Opinion
NUMBER 13-16-00097-CR
06-08-2017
PEDRO ALBERTO IBANEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Contreras
Appellant Pedro Alberto Ibanez was convicted of murder, a first-degree felony, and aggravated assault with a deadly weapon, a second-degree felony. See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 22.02(a)(2) (West, Westlaw through 2015 R.S.). He was sentenced to thirty and ten years' imprisonment for the two counts, respectively, with the sentences ordered to run concurrently. On appeal, Ibanez raises five issues regarding the exclusion of expert testimony and other evidence, and regarding comments made by the trial court during a witness's testimony. We affirm.
I. BACKGROUND
At around 4:00 a.m. on the morning of August 22, 2010, Brownsville police received a call regarding a severely injured individual found on Acapulco Avenue. The victim, later identified as Gabriel Garcia, had four bullet wounds and apparent tire tracks on his torso. Garcia was taken to the hospital. Later the same morning, another shooting victim was found on Bernal Drive, only a few blocks away from where Garcia was found. This second victim, identified as Luis Alvarado, was found slumped over in the passenger seat in a white truck. He had several bullet wounds on his back and head. Alvarado was pronounced dead at the scene.
Police determined that the white truck found on Bernal Drive matched the description given by two witnesses of a vehicle that had left the scene on Acapulco Avenue. They also determined that the truck was registered to Garcia's father. A power switch which was missing from the truck was found at the crime scene on Acapulco Avenue. Police thus determined that the two shootings were related.
A witness who lived on Acapulco Avenue testified that, on the date and time in question, he heard screeching tires outside his house, so he looked out the window and saw a white truck. Two men exited the truck from two doors on the truck's right side and started walking toward the house, at which point the witness flickered his lights to get them to leave. The men left in the truck, screeching their tires and hitting a stop sign on their way out of the neighborhood. Shortly thereafter, the witness heard about four or five gunshots. He went outside and saw a severely injured man lying on the road.
Based upon information given by Alvarado's estranged wife, police brought Ibanez in for questioning as a witness the following evening. At that time, Ibanez did not indicate that he was with the victims at the time of the shooting.
In canvassing Acapulco Avenue the next day, police encountered two individuals who stated that they were with the victims prior to the shootings. Those individuals told police that Ibanez was also with them, so Ibanez was asked to come in for further questioning. During this second interview, Ibanez conceded that he was in the vehicle at the time of the shootings. He stated that he was sitting in the rear driver's-side seat in Garcia's white truck, while Alvarado was sitting in the front passenger seat and Garcia was driving. Ibanez told police that the group went to pick up Miguel Campos, who sat in the rear passenger-side seat. He told police that Campos shot Garcia and Alvarado from the back seat. Ibanez stated that he was able to escape by opening the rear door of the truck when Campos's gun jammed. Photographs taken by police showed that, when the truck was recovered, there were various items, including jumper cables and a box of speakers, on the rear driver's-side seat.
Ibanez further told police in this second interview that Campos was able to escape in a different vehicle. He described this vehicle as a white SUV with tinted windows and a Longhorn sticker with the word "Texas" on it. Ibanez told police that this was consistent with the "Cuernos" prison gang. Ibanez identified Campos from a photo lineup.
Police interviewed Campos, who denied being in Garcia's truck on the night of the shootings. After interviewing several people whom Campos claimed to have been with that night, police determined that Campos was not the shooter.
Meanwhile, Garcia was recovering from his severe wounds in a San Antonio hospital and was eventually able to be interviewed. Garcia told police that he, Alvarado, and Ibanez were the only people in the truck that night, and that Ibanez was the one who shot him and Alvarado. Ibanez was then brought in for questioning for a third time. During this third interview, Ibanez denied that he knew Campos. After being advised of his rights, Ibanez admitted to shooting Garcia and Alvarado but claimed that it was in self-defense. Specifically, Ibanez told police that he shot both men because Alvarado was "showing off" a gun, had talked about his membership in a gang, and had demanded that Ibanez give him a bag of marijuana.
