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Click here for the full text of this decision FACTS:Authorities indicted John Allen Rubio on four counts of capital murder related to the killing and decapitation of his three children: Julissa Quesada (age 3), John E. Rubio (age 14 months) and Mary Jane Rubio (age 2 months). Rubio pleaded not guilty by reason of insanity to all four counts. The jury found Rubio guilty and rendered a verdict on the issue of punishment that required the trial court to sentence Rubio to death. HOLDING:Reversed and remanded. In his first point of error, Rubio argued that the trial court erred during the guilt-innocence phase of the trial by admitting the statements of Maria Angela Camacho, Rubio’s common-law wife and alleged accomplice in the murders. Camacho invoked her Fifth Amendment right to not testify in open court. As a result, the state offered three statements she made to the police regarding the murders, two written statements and one oral statement recorded on videotape. Over Rubio’s objection, the trial court admitted all three statements. The written statements were read to the jury by the Brownsville Police Department detectives who originally took the statements. The videotaped statement was played for the jury, which also received a written transcript. Rubio was never able to cross-examine Camacho, either at the time she made the statements or during the trial. At the time of Rubio’s trial, the admissibility of out-of-court statements against a defendant where the declarant was unavailable for cross-examination was governed by the 1980 U.S. Supreme Court opinion in Ohio v. Roberts. Under Roberts, such a statement was admissible so long as it bore adequate “indicia of reliability” or otherwise fell within a “firmly rooted hearsay exception.” Since the time of Rubio’s trial, however, the Supreme Court overruled Roberts in 2004 by announcing its opinion in Crawford v. Washington. Under Crawford, nontestimonial hearsay evidence would still be admissible under a scheme like that in Roberts, but the Supreme Court made clear that, “Where testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and prior opportunity for cross-examination.” The state, the court noted, did not dispute that Camacho’s statements were given during a police interrogation and therefore testimonial in nature. The state also acknowledged that Camacho had invoked her Fifth Amendment right at trial and was therefore unavailable to testify. Accordingly, because Rubio was not able to cross-examine Camacho, the court held that the trial court erred in admitting Camacho’s statements. The court then did a harm analysis, stating that it would not reverse Rubio’s conviction unless it determined beyond a reasonable doubt that the error in admitting Camacho’s testimony did not contribute to Rubio’s conviction. In the instant case, the court noted Rubio did not contest that he committed the acts which killed the children. Therefore, the only real issue in contention at the guilt-innocence phase was Rubio’s state of mind. The primary evidence relevant to that issue came in the form of statements that Rubio and Camacho made to the police. Of all the witnesses presented by the state, the court found that Camacho was in the best position by far to refute Rubio’s contention that he was insane. Her statements did precisely that, the court stated, noting in particular the second statement, in which Camacho stated that the reason they killed the children was not because of witchcraft but because of money. In addition, Camacho told the jury in her videotaped statement that she and Rubio knew they had “done wrong.” No physical evidence presented at trial could corroborate these statements. On the other hand, the court noted that there were many factors that could have affected the statements’ accuracy, including Camacho’s own pending prosecution for her involvement in the murders, her state of mind due to the horrific acts in which she had just participated, and her mental competency, given that she was a high school dropout with at least some time spent in special education courses. The court did not weigh the accuracy of Camacho’s statements but found that her statements likely contributed to the jury’s verdict of guilt, such that the error in admitting her statements at trial clearly prejudiced Rubio’s case. OPINION:Womack, J., delivered the opinion of the court, in which Price, Johnson, Holcomb and Cochran, JJ., joined. DISSENT:Keller, P.J. filed a dissenting opinion, in which Keasler and Hervey, JJ., joined. “I agree with the Court that error occurred in this case, but I do not agree with the Court’s harm analysis. If the jury could properly have found that Rubio was legally insane at the time he killed his children, then this would be a more difficult case. But as it turns out, this is not a difficult case. Even under Rubio’s defensive theory, he was not legally insane.” Meyers, J. dissented without an opinion.

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