arrested the day her body was found.
Hair and blood sample evidence taken from him
were thrown out by a judge after Ibarra's lawyer, John Segrest,
showed the search warrant used by police was improper. Ibarra
A change in state law in 1995 allowed police
to go back into the case, obtain another warrant and get
evidence to tie Ibarra to the slaying. He was arrested in
Segrest later was elected district attorney
in McLennan County and recused his office from the trial.
TEXAS COURT OF APPEALS, THIRD DISTRICT,
Ramiro Rubi Ibarra, Appellant
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL
COUNTY, 264TH JUDICIAL DISTRICT
HONORABLE RICK MORRIS, JUDGE
The jury found appellant guilty of the offense of aggravated
sexual assault of a child younger than fourteen years of age.
See Tex. Penal Code Ann. § 22.021 (West 1994 & Supp.
1999). The trial court assessed punishment at confinement for
life. Appellant asserts four points of error, contending that
appellant was denied a fair trial because: (1) the State's
attorney engaged in prosecutorial misconduct; (2) a witness made
a nonresponsive answer that alluded to an inadmissible
extraneous offense; (3) the trial court refused appellant's
request for a limiting instruction concerning extraneous
offenses; and (4) the trial court caused the life sentence in
the instant cause to run consecutively with a death penalty
previously assessed by another court. We will overrule
appellant's points of error and affirm the judgment of the trial
Appellant's complaint of prosecutorial misconduct is based on
the prosecutor: (1) asking a witness leading questions which
injected the prosecutor's personal opinion; (2) insinuating that
appellant was deceiving the jury by exercising his right to have
an interpreter; and (3) making a jury argument that injected new
and harmful facts. Appellant contends the cumulative effect of
the foregoing acts constituted prosecutorial misconduct and
denied appellant a fair trial.
Appellant's first complaint is directed to alleged leading
questions asking the victim why he went to appellant's house
after appellant had anally raped him on two occasions. After the
victim answered the prosecutor's question that he was scared of
appellant, the prosecutor asked why he went when he was scared
of appellant. The victim answered that his cousin, appellant's
son, was the only person he had to play with.
Allowing leading questions to be asked does not constitute an
abuse of discretion unless a defendant can demonstrate that he
was unduly prejudiced by virtue of such questions. See
Newsome v. State, 829 S.W.2d 260, 270 (Tex. App.--Dallas
1992, no pet.). Assuming arguendo that the questions were
leading, appellant has failed to demonstrate undue prejudice as
the result of the complained of questions. Moreover, there is no
suggestion from the record that the question supplied the
witness with an answer. See id. at 270.
Appellant urges that the State insinuated that appellant was
deceiving the jury by exercising his right to have an
interpreter. See Tex. Code Crim. Proc. Ann. art. 38.30
(West Supp. 1999). In response to questions by the prosecutor,
officer Lola Price testified that she talked to appellant while
he was in jail for three to five minutes; that she spoke in
English and appellant appeared to understand her.
The trial court overruled appellant's objection that the
prosecutor was attempting to deny appellant's right to have an
interpreter and insinuating that appellant was being deceitful
in asking for an interpreter. Earlier in the trial, the victim
had testified that appellant's threat to kill him if he told was
made in English. Given the fact that appellant was utilizing an
interpreter in the trial, we perceive no error in showing that
appellant appeared to understand English when Price talked to
him. Otherwise, the jury would have had reason to doubt the
victim's testimony that appellant's threat was made in English.
complaint about the prosecutor attempting to inject matters
outside the record is based on the following argument by the
What kind -- what is in your heart and in your mind when you do
those sort of things to a young man, and you do it over and over?
You think it was for sexual gratification? He's got a wife in
the other room. It's because he's big into pain, he's big into
hurting people, he's big into robbing you of your dignity, and
anything else he can take from you.
MR. HURLEY [defense counsel]: Your Honor, I'm going to object to
this. This is outside the evidence. He's arguing matters that
are not in evidence.
THE COURT: Your objection is overruled.
But, ladies and gentlemen, what the attorneys say, either side,
is not the evidence in the case. You're the judges of the
evidence, and it's your recollection of the evidence and
testimony that controls.
Go ahead, Mr. Carroll
MR. CARROLL [prosecutor]: It wasn't a crime for sex. This is a
crime where he can dominate, abuse, inflict pain, and hurt
people. That's what he's into. That's what's in his heart.
That's what's in his mind. That's what he lives for.
Appellant cites Dickinson v. State, 685 S.W.2d 320
(Tex. Crim. App. 1984), to support his position that the
prosecutor used his argument to inject new and harmful facts in
this case. Dickinson held that the prosecutor's
argument that the defendant had not shown the jury that he was
remorseful or shameful constituted a comment on the defendant's
failure to testify in violation of both the federal and state
constitutions as well as our statutory law. Id. at 323.