Ibanez was arrested and jailed. In a call from jail to his grandfather, Ibanez revealed where the gun he used was located, and police retrieved the gun. Ballistic analysis established that the bullet fragments and shells recovered from the crime scenes were consistent with the gun. Police also obtained surveillance video from a convenience store showing that Ibanez was with both victims shortly before the shootings.
A Cameron County jury convicted Ibanez of the murder of Alvarado and the aggravated assault of Garcia. This appeal followed.
II. DISCUSSION
A. Expert Testimony
By his first and third issues, Ibanez argues that the trial court erred by excluding the testimony of two expert witnesses, Virginia Wood, Ed.D., and Dionicio Cortez.
1. Standard of Review and Applicable Law
We review a trial court's ruling on the admissibility of evidence for abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). The ruling will not be disturbed on appeal unless it was "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Id. at 83.
Texas Rule of Evidence 702 provides that a witness "who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." TEX. R. EVID. 702. For expert testimony to be admissible under this rule, the trial court must determine that "the testimony is sufficiently reliable and relevant to help the jury in reaching accurate results." Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992); see TEX. R. EVID. 104(a) (providing that the trial court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible). The burden is on the proponent to show by clear and convincing evidence that the expert testimony is reliable and relevant. Kelly, 824 S.W.2d at 573.
2. Virginia Wood
Wood, a former psychology professor at the University of Texas at Brownsville, was named by the defense as an expert witness and testified at a pre-trial Daubert/Kelly hearing. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kelly, 824 S.W.2d at 573. Wood testified that she was a professor for forty-two years before retiring in 2013. According to her curriculum vitae, she has published two studies on memory entitled "A disruptive effect of bizarreness on memory for relational and contextual details of self-performed and other-performed acts" and "Memory discrimination for self-performed and imagined acts: Bizarreness effects in false recognition."
At the Daubert/Kelly hearing, Wood explained that memory is a "sensory experience" and that when we remember something, "we really have to reconstruct what the brain has already processed." She stated that "each time you invoke [a] memory, it may change because it becomes reconstructed again." Wood testified that false confessions "are a problem" in part because certain individuals are more suggestible than others. She elaborated:
If an individual has low intelligence, low self esteem, if they begin to doubt their own memory or themselves, if they're seeking out attention from others, especially authority, if they want to please others, if they're immature, if they're under a lot of stress, if they suffer from fatigue or depression, and, of course, alcohol and drug abuse throws off their thinking process completely.
Wood stated on cross-examination that she has not met Ibanez and is not familiar with the facts of his case. She further stated that she has not published any papers specifically regarding false confessions, although she did prepare a report for defense counsel reviewing the literature on false confessions. She stated that she has not previously been designated as an expert witness on false confessions.
When asked what specifically her expert testimony would be, Wood replied:
The expert opinion that I'm giving is a summary of the research that's out there that has indicated that under certain conditions from the studies, that people will give a false confession and then later recant it, that there are psychological and environmental circumstances that cause an individual to give a false confession.When asked how her testimony would assist the jury, Wood replied:
Well, I think it assists the jury in making them aware that individuals will say things under duress that perhaps are not true or that they don't mean. I think it also helps them to understand that the memory is not a hundred percent correct, that you can't rely on what you think you know; you have to really examine and investigate it.Wood stated that she could not, however, state how her testimony would apply to this particular case because she was not familiar with the facts of the case.
The trial court ruled that Wood was qualified as an expert as to memory and suggestibility, but that she did not have "the expertise or the experience dealing with false confessions in order for her to render an opinion as to the validity of the science of false confessions." Later, Wood testified at trial in part as follows:
Most people think that when they remember something, that it is absolutely correct. Studies have shown that it may be fifty percent correct. It gets convoluted with other information that the individual may have. The more times that you're asked questions or they're led or encouraged in different directions to recall certain aspects of a given situation, the more they incorporate different aspects of what is already stored in memory. So when an individual says, "Oh, I remember that, and it was exactly like this," you can figure maybe fifty percent of that is correct.Wood summarized various academic works establishing how false memories may be generated and she stated that, according to research, people are more likely to misremember events that are traumatic. She stated that "[i]f you want to get accuracy about what someone has observed, you need to do it in the first few minutes after they have observed it. If you don't do that, then it becomes convoluted."
