In The Court of Appeals Seventh District of Texas at Amarillo
Nos. 07-15-00412-CR 07-16-00124-CR
PAUL RODRIGUEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2014-402,151, Honorable John J. "Trey" McClendon III, Presiding
December 21, 2016
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Paul Rodriguez, appeals his convictions for two counts of aggravated
robbery1 and sentences of fifty years’ incarceration in the Texas Department of Criminal
Justice—Institutional Division. We will affirm the trial court’s judgments.
1 See TEX. PENAL CODE ANN. § 29.03 (West 2011). Factual and Procedural Background
Shortly after midnight on February 1, 2014, a single individual robbed a Lubbock
Dairy Queen. The suspect entered the Dairy Queen from the rear of the building, where
he encountered an employee throwing trash in the dumpster. The suspect hit the
employee in the head with an aluminum baseball bat. The suspect then entered the
store, found the manager, hit her in the arm with the bat, and ordered her to give him all
of the money from the store’s safe. After the manager complied, the suspect ran out the
rear door. The manager contacted the police. No suspect was identified at the time of
the robbery.
Based on several leads, detectives began investigating appellant as a suspect in
the robbery, and appellant agreed to a recorded interview with police. At the beginning
of the interview, appellant was read his Miranda warnings. Appellant repeatedly denied
having any involvement with the robbery through most of the interview. On several
occasions, when police refused to accept his claims of innocence, appellant would ask
to be taken back to his jail cell. However, soon after asserting his right to remain silent,
appellant would reinitiate the interview. After officers informed appellant that his
pregnant girlfriend was a suspected accomplice, appellant confessed to the Dairy
Queen robbery.
During appellant’s trial, a redacted version of appellant’s confession was
admitted into evidence. Defense counsel was able to elicit testimony that the
confession was only a “partial confession” because appellant did not tell the truth
throughout the interview and his confession was only given after officers inferred that
2 appellant’s pregnant girlfriend might be jailed. The State also admitted two recordings
of incriminating jail calls made by appellant to his mother over appellant’s Crawford2
objection. At the close of evidence, the jury returned verdicts convicting appellant of
both counts of aggravated robbery. The trial court sentenced appellant to fifty years’
incarceration. Appellant timely appealed.
By his appeal, appellant presents two issues. By his first issue, appellant
contends that his trial counsel provided him ineffective assistance by not challenging
appellant’s confession on the grounds that the officers failed to terminate the interview
when appellant asserted his right to remain silent. By his second issue, appellant
contends that the trial court abused its discretion in admitting recordings of jail calls into
evidence in violation of appellant’s right to confront witnesses against him.
Ineffective Assistance of Counsel
By his first issue, appellant contends that trial counsel failed to provide effective
assistance by failing to challenge the admission of appellant’s custodial confession on
the basis that he asserted his right to remain silent before the confession was obtained.
To prevail on this issue, appellant must show that his confession was illegally obtained
and that trial counsel was ineffective for not challenging the confession.
Standard of Review
Both the United States and Texas Constitutions guarantee an accused the right
to the effective assistance of counsel. See U.S. CONST. amend. VI; TEX. CONST. art. I,
2 See Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
3 § 10; Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Claims of ineffective assistance of counsel are reviewed under the two-pronged
analysis articulated in Strickland. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999). To show ineffective assistance, a defendant must demonstrate that
(1) counsel’s representation fell below an objective standard of reasonableness, and (2)
there is a reasonable probability that, but for counsel’s deficient performance, the result
of the proceeding would have been different. See Strickland, 466 U.S. at 687-88, 694;
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). There is a strong
presumption that trial counsel’s conduct fell within the wide range of reasonable
professional assistance. Strickland, 466 U.S. at 689. Failure to prove both prongs is
fatal to an ineffectiveness claim. See Lopez, 343 S.W.3d at 142.
The "right to effective assistance of counsel merely ensures the right to
reasonably effective [not perfect] assistance." Robertson v. State, 187 S.W.3d 475, 483
(Tex. Crim. App. 2006) (quoting, with alteration, Ingham v. State, 679 S.W.2d 503, 509
(Tex. Crim. App. 1984) (en banc)). "Isolated instances in the record reflecting errors of
omission or commission do not render counsel's performance ineffective, nor can
ineffective assistance of counsel be established by isolating one portion of trial
counsel's performance for examination." Id. (quoting McFarland v. State, 845 S.W.2d
824, 843 (Tex. Crim. App. 1992) (en banc)). Counsel's performance is judged by "the
totality of the representation," and "judicial scrutiny of counsel's performance must be
highly deferential" with every effort made to eliminate the distorting effects of hindsight.
