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 Press.

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 the slaying.

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 was released.

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 October 1996.

Segrest later was elected district attorney in McLennan County and recused his office from the trial.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00017-CR

Ramiro Rubi Ibarra, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 46,608

HONORABLE RICK MORRIS, JUDGE PRESIDING

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 court.

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.

Appellant's complaint about the prosecutor attempting to inject matters outside the record is based on the following argument by the prosecutor:

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. App. 1980).

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 following occurred:

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 offense.

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'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. granted).

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, Justice

Before Justices B. A. Smith, Powers^* and Davis^**

Affirmed

Filed: January 14, 1999

*****

^* 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).

IN 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 54^th DISTRICT COURT OF MCLENNAN COUNTY

Per Curiam

ORDER

These are 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.

Applicant 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.

During the 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 application.