We find that the trial court did not abuse its discretion in declining to allow Wood to testify as an expert on false confessions. Wood's substantial experience as a research professor established her expertise on the subjects of suggestibility and the fallibility of memory, but she conceded that she had no practical experience with false confessions in particular, nor had she published any studies regarding false confessions. Further, although Wood identified several personal traits which could indicate that an individual may be more susceptible to making a false confession, she did not know whether Ibanez exhibited any of those traits because she had never met him and did not know the facts of the case. The trial court may therefore have concluded that Wood's testimony regarding false confessions would not have been relevant to any issue before the jury. See Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996) (holding that, for expert testimony to be relevant, "[t]he expert must make an effort to tie pertinent facts of the case to the scientific principles which are the subject of his testimony"); Pierce v. State, 777 S.W.2d 399, 416 (Tex. Crim. App. 1989) (noting that expert's failure to "fit his testimony to the evidence . . . reduces the likelihood that the jury would have been measurably aided" by the testimony); cf. Tillman v. State, 354 S.W.3d 425, 439 (Tex. Crim. App. 2011) (holding expert testimony regarding reliability of eyewitness identification to be admissible in part because the expert "responded to a series of hypotheticals, which mirrored the procedure used here and, thus, exposed the expert to the pertinent facts of this specific case").
There was evidence indicating that Ibanez suffered from some form of mental illness. In particular, a psychiatrist that examined Ibanez in December of 2011 testified that Ibanez was "clearly paranoid" and "very delusional" and was hearing voices. He diagnosed Ibanez with a psychotic disorder. However, another psychiatrist examined Ibanez earlier and determined that Ibanez was not psychotic and that he was able to stand trial. The record does not indicate that defense counsel sought to have Ibanez declared incompetent to stand trial or to raise an insanity defense. See TEX. CODE CRIM. PROC. ANN. arts. 46B, 46C (West, Westlaw through 2015 R.S.).
We note additionally that Wood was permitted to testify at trial that memories in general may be only "fifty percent correct" and that memories of traumatic events are more reliable when they are close in time to the event being recalled. Moreover, the trial court stated when making its ruling at the conclusion of the Daubert hearing that Wood would be permitted to testify regarding suggestibility, if not regarding false confessions in particular. Therefore, although counsel was not permitted to ask Wood about what traits may make a person more likely to make a false confession, there was nothing preventing counsel from asking about what traits may make a person more suggestible. For these reasons, Ibanez cannot show that he was harmed by the trial court's ruling. See TEX. R. APP. P. 44.2. We overrule his first issue.
3. Dionicio Cortez
Cortez was named as an expert witness on gang affiliation. Outside the presence of the jury, Cortez was shown a photograph of Alvarado's leg. Cortez testified that Alvarado had a tattoo on his leg depicting a five-pointed crown and that this indicated that Alvarado was affiliated with the Latin Kings, which Cortez described as a "violent hate gang." Cortez stated that there are four types of gangs and that "violent hate gangs" are the most dangerous type. The trial court ruled as follows:
I'm not going to put that to the jury unless you're going to leave out the fact that the victim was a member—that the victim had this tattoo and that means he's a member of the Latin Kings, because there is nothing to show that the victim—that the defendant knew that he was a part of the Latin Kings.
On appeal, Ibanez argues that the trial court erred in excluding the testimony because it was relevant to the issue of self-defense and because it was admissible under article 38.36 of the code of criminal procedure to show that he was afraid of Alvarado. See TEX. CODE CRIM. PROC. ANN. art. 38.36 (West, Westlaw through 2015 R.S.) (providing that, in a murder trial, "the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense").