Id.
4 Law and Analysis
Miranda v. Arizona, 384 U.S. 436, 468-73, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966), delineates specific procedures deemed necessary to protect suspects against
self-incrimination during custodial interrogation. See Watson v. State, 762 S.W.2d 591,
596 (Tex. Crim. App. 1988). A suspect has an absolute right to end a custodial
interrogation at any time. Miranda, 384 U.S. at 473-74 (“Once warnings have been
given, the subsequent procedure is clear. If the individual indicates in any manner, at
any time prior to or during questioning, that he wishes to remain silent, the interrogation
must cease.”). However, the suspect must invoke this right clearly and unambiguously
such that a reasonable officer under the circumstances would understand that the
suspect desired to terminate the interview. See Dowthitt v. State, 931 S.W.2d 244, 257
(Tex. Crim. App. 1996); Kupferer v.
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In The Court of Appeals Seventh District of Texas at Amarillo
Nos. 07-15-00412-CR 07-16-00124-CR
PAUL RODRIGUEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2014-402,151, Honorable John J. "Trey" McClendon III, Presiding
December 21, 2016
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Paul Rodriguez, appeals his convictions for two counts of aggravated
robbery1 and sentences of fifty years’ incarceration in the Texas Department of Criminal
Justice—Institutional Division. We will affirm the trial court’s judgments.
1 See TEX. PENAL CODE ANN. § 29.03 (West 2011). Factual and Procedural Background
Shortly after midnight on February 1, 2014, a single individual robbed a Lubbock
Dairy Queen. The suspect entered the Dairy Queen from the rear of the building, where
he encountered an employee throwing trash in the dumpster. The suspect hit the
employee in the head with an aluminum baseball bat. The suspect then entered the
store, found the manager, hit her in the arm with the bat, and ordered her to give him all
of the money from the store’s safe. After the manager complied, the suspect ran out the
rear door. The manager contacted the police. No suspect was identified at the time of
the robbery.
Based on several leads, detectives began investigating appellant as a suspect in
the robbery, and appellant agreed to a recorded interview with police. At the beginning
of the interview, appellant was read his Miranda warnings. Appellant repeatedly denied
having any involvement with the robbery through most of the interview. On several
occasions, when police refused to accept his claims of innocence, appellant would ask
to be taken back to his jail cell. However, soon after asserting his right to remain silent,
appellant would reinitiate the interview. After officers informed appellant that his
pregnant girlfriend was a suspected accomplice, appellant confessed to the Dairy
Queen robbery.
During appellant’s trial, a redacted version of appellant’s confession was
admitted into evidence. Defense counsel was able to elicit testimony that the
confession was only a “partial confession” because appellant did not tell the truth
throughout the interview and his confession was only given after officers inferred that
2 appellant’s pregnant girlfriend might be jailed. The State also admitted two recordings
of incriminating jail calls made by appellant to his mother over appellant’s Crawford2
objection. At the close of evidence, the jury returned verdicts convicting appellant of
both counts of aggravated robbery. The trial court sentenced appellant to fifty years’
incarceration. Appellant timely appealed.
By his appeal, appellant presents two issues. By his first issue, appellant
contends that his trial counsel provided him ineffective assistance by not challenging
appellant’s confession on the grounds that the officers failed to terminate the interview
when appellant asserted his right to remain silent. By his second issue, appellant
contends that the trial court abused its discretion in admitting recordings of jail calls into
evidence in violation of appellant’s right to confront witnesses against him.
Ineffective Assistance of Counsel
By his first issue, appellant contends that trial counsel failed to provide effective
assistance by failing to challenge the admission of appellant’s custodial confession on
the basis that he asserted his right to remain silent before the confession was obtained.
To prevail on this issue, appellant must show that his confession was illegally obtained
and that trial counsel was ineffective for not challenging the confession.