For an improper argument to constitute reversible error the
record must be viewed to determine whether there is a reasonable
possibility the improper argument might have contributed to the
conviction. See Wilson v. State, 938 S.W.2d 57, 61
(Tex. Crim. App. 1996). The prosecutor's argument about what was
in appellant's mind can be inferred from conduct of, remarks by,
and circumstances surrounding the acts engaged in by appellant.
See Turner v. State, 600 S.W.2d 927, 929 (Tex. Crim.
Given the age of the victim (7 or 8) at the time of the offense,
the prosecutor's argument may be characterized as a legitimate
deduction from the evidence. Assuming that the argument
constituted error, we find there was not a reasonable
probability that it contributed to appellant's conviction.
Appellant urges that the cumulative effect of the foregoing acts
of prosecutorial misconduct constituted reversible error. Before
reversal results from nonconstitutional error it must have
affected the substantial rights of the accused. See
Tex. R. App. P. 44.2(b). After reviewing the record and
conducting an analysis of each of appellant's three complaints,
we hold that the cumulative affect of the three alleged errors
did not affect appellant's substantial rights. Appellant's first
point of error is overruled.
In his second point of error, appellant asserts that he was
denied a fair trial when a witness made a non-responsive answer
that alluded to an inadmissible extraneous offense. During
defense counsel's cross-examination of the victim's mother, the
Q: Ms. Gandara, I believe you stated that when Mr. Ibarra [appellant]
and your sister, Maria, moved from Waco into the house on North
Main that they had a child who was sick at that time and that it
shortly thereafter died; is that correct?
A: Okay. Not that time. He died before he got incarcerated.
Pursuant to defense counsel's request, the trial court
instructed the witness to "just answer the questions he asks."
Appellant's objection to the answer was sustained, but the trial
court overruled defense counsel's request for an instruction to
the jury to not consider the witness' response.
Prior to the foregoing response, the witness had testified
without objection: "[L]ater on back when he [appellant] was
released from being incarcerated, then he [appellant] started
staying at the house." No error is preserved for review where
the same evidence had been admitted in evidence without
objection. See Ethington v. State, 819 S.W.2d 854, 858
(Tex. Crim. App. 1991). Moreover, after a nonresponsive answer
objection is made, the trial court must be advised why the
answer is inadmissible. See Smith v. State, 763 S.W.2d
836, 841 (Tex. App.--Dallas 1988, no pet.). Appellant's second
point of error is overruled.
In his third point of error, appellant contends that he was
denied a fair trial as a result of the trial court not granting
his request for a limiting instruction on testimony about
extraneous offenses until the witness had completed his
testimony. The indictment alleged the offense occurred "on or
about June 15, 1990."
Trial was held in December 1997, when the victim was 15 years of
age. The victim delayed telling his mother and the police about
this and other acts because he was afraid of appellant. The
victim testified that when he was 7 or 8 he went to appellant's
house to play with his cousin. When the victim refused
appellant's request to pull his pants down, appellant threatened
to kill him. After the victim complied with appellant's request,
appellant committed anal sodomy on the victim.
The victim's testimony about subsequent violations form the
basis of appellant's complaint. There appears to be no question
about the admissibility of subsequent offenses committed by
appellant against the victim for the purpose of showing the
state of mind of appellant and the victim, and the previous and
subsequent relationship between appellant and the victim.
See Tex. Code Crim. Proc. Ann. art. 38.37 (West 1995);
Ernst v. State, 971 S.W.2d 698, 700 (Tex. App.--Austin
1998, no pet.).
When the prosecutor asked the victim if something similar
happened to him a few days after the offense, defense counsel
asked, and the prosecutor stated, the purpose for which the
evidence was offered. Before the victim could answer the
prosecutor's question, defense counsel asked the court to give a
limiting instruction. The court responded, "Overruled right now."
Defense counsel asked for, and was given, a running objection
based on the testimony having a prejudicial effect that
outweighed its probative value.
The victim testified that a few days after the first offense
appellant committed a sexual assault on him identical to the
first one. Again, appellant threatened to kill him if he told
anyone. The victim testified that on two subsequent occasions
appellant tried to get the victim to masturbate him. Appellant's
only request for a limiting instruction came before the victim
answered the prosecutor's question about the first extraneous
At the conclusion of the victim's testimony, the trial court
gave appellant's requested instruction limiting the purpose for
which the jury might consider the testimony of the extraneous
offenses. In addition, the trial court's charge to the jury
included a like instruction.
Appellant raises no question about the sufficiency of the trial
court's instructions, only that the oral instruction following
the victim's testimony was not timely. Appellant urges that
limiting instructions operate most effectively when given
simultaneously with the admission of the evidence, and that the
failure to do so does not constitute an efficacious application
of Rule 105(a) of the Texas Rules of Criminal Evidence.
