## Facts

- Robert Rubalcado lived with J.S.’s mother; the family moved from Midland County to Odessa (Ector County), Texas.
- J.S. accused Rubalcado of sexual abuse; on March 12, 2009, a complaint in Ector County charged him with aggravated sexual assault of a child.
- Rubalcado was arrested the next day on a warrant supported by a probable-cause affidavit and later released on bail.
- While the Ector County case was pending, Midland police opened a separate investigation concerning alleged abuse occurring in Midland County.
- Midland officers asked J.S. to place recorded “pretext” phone calls to Rubalcado and provided recording equipment.
- During the calls, J.S. questioned Rubalcado about “touching” and having “sex” with her, and he made incriminating statements.
- The State introduced the recorded calls at the Ector County trial as primary evidence of guilt.
- Rubalcado objected that the calls were obtained in violation of his Sixth Amendment right to counsel in the pending Ector County prosecution; the trial court admitted the recordings, and the jury convicted him.

## Issues

1. Whether, after adversary proceedings began on the Ector County charge, the Sixth Amendment barred the State from using recorded pretext calls arranged by law enforcement through the complainant to deliberately elicit incriminating statements from Rubalcado outside counsel’s presence.
2. Whether the offense-specific nature of the Sixth Amendment permits officers in another county investigating related conduct to elicit statements later used as primary evidence in the pending prosecution.

## Decision

- The Court of Criminal Appeals of Texas reversed the court of appeals’ judgment affirming the conviction.
- The court held that Rubalcado’s Sixth Amendment right to counsel had attached in the Ector County prosecution when the complaint was filed and he was arrested.
- The court held that J.S. acted as a State agent when she made the pretext calls at law enforcement’s request using police-provided equipment.
- The court held that the calls constituted deliberate elicitation of incriminating statements after attachment and without counsel.
- Because the statements were used as primary evidence of guilt in the Ector County case, their admission violated the Sixth Amendment and required reversal.

## Legal Principles

- The Sixth Amendment right to counsel attaches at or after initiation of adversary judicial proceedings (e.g., formal charge and arrest on a warrant).
- After attachment, the State may not deliberately elicit incriminating statements from the accused about the charged offense in the absence of counsel, including through a cooperating witness acting as a State agent.
- The Sixth Amendment is offense-specific, but the State may not circumvent a pending right to counsel by using different state actors or jurisdictions to procure statements for use in the charged case.
- For Sixth Amendment purposes, the State is treated as a single entity; constitutional obligations are not avoided by compartmentalizing knowledge or conduct among governmental actors.
- Statements obtained in violation of the post-attachment right to counsel are inadmissible in the prosecution for the offense to which the right has attached.

## Conclusion

The court held that recorded pretext calls arranged by law enforcement after charges were filed deliberately elicited incriminating statements from a represented defendant, and using those statements as primary evidence in the pending prosecution violated the Sixth Amendment right to counsel, requiring reversal.


Rubalcado v. State, 424 S.W.3d 560 (Tex. Crim. App. 2014)