Standard of Review
Both the United States and Texas Constitutions guarantee an accused the right
to the effective assistance of counsel. See U.S. CONST. amend. VI; TEX. CONST. art. I,
2 See Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
3 § 10; Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Claims of ineffective assistance of counsel are reviewed under the two-pronged
analysis articulated in Strickland. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999). To show ineffective assistance, a defendant must demonstrate that
(1) counsel’s representation fell below an objective standard of reasonableness, and (2)
there is a reasonable probability that, but for counsel’s deficient performance, the result
of the proceeding would have been different. See Strickland, 466 U.S. at 687-88, 694;
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). There is a strong
presumption that trial counsel’s conduct fell within the wide range of reasonable
professional assistance. Strickland, 466 U.S. at 689. Failure to prove both prongs is
fatal to an ineffectiveness claim. See Lopez, 343 S.W.3d at 142.
The "right to effective assistance of counsel merely ensures the right to
reasonably effective [not perfect] assistance." Robertson v. State, 187 S.W.3d 475, 483
(Tex. Crim. App. 2006) (quoting, with alteration, Ingham v. State, 679 S.W.2d 503, 509
(Tex. Crim. App. 1984) (en banc)). "Isolated instances in the record reflecting errors of
omission or commission do not render counsel's performance ineffective, nor can
ineffective assistance of counsel be established by isolating one portion of trial
counsel's performance for examination." Id. (quoting McFarland v. State, 845 S.W.2d
824, 843 (Tex. Crim. App. 1992) (en banc)). Counsel's performance is judged by "the
totality of the representation," and "judicial scrutiny of counsel's performance must be
highly deferential" with every effort made to eliminate the distorting effects of hindsight.
Id.
4 Law and Analysis
Miranda v. Arizona, 384 U.S. 436, 468-73, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966), delineates specific procedures deemed necessary to protect suspects against
self-incrimination during custodial interrogation. See Watson v. State, 762 S.W.2d 591,
596 (Tex. Crim. App. 1988). A suspect has an absolute right to end a custodial
interrogation at any time. Miranda, 384 U.S. at 473-74 (“Once warnings have been
given, the subsequent procedure is clear. If the individual indicates in any manner, at
any time prior to or during questioning, that he wishes to remain silent, the interrogation
must cease.”). However, the suspect must invoke this right clearly and unambiguously
such that a reasonable officer under the circumstances would understand that the
suspect desired to terminate the interview. See Dowthitt v. State, 931 S.W.2d 244, 257
(Tex. Crim. App. 1996); Kupferer v. State, 408 S.W.3d 485, 489 (Tex. App.—Houston
[1st Dist.] 2013, pet. ref’d). A reviewing court must consider the totality of the
circumstances in determining whether a suspect’s right to remain silent was
unambiguously invoked. Kupferer, 408 S.W.3d at 489.
In the present case, the interviewing officers read appellant his Miranda warnings
after which appellant indicated that he wished to knowingly, intelligently, and voluntarily
waive those rights and speak to the officers. Appellant maintained his innocence of the
Dairy Queen robbery for forty-two minutes. During this period of professed innocence,
there were four instances when appellant makes some indication that he might wish to
terminate the interrogation. We note that three of these instances were equivocal. As
to the unequivocal one, the officers scrupulously honored the request and stated that
5 they were terminating the interview. Appellant then said, “Hold up, hold up, time out.
Nah, f*ck that. I didn’t do this, guys.” Thus, appellant reinitiated the interrogation to
profess his innocence.3 See Johnson v. Stephens, No. H-11-2466, 2014 U.S. Dist.
LEXIS 86589, at *16-17 n.5 (S.D. Tex. 2014) (federal courts have determined no
unequivocal invocation of rights when a suspect continues to talk to officers after
mentioning constitutional rights). Considering the totality of the circumstances,
appellant voluntarily spoke with the officers after having been given Miranda warnings
and did not unequivocally assert his right to remain silent. See Beham v. State, 476
S.W.3d 724, 732 (Tex. App.—Texarkana 2015, no pet.); Kupferer, 408 S.W.3d at 489;
see also Johnson, 2014 U.S. Dist. LEXIS 86589, at *16-17 n.5. Consequently, we
conclude that the admission of appellant’s custodial confession would not have been
erroneous even if trial counsel had timely objected to its admission. Clearly then, we
cannot conclude that appellant’s trial counsel’s failure to object to admission of
appellant’s confession constituted ineffective assistance of counsel. We overrule
appellant’s first issue.
