Opinion filed August 21, 2015




                                       In The


        Eleventh Court of Appeals
                                     __________

                                No. 11-11-00028-CR
                                     __________

                    ROBERT RUBALCADO, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 358th District Court
                               Ector County, Texas
                         Trial Court Cause No. D-36,711


          MEMORANDUM OPINION ON REMAND
      A jury convicted Robert Rubalcado of nine counts of indecency with a child,
four counts of sexual assault of a child, and seven counts of aggravated sexual assault
of a child. The jury assessed punishment at confinement for a term of twenty years
for each count of indecency with a child, twenty years for each count of sexual
assault of a child, and life imprisonment for each count of aggravated sexual assault
of a child. The sentences were to run concurrently. In an earlier opinion, we
affirmed Appellant’s convictions. Rubalcado v. State, No. 11-11-00028-CR, 2013
WL 364233 (Tex. App.—Eastland Jan. 31, 2013), rev’d, 424 S.W.3d 560 (Tex.
Crim. App. 2014). In doing so, we held that the trial court did not abuse its discretion
when it admitted recordings of “pretextual” phone calls between J.S. and Appellant.
Id. at *9–13. Appellant petitioned the Court of Criminal Appeals for discretionary
review, arguing that the admission of the phone calls violated his Sixth Amendment
right to counsel. Rubalcado v. State, 424 S.W.3d 560, 563 (Tex. Crim. App. 2014).
The Court of Criminal Appeals held that the trial court’s admission of the phone
calls violated Appellant’s right to counsel with respect to the Ector County
prosecution. Id. at 578. The Court of Criminal Appeals reversed the judgment of
this court and remanded the case back to us. Id. We reverse and remand for a new
trial.
                              Scope of Review on Remand
         As a preliminary matter, it is necessary for us to determine the scope of the
matters to be determined upon remand. The Court of Criminal Appeals reversed our
determination that Appellant’s Sixth Amendment right to counsel was not violated.
Id. The court remanded the case back to this court “for further proceedings
consistent with [its] opinion.” As set forth below, we conclude that the Court of
Criminal Appeals remanded the case back to this court for the purpose of conducting
a harm analysis applicable to constitutional errors. See TEX. R. APP. P. 44.2(a). In
reaching this conclusion, we are mindful of the recent decision of the Amarillo Court
of Appeals wherein the court concluded that the Court of Criminal Appeals
determined that the error occurring in the trial below constituted structural error that
was not subject to a harm analysis. Darcy v. State, No. 07-13-00297-CR, 2015 WL
3941794, at *4 (Tex. App.—Amarillo June 25, 2015, no pet. h.) (mem. op., not
designated for publication) (citing Rubalcado, 424 S.W.3d at 578). We respectfully
disagree with our sister court’s reading of the opinion from the Court of Criminal
Appeals.
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      If the Court of Criminal Appeals had determined that the error below
constituted structural error, there would have been no need for the court to have
remanded the case back to this court—it would have simply remanded the case back
to the trial court for a new trial. The Court of Criminal Appeals followed this
procedure in Steadman v. State when it determined that a violation of a defendant’s
Sixth Amendment right to a public trial was a structural error that did not require a
showing of harm. Steadman v. State, 360 S.W.3d 499, 510–11 (Tex. Crim. App.
2012). The court simply remanded the case to the trial court for a new trial. Id.
      Furthermore, the error at issue in the present case is undoubtedly a trial error
that is subject to harmless error review. A “structural” error is a “defect affecting
the framework within which the trial proceeds, rather than simply an error in the trial
process itself.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991); Mendez v. State,
138 S.W.3d 334, 340 (Tex. Crim. App. 2004). A “trial error” is one “which occurred
during the presentation of the case to the jury, and which may therefore be
quantitatively assessed in the context of other evidence presented in order to
determine whether” the error “was harmless.” Fulminante, 499 U.S. at 307–08;
Johnson v. State, 169 S.W.3d 223, 237 (Tex. Crim. App. 2005). A structural error
is not subject to a harm analysis because it defies analysis by harmless error
standards. Mendez, 138 S.W.3d at 338. Most constitutional errors are not structural.
Id. at 340 (citing Fulminante, 499 U.S. at 306). The Supreme Court has only found