Appellant opines that jurors may have improperly used the
evidence of extraneous offenses to form a negative opinion of
appellant prior to receiving limiting instructions from the
Appellant's only request for a limiting instruction came prior
to the time the trial court had an opportunity to hear testimony
on the first extraneous offense. Assuming the trial court erred
in waiting until the completion of the examination of the victim
to give a limiting instruction, we must determine whether
reversible error is shown. A non-constitutional error is
harmless if the reviewing court, after reviewing the entire
record, determines that no substantial rights of the defendant
were affected. See Tex. R. App. P. 44.2(b); Fowler
v. State, 958 S.W.2d 853, 865 (Tex. App.--Waco 1997, pet.
The trial court gave a limiting instruction at the close of the
witness' testimony and repeated it in its written charge to the
jury. Appellant utilized the evidence of the extraneous offense,
urging that the victim was not credible because he continued to
be around appellant after the alleged extraneous acts of sexual
abuse. We find that the failure of the trial court to give a
limiting instruction immediately following the extraneous
offense testimony did not affect the substantial rights of
appellant and did not influence the verdict. Appellant's third
point of error is overruled.
In his fourth point of error, appellant urges that he was denied
a fair trial when the trial court granted the State's request to
have the life sentence in the instant cause run consecutively
with a death penalty that appellant had previously received in
McLennan County. Appellant argues that the law does not compel
the doing of that which is impossible. Accordingly, appellant
could not serve a life sentence if he is put to death.
The trial court has the discretion to order a sentence in the
cause before it to begin when a sentence in a prior case ceases
to operate. See Tex. Code Crim. Proc. Ann. art. 42.08 (West
Supp. 1999). No penalty is excluded from art. 42.08. The Court
of Criminal Appeals is authorized under certain conditions to
reform a sentence of death to a sentence of confinement for life.
See Tex. Code Crim. Proc. Ann. art. 44.251 (West Supp.
1999). Thus, there are circumstances when it cannot be said that
the order cumulating the sentences compels the impossible. In
the event the sentence of death is carried out, we perceive no
way in which appellant was harmed by the cumulation order.
Appellant's fourth point of error is overruled.
The judgment of the trial court is affirmed.
Tom G. Davis,
B. A. Smith, Powers* and Davis**
Before John E. Powers, Senior Justice (retired), Third Court of
Appeals, sitting by assignment. See Tex. Gov't Code
Ann. § 74.003(b) (West 1998).
** Before Tom G. Davis, Judge (retired),
Court of Criminal Appeals, sitting by assignment. See
Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1. Rule 105(a) provides:
When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury accordingly;
but, in the absence of such request the court's action in
admitting such evidence without limitation shall not be a ground
for complaint on appeal.
Tex. R. Crim. Evid. 105(a).
THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. WR-48,832-02 & WR-48,832-03
EX PARTE RAMIRO RUBI IBARRA
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. 1996-634-C
FROM THE 54th DISTRICT COURT OF MCLENNAN COUNTY
subsequent applications for writs of habeas corpus filed
pursuant to Texas Code of Criminal Procedure, Article 11.071,
Section 5. Applicant asserts that he is mentally retarded and
cannot be executed and that his case must be reviewed because he
was not informed of his right to consular notification.
was convicted of capital murder on September 22, 1997. We
affirmed the conviction and sentence on direct appeal.
Ibarra v. State, 11 S.W.3d 189 (Tex. Crim. App.1999). On
June 21, 1999, applicant filed his initial application for writ
of habeas corpus pursuant to Article 11.071. We denied relief.
Ex parte Ibarra WR-48,832-01 (Tex. Crim. App. April 4,
2001). On June 19, 2003, applicant filed a subsequent
application in which he raised two issues. This Court determined
that one of those claims, that he was mentally retarded and
could not be executed, met the requirements of Article 11.071,
Section 5, and remanded the cause to the convicting court for
resolution of the claim. We have reviewed the record that has
now been returned to this Court. We agree with the convicting
court that applicant has not established that he is mentally
retarded. Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim.
App. 2004). Relief is denied on applicant's claim that he is
mentally retarded and may not be executed.
pendency of applicant's first subsequent application, a second
subsequent application was filed in which applicant asserted
that his rights under the Vienna Convention on Consular
Relations had been violated and that the International Court of
Justice and President George W. Bush had directed that his case
be again reviewed for harm that may have arisen from this
alleged treaty violation. In Ex parte Medellin, __S.W.3d__,
AP-75,207 (Tex. Crim. App. November 15, 2006), we held that
these arguments do not meet the requirements for consideration
of subsequent claims under Article 11.071, Section 5. Applicant
raises the same issues we considered and rejected in
Medellin. We therefore hold that applicant has not met the
requirements of Section 5 and dismiss this second subsequent
IT IS SO
ORDERED THIS THE 26TH DAY OF SEPTEMBER, 2007.