The trial court did not abuse its discretion in disallowing this testimony. As the trial court noted, there was no evidence showing that Ibanez could have known about the tattoo at the time of the shooting because, as the photograph indicated, it had been covered by Alvarado's pant leg. Therefore, Cortez's testimony was not relevant to the condition of Ibanez's mind at the time of the offense. See id.; see also Neal v. State, No. 12-14-00158-CR, 2016 WL 1446138, at *8 (Tex. App.—Tyler Apr. 13, 2016, no pet.) (mem. op., not designated for publication) (holding trial court did not err by excluding evidence of victim's gang affiliation because there was no evidence appellant knew the victim or was aware of any character the victim might have had for violence). Ibanez did not meet his burden to establish that the testimony was relevant to any fact in issue. See Kelly, 824 S.W.2d at 573; see also TEX. R. EVID. 702. We overrule his third issue.
B. Statements to Police
By his second issue, Ibanez contends that the trial court erred in denying his pre-trial motion to suppress the three statements he made to police.
Ibanez came to the police station voluntarily on three separate occasions to make the three recorded oral statements. Police did not provide Miranda warnings prior to taking the first two statements, during which Ibanez was interviewed as a witness. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3; Miranda v. Arizona, 384 U.S. 436 (1966). However, Ibanez was advised of his Miranda rights prior to making his third statement, during which he admitted shooting the victims. Ibanez moved to suppress the first two statements on grounds that he was not provided with Miranda warnings, and he moved to suppress all three statements on grounds that he lacked the mental capacity to give a voluntary statement.
The prosecutor stated that, although Ibanez denied shooting the victims in his first two statements, she may want to introduce the statements into evidence for impeachment purposes.
Prior to receiving testimony at the pre-trial suppression hearing, the trial court had a brief discussion with the prosecutor and defense counsel regarding whether Ibanez was in custody for the first two statements. The trial court remarked: "The fact that [Ibanez] came in on his own and was allowed to leave and go home tells me non-custodial, because he was actually allowed to leave, according to what [defense counsel] is telling me." The trial court then viewed a portion of the recording of the third statement, and it heard testimony from the two Brownsville Police Department officers that conducted the interviews.
According to the officers, on the day of the shootings, Ibanez was sought for questioning as a witness. For this first interview, Ibanez's mother brought him to the police station and left with him at the conclusion of the interview. A day or two later, after officers learned that Ibanez was in the car with the victims, they sought to interview him again as a witness. For this second interview, Ibanez's mother again brought him to the police station and two police officers drove him home. Finally, several weeks later, after Garcia convalesced and told police that Ibanez was the shooter, police brought Ibanez in again for questioning. For this third interview, the officers read Ibanez his Miranda rights and Ibanez signed a form indicating that he understood and waived those rights. Ibanez then confessed to the shootings and was arrested.
Both officers testified that Ibanez appeared to be competent, understood their questions, and did not appear intoxicated during the interviews. He was permitted to answer questions in either English or Spanish. The officers denied that there was anything odd or out of the ordinary about the interviews.
Transcripts of the second and third interviews, with the Spanish portions translated into English, were entered into evidence at trial.
Following the officers' testimony, the trial court heard brief argument during which defense counsel argued that the statements are inadmissible because the officers employed a "three-step interrogation technique" which the United States Supreme Court held was improper in Missouri v. Seibert, 542 U.S. 600 (2004). The trial court observed as follows:
I can tell you right now that just based on my observations and based on the testimony, based on his having the ability, as far as competency to understand the questions and his answers in the third video, I would say that he looked like he was able to understand and comprehend and interact, and his demeanor suggests to me that he did—he had a good understanding of what was going on and the consequences. So unless the Missouri vs. Seibert changes my mind, I am inclined at this time to admit the third one and find that it is voluntary.