structural errors in a “very limited class of cases.” Id. (quoting Johnson v. United
States, 520 U.S. 461, 468–69 (1997)). A complete denial of counsel is a structural
defect that affects the framework of the trial. Williams v. State, 252 S.W.3d 353,
357 (Tex. Crim. App. 2008) (citing Johnson, 520 U.S. at 468–69); Calamaco v.
State, 462 S.W.3d 587, 593 (Tex. App.—Eastland 2015, pet. filed). This case does
not involve a complete denial of counsel because Appellant was represented by
counsel at trial. This case involves the admission of recordings made in violation of
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Appellant’s Sixth Amendment right to counsel. This was a trial error because it
occurred during the presentation of the case to the jury, and it may be quantitatively
assessed in the context of the other evidence presented at trial in order to determine
whether the error was harmless. Fulminante, 499 U.S. at 307–08.
                                      Analysis
      We note at the outset that the two previous opinions issued in this case contain
very detailed accounts of the evidence presented at trial. Rubalcado, 424 S.W.3d
560 (Court of Criminal Appeals’s opinion); Rubalcado, 2013 WL 364233 (court of
appeals’s opinion). We will only recite those facts necessary for our determination
of the issue now before us.
      The underlying prosecution arose from allegations of inappropriate conduct
between Appellant and his girlfriend’s daughter, J.S. Appellant and J.S. resided in
the same household in Midland County beginning in 2002.             They moved to
neighboring Ector County in 2004. The alleged inappropriate conduct occurred in
both counties. The underlying prosecution arose from acts alleged to have occurred
in Ector County. After Appellant was arrested in Ector County and released on bail,
Midland police officers asked J.S. to make pretextual phone calls to Appellant in an
effort to induce Appellant to confess to committing crimes against J.S. J.S. made
three pretextual telephone calls to Appellant. Each call was recorded on recording
equipment provided to J.S. by the Midland Police Department. J.S. called Appellant
on three different days in September 2009: the 10th, 23rd, and 29th. As noted by
the Court of Criminal Appeals, “At least one Midland police officer was with J.S.
during each call, but the police did not tell J.S. what to say.” Rubalcado, 424 S.W.3d
at 564.
      The Court of Criminal Appeals determined that Appellant’s Sixth
Amendment right to counsel had attached with respect to the Ector County charges
before the phone conversations took place. Id. at 570. Conversely, the court also
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determined that Appellant’s Sixth Amendment right to counsel had not attached to
any offenses committed solely in Midland County because no prosecution was
pending in Midland County at the time of the recorded phone conversations.1 Id. at
570–71. The court determined that the recorded phone conversations constituted
“dual-use evidence” because there was no attempt by J.S. to distinguish between
offenses that occurred in Midland County and those that occurred in Ector County.
Id. at 573. The court further determined that the knowledge of Ector County law
enforcement that Appellant’s Sixth Amendment right to counsel had attached should
be imputed to Midland County law enforcement. Id. at 573–74. The court also
concluded that J.S. was a government agent with respect to the recorded telephone
conversations because the Midland police encouraged her to call Appellant for the
purpose of eliciting a confession, because they supplied the recording equipment,
and because an officer was present during the calls. Id. at 574–76. The court further
determined that J.S. deliberately elicited incriminating statements from Appellant
and that Appellant did not waive his right to counsel by choosing to speak to J.S. Id.
at 576–78. Accordingly, the court concluded that the admission of the recorded
phone conversations violated Appellant’s Sixth Amendment right to counsel. Id.
       The admission of evidence obtained in violation of a defendant’s Sixth
Amendment right to counsel constitutes constitutional error. Thompson v. State, 93
S.W.3d 16, 27 (Tex. Crim. App. 2001).                   Therefore, under the provisions of
Rule 44.2(a) of the Texas Rules of Appellate Procedure, we will reverse for
constitutional error unless we determine “beyond a reasonable doubt that the error
did not contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a); see
Calamaco, 462 S.W.3d at 594. Error does not contribute to the conviction if the
jury’s verdict would have been the same even if the erroneous evidence had not been

