                                       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


Do not publish.




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