The trial court did not rule, either explicitly or implicitly, on Ibanez's objections to the first and second recorded statements. See TEX. R. APP. P. 33.1(a)(2) (stating that, as a prerequisite to presenting a complaint for appellate review, the record must show that the trial court expressly or implicitly ruled on the complaint). As to the third statement, the trial court indicated that it was "inclined" to rule that it was admissible but would review Missouri v. Seibert prior to making a final ruling. This was insufficient to constitute an explicit or implicit ruling on the motion to suppress. See id.; Salinas v. State, 163 S.W.3d 734, 742 (Tex. Crim. App. 2005) (holding that issue regarding appellant's motion to restrict media coverage of his trial was not preserved for appeal because, although trial court stated that "it was not inclined to limit the media as broadly" as requested by appellant, appellant did not ultimately obtain a ruling on the issue). And, Ibanez does not direct us to any point in the record showing that the court ever made a final ruling, after reviewing Missouri v. Seibert, on the admissibility of the third statement.
When the statement was admitted as evidence at trial, defense counsel objected only on the basis it included inadmissible evidence of other crimes, wrongs, or bad acts committed by Ibanez. See TEX. R. EVID. 404(b). The trial court overruled the objection.
We therefore conclude that the issue of whether the statements were admissible was not preserved for appellate review. See TEX. R. APP. P. 33.1(a)(2). Ibanez's second issue is overruled.
Ibanez further argues by his second issue that the trial court erred by not admitting testimony by Wood regarding false confessions. We have already concluded that the trial court did not err in this regard.
We note that a trial court must ordinarily issue written findings of fact and conclusions of law when ruling on the voluntariness of a defendant's custodial statement. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West, Westlaw through 2015 R.S.); Vasquez v. State, 411 S.W.3d 918, 920 (Tex. Crim. App. 2013). However, in light of our conclusion that the issue has not been preserved for review, such findings and conclusions are unnecessary here. See TEX. R. APP. P. 47.1.
C. Impeachment by Treatise
By his fifth issue, Ibanez contends that the trial court erred by denying defense counsel's request to introduce text from a learned treatise in order to impeach the testimony of one of the State's expert witnesses. See TEX. R. EVID. 803(18). Specifically, during the testimony of the State's ballistics expert, Richard Hitchcox, defense counsel sought to have the witness read an excerpt from a treatise entitled Firearms and Fingerprints by Edward Hueske, detailing new research regarding the possibility of obtaining latent fingerprints from people who have handled firearms cartridges before they are fired. Counsel argued that the excerpt would assist the jury by showing that "there was not a thorough job" of investigation done by law enforcement. The trial court denied the request and suggested to defense counsel that he recall the State's fingerprint expert to testify regarding whether the treatise is authoritative.
The entire excerpt, read into the record by defense counsel in his bill of exceptions, is as follows:
"For the first time we can get prints from people who have handled a cartridge case before it was fired," said Dr. John Bond, honorary fellow at Leicester University and scientific support manager at the Northamptons[h]ire police department. The procedure works by applying an electric charge to a metal object—say, a gun or fired cartridge case—that has been coated with a fine-grain conducting powder, similar to that used in photocopiers. Even if the print has been washed off, it leaves a slight corrosion on the metal, and this attracts the powder when the charge is applied, revealing a residual fingerprint. Even if heat from the discharge of a firearm vaporizes a fingerprint, the residual corrosion can allow it to not only be located but also restored, according to Bond. "As a result of the research, cases dating back decades could be reopened because the underlying print never disappears."
Texas Rule of Evidence 803(18) establishes an exception to the hearsay rule for "[a] statement contained in a treatise, periodical, or pamphlet" if: "(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice." Id. (providing that "[i]f admitted, the statement may be read into evidence but not received as an exhibit"). Here, Hitchcox recognized that the Hueske treatise was authoritative, but only "the firearms portion of it." Hitchcox stated "I do not recognize anything regarding the fingerprints, because I'm not a latent print examiner, and I have no expertise in that area. . . . [M]y opinion [on fingerprints] would be no better than any lay witness who came into this courtroom." No other expert witness testified that the treatise was reliable authority as to fingerprints, and the trial court did not take judicial notice of that fact. Accordingly, the trial court did not err in determining that the excerpt of the treatise involving the recovery of latent fingerprints was inadmissible hearsay notwithstanding Rule 803(18).