       1
        We express no opinion on the admissibility of the recorded phone conversations in any criminal
proceeding other than the underlying prosecution from Ector County.

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admitted. Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007). An appellate
court’s primary concern is the effect the error had, or reasonably may have had, on
the jury’s decision. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000).
In determining whether the error contributed to a defendant’s conviction, we
consider the nature of the error, the State’s emphasis on the error, the error’s
probable collateral implications, and the weight a juror would probably place on the
alleged error. Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011).
      The first phone call lasted approximately seven and one-half minutes. J.S.
and Appellant talked about J.S.’s school and her new car.          Appellant spoke
extensively about his relationship with God and how “God was the center of [his]
life.” Appellant said that he had strayed away but that God “brought me back and I
am so glad of that.” Appellant admitted that he was “changing slowly by slowly.
God is still working on me.” J.S. told Appellant that she “want[ed] to go home
already.” Appellant replied, “I know, baby. My phone battery is low. You can call
me back later on or tomorrow, okay?”
      The second phone call was twelve and one-half minutes long. Appellant and
J.S. discussed recent family activities and her upcoming graduation. J.S. asked, “Do
you think I will be able to come home?” Appellant replied, “Yes. We have got to
take a few steps, baby. Just a few steps to take.” J.S. asked what she would have to
do. Appellant told her, “First, I mean, at least talk to my lawyer,” and “I mean, the
thing that you have to talk to the lawyer about, you understand, you know, I don’t
want nothing to happen, you know. That thing that happened, nothing happened, I
was mad.” Appellant continued to talk about God, J.S. coming home, being a good
father to J.S., and being a family again. Near the end of the phone call, Appellant
mentioned, “Dropping the charges and that way I can get you home.” Right before
Appellant and J.S. ended the call, Appellant again stated, “And we will start working
on this dropping these charges and stuff and we will get you home.”
                                          6
      The final phone call lasted over twenty-five minutes. After a few minutes,
J.S. said that Appellant wanted her to talk to his lawyer. Appellant responded,
“Yeah. Mainly I think it is the DA.” Appellant and J.S. talked for several minutes
about God, changing, and having a better attitude, and Appellant said, “I am saying
whatever God is telling you to do, you do it. Don’t feel pressured or anything.” J.S.
asked Appellant if she could ask him a question. Appellant answered affirmatively.
J.S. asked, “Can I ask you why you were doing those things to me?” Appellant
responded, “Do what?” J.S. replied, “The way you were touching me and stuff like
that.” Appellant answered that J.S. and her mom and him would have to get together
and that “[w]e will come back to that.” J.S. then asked, “Why did you -- why did
you have sex with me?” Appellant changed the subject and asked whether J.S.
wanted to come back home.
      J.S. and Appellant talked about dropping the charges again. J.S. asked
Appellant what she should tell the district attorney. Appellant responded that the
district attorney would ask her: “Why do you want to drop charges?”            Then
Appellant said:
      I mean, I am not telling you what to do, or coaching you in any way,
      shape or form, but, you know, I heard some cases that people have told
      me, do you want to press charges? No. Did it happen? No. Did they
      do this? No. Did they do this? No. Are you going to testify against
      him? No. And that’s how I heard that some cases have gone before.
      No, no, no, no, no.

      Later in the phone call, J.S. wanted to know if anything bad would happen to
her if she moved back. Appellant said, “No, I mean, nothing is going to happen. We
all change. Nothing is going to happen with anyone.” Appellant continued, “I am
not going to do nothing but pray to God.” Right before the phone call ended,
Appellant asked J.S. to please talk to the lawyers. J.S. again asked Appellant why



                                         7
he touched her. Appellant avoided the question and said that God knows everything.
Appellant never denied the assaults.2
       After reviewing the entire record, we cannot determine beyond a reasonable
doubt that the error did not contribute to Appellant’s convictions. As detailed above,
many of Appellant’s statements were inculpatory in nature, and the jury likely placed
a great deal of weight on them. In this regard, Appellant did not testify on his behalf
at trial during the guilt/innocence phase. The State placed a great deal of emphasis
on the recorded phone conversations in both opening and closing statements. In the
State’s opening statement, the prosecutor stressed the pretextual phone calls. The
prosecutor said, “And in those phone calls, you are going to hear [Appellant] say he
is sorry. And you are also going to hear [J.S.] completely confront him and ask him,
‘Why did you touch me?’ And a normal person would react by saying, ‘I didn’t. I
didn’t touch you. What are you talking about?’” The prosecutor continued, “What
you are going to hear on those tapes is that the defendant changed the subject
completely. And then [J.S.] is going to ask him, ‘Why did you have sex with me?’
And you are going to hear silence. And you are going to hear that subject change
again completely. But you are not going to hear, ever, is a denial.” In closing
arguments, the State emphasized the phone calls and played them again for the jury.
The State spent more than half of closing argument discussing the phone calls. The
State repeatedly mentioned that Appellant told J.S. to talk to his lawyer and the
district attorney about dropping the charges. Additionally, there is a reasonable
likelihood that the erroneous admission of the recorded phone conversations affected
the jury’s orderly evaluation of the evidence because there were several objections,
exchanges, bench conferences, and conferences outside the presence of the jury over
whether to admit the phone calls.

       2
        The opinion from the Court of Criminal Appeals also contains extensive details about the three
recorded phone conversations. Rubalcado, 424 S.W.3d at 564–66.

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      The Court of Criminal Appeals determined that the recorded phone
conversations constituted dual-use evidence with reference to offenses occurring in
Ector County versus offenses occurring in Midland County. Rubalcado, 424 S.W.3d
at 573. The court based this determination upon the fact that J.S. made no attempt
to distinguish between the offenses that occurred in one county versus the other
county. Id. The dual-use nature of the recorded phone conversations extends to the
twenty convictions arising from the underlying Ector County prosecution because
J.S.’s questions were general in nature and made no effort to distinguish one
particular act from another.
      We have no assurance that the jury’s verdict would have been the same even
if the erroneous evidence had not been admitted. Accordingly, we cannot say
beyond a reasonable doubt that the admission of the pretextual calls did not
contribute to Appellant’s convictions. Appellant’s third issue is sustained. We need
not consider Appellant’s other issues in light of our ruling on his third issue.
                                   This Court’s Ruling
      We reverse the judgments of the trial court and remand this cause to the trial
court for a new trial.




                                                      JOHN M. BAILEY
                                                      JUSTICE


August 21, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.



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