Admission of Jail Calls
By his second issue, appellant contends that the trial court’s decision to admit
State’s Exhibit 171, an audio recording of phone conversations between appellant and
his mother, Erma, violated his confrontation rights. The State responds that the content
of the recorded conversations are not testimonial and, therefore, are not subject to
Confrontation Clause analysis.
3 In fact, appellant immediately reinitiated the interrogation to profess his innocence after each of the instances where he made any assertion of his right to remain silent.
6 Standard of Review
Appellant’s second issue challenges the trial court’s decision to admit evidence in
the form of recorded telephone calls made from the jail. We review a trial court's
evidentiary rulings for an abuse of discretion. Oprean v. State, 201 S.W.3d 724, 726
(Tex. Crim. App. 2006); Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005)
(en banc). A trial court does not abuse its discretion if the decision to admit evidence is
within the zone of reasonable disagreement. See Oprean, 201 S.W.3d at 726. If the
trial court's evidentiary decision is supported by the record and there is any theory of
law that would support the ruling, it is not an abuse of discretion. See Osbourn v. State,
92 S.W.3d 531, 538 (Tex. Crim. App. 2002).
Law and Analysis
The Confrontation Clause of the Sixth Amendment provides that an accused in a
criminal proceeding has the right to confront witnesses against him.4 U.S. CONST.
amend. VI; Crawford, 541 U.S. at 42. This right to confrontation bars testimonial
hearsay statements of a witness who does not appear during trial. 5 Crawford, 541 U.S.
at 59; De La Paz, 273 S.W.3d at 680. Whether a statement is testimonial and,
therefore, subject to an accused’s right to confrontation is a question of law that we
review de novo. See Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010);
De La Paz, 273 S.W.3d at 680. In making the determination whether a particular
4 The Texas Constitution provides that, in all criminal prosecutions, the accused “shall be confronted by the witnesses against him . . . .” TEX. CONST. art. I, § 10. 5 It is an exception to this rule when the witness is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine the witness. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (citing Crawford, 541 U.S. at 59).
7 statement is testimonial, we consider whether the statement was (1) ex parte in-court
testimony or its functional equivalent, (2) extrajudicial statements contained in
formalized testimonial materials, or (3) statements that were made under circumstances
which would lead an objective witness to reasonably believe that the statement would
be available for use at a later criminal prosecution. Melendez-Diaz v. Massachusetts,
557 U.S. 305, 309-10, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) (citing Crawford, 541
U.S. at 51-52); Langham, 305 S.W.3d at 576. However, a statement is not testimonial if
it is made or elicited with a primary purpose other than to create “an out-of-court
substitute for trial testimony.” See Michigan v. Bryant, 562 U.S. 344, 358, 131 S. Ct.
1143, 179 L. Ed. 2d 93 (2011); De La Paz, 273 S.W.3d at 680.
The recordings of phone calls that were admitted into evidence against appellant
were not testimonial and, therefore, the trial court did not abuse its discretion in
overruling appellant’s objection. Appellant focuses his argument on the fact that police
had contacted Erma before the phone calls and Erma’s apparent understanding that
phone calls from the jail are recorded. However, nothing in the recordings indicates that
Erma or appellant made any statement with a primary purpose of creating an out-of-
court substitute for trial testimony. See Bryant, 562 U.S. at 358; De La Paz, 273 S.W.3d
at 680. The Fourth Circuit has considered and rejected appellant’s contention that,
because the calls were recorded and might be used in a later criminal prosecution, the
statements made in the calls were testimonial. See United States v. Jones, 716 F.3d
851, 856 (4th Cir. 2013) (citing Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct.
2266, 165 L. Ed. 2d 224 (2006), United States v. Shavers, 693 F.3d 363, 390, 395-96
(3rd Cir. 2012), and United States v. Ellis, 460 F.3d 920, 926 (7th Cir. 2006), for
8 proposition that a declarant’s knowledge that a recorded phone conversation may be
used in a subsequent criminal proceeding does not make the statements contained
therein testimonial). We agree with the reasoning in Jones and conclude that the
recordings of the calls in this case are not testimonial. As such, the trial court did not
abuse its discretion in overruling appellant’s objection. We overrule appellant’s second
issue.
Conclusion
Having overruled both of appellant’s issues, we affirm the judgment of the trial
court.
Mackey K. Hancock Justice
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