Ibanez's fifth issue is overruled.
D. Comments by Trial Court
Ibanez contends by his fourth issue that the trial court made improper comments regarding the weight of the evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.05 (West, Westlaw through 2015 R.S.) ("In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.").
The remark at issue occurred during the testimony of Juan Hernandez Jr., a Brownsville Police Department detective. Hernandez testified that he examined Garcia's truck, where Alvarado's body was found, on August 24, 2010. On cross-examination, defense counsel pointed out that Hernandez's written report stated that the truck was examined on September 24, 2010, which was the day that Ibanez was arrested. Hernandez testified repeatedly that this written date was an error and that, in fact, he examined the truck on August 24. The following colloquy then occurred:
Q. [Defense counsel] And if you were correct in your report that it was September 24th, then we'd have more than a month for [the evidence] to degrade. Correct?
A. [Hernandez] Again, that date is incorrect. It does not follow what I did. It is August.
Q. I accept your testimony that you were wrong, but the question is, that month would have been critical, also, would it not?
A. Sir, may I emphasize again, I made an error in the naming of the month.
[Prosecutor]: Your Honor, this has been asked and answered.
THE COURT: Okay. We all got it. We got it. He put the wrong date. Let's move on.
[Defense counsel]: Well, I object to the comment of the Court as to the weight of the evidence.
THE COURT: Okay. His testimony is that he put the wrong date. How's that? Better?
[Defense counsel]: That's better, and I'd ask that the jury be instructed to disregard the Court's comment.
THE COURT: Okay. Disregard my comment as to that he put the wrong date; rather, that is his testimony that he put
the wrong date; okay? Now, let's move along, please.Ibanez asserts that the trial court's statement that Hernandez "put the wrong date" was an improper comment calculated to convey to the jury the trial court's opinion of the case thereby violating his right to due process. See id.; Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003) (holding that a trial judge must refrain from making any remark calculated to convey his opinion of the case because jurors give special and peculiar weight to the language and conduct of the trial judge).
[Defense counsel]: Yes. I move for a mistrial.
THE COURT: That will be denied.
We disagree. "The trial court improperly comments on the weight of the evidence if it makes a statement that implies approval of the State's argument, indicates disbelief in the defense's position, or diminishes the credibility of the defense's approach to the case." Simon v. State, 203 S.W.3d 581, 590 (Tex. App.—Houston [14th Dist.] 2006, no pet.). But "[i]t is not improper for a court to interject in order to correct a misstatement or misrepresentation of previously admitted testimony" or to clear up a point of confusion. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). Further, "[a] trial judge has broad discretion in maintaining control and expediting the trial" and a judge's expression of "irritation at the defense attorney does not translate to an indication as to the judge's views about the defendant's guilt or innocence." Id.
The comment at issue here was clearly an attempt by the trial court to expedite the trial by clearing up any confusion that may have existed regarding Hernandez's testimony. Immediately after making the challenged comment, the trial court corrected herself and clarified that she was reiterating Hernandez's testimony that he put the wrong date on the report. The trial court also, upon defense counsel's request, instructed the jury to disregard her previous comment. We conclude that this was sufficient to cure any error. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (observing that reviewing courts "generally presume the jury follows the trial court's instructions in the manner presented"); Aschbacher v. State, 61 S.W.3d 532, 539 (Tex. App.—San Antonio 2001, pet. ref'd) (observing that an "instruction by the trial judge to the jury to disregard any comments made by him or her is generally sufficient to cure any error arising from his or her statements"). Ibanez's fourth issue is overruled.
III. CONCLUSION
The trial court's judgment is affirmed.
DORI CONTRERAS
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 8th day of June, 2017.