                                                                                PD-0984-15
                                                               COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                             Transmitted 12/22/2015 8:27:10 AM
December 22, 2015
                                                               Accepted 12/22/2015 9:23:38 AM
                                                                                ABEL ACOSTA
                               No. PD-0984-15                                           CLERK

                    IN THE COURT OF CRIMINAL APPEALS

                         OF THE STATE OF TEXAS


                         WENDEE LONG, Appellant

                                       v.

                       THE STATE OF TEXAS, Appellee


                          Appeal from Denton County

                                 * * * * *

                      STATE’S BRIEF ON THE MERITS

                                 * * * * *

                              LISA C. McMINN
                          State Prosecuting Attorney
                            Bar I.D. No.13803300

                            JOHN R. MESSINGER
                      Assistant State Prosecuting Attorney
                             Bar I.D. No. 24053705

                                P.O. Box 13046
                             Austin, Texas 78711
                          information@spa.texas.gov
                          512/463-1660 (Telephone)
                              512/463-5724 (Fax)

                      ORAL ARGUMENT REQUESTED
   NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT

*The parties to the trial court’s judgment are the State of Texas and Appellant,
Wendee Long.

*The case was tried before the Honorable Margaret Barnes, 367th District Court,
Denton County.

*Counsel for Appellant at trial was Barry Sorrels and Stephanie A. Luce, 2311 Cedar
Springs, Suite 250, Dallas, Texas 75201.

*Counsel for Appellant on appeal was Bruce Anton and Brett E. Ordiway, 2311
Cedar Springs, Suite 250, Dallas, Texas 75201.

*Counsel for Appellant before this Court is Bruce Anton, 2311 Cedar Springs, Suite
250, Dallas, Texas 75201.

*Counsel for the State at trial was Matthew J. Shovlin and Lindsey E. Sheguit,
Denton County Assistant District Attorneys, 1450 E. McKinney Street, Suite 3100
Denton, Texas 76209.

*Counsel for the State on appeal was Charles E. Orbison and Andrea R. Simmons,
Denton County Assistant District Attorneys, 1450 E. McKinney Street, Suite 3100
Denton, Texas 76209.

*Counsel for the State before this Court is John R. Messinger, Assistant State
Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.




                                         i
                                        TABLE OF CONTENTS

INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 2

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

         I.       What the court of appeals did... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

         II.      Rules for statutory construction... . . . . . . . . . . . . . . . . . . . . . . . . . 10

         III.     The statutory definition of “oral communication” is plain.. . . . . 11

         IV.      Extratextual sources confirm the plain meaning of the statute.. 16

         V.       Coach Townsend exhibited a justified expectation that his
                  words would not be stolen by excluded parties.. . . . . . . . . . . . . . 34

         VI.      Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

APPENDIX                   Texas House Committee on Criminal Jurisprudence Bill
                           Analysis for H.B. 360, 67th Leg. R.S.


                                                          ii
United States Senate Committee on the Judiciary Report No.
1097, 90th Cong., 2d Sess. (Excerpts)




                    iii
                                       INDEX OF AUTHORITIES

Cases
Alameda v. State, 235 S.W.3d 218 (Tex. Crim. App. 2007).. . . . . . . . . . . . . . . 8, 11

Angel v. Williams, 12 F.3d 786 (8th Cir. Mo. 1993).. . . . . . . . . . . . . . . . . . . . 26-27

Bartnicki v. Vopper, 532 U.S. 514 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-25

Berger v. New York, 388 U.S. 41 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Boddie v. American Broadcasting Cos., 731 F.2d 333 (6th Cir. Ohio 1984). 28-29

Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991). . . . . . . . . . . . . . 6, 10-11

Minnesota v. Carter, 525 U.S. 83 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Castillo v. State, 810 S.W.2d 180 (Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . 11

Chambless v. State, 411 S.W.3d 498 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . 10

United States v. Clark, 22 F.3d 799 (8th Cir. Iowa 1994). . . . . . . . . . . . . . . . . . . 25

United States v. Dunbar, 553 F.3d 48 (1st Cir. Mass. 2009). . . . . . . . . . . . . . 26-27

Evens v. Superior Court, 77 Cal. App. 4th 320 (Cal. App. 2d Dist. 1999,
      review denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33-34

Gonzales v. State, 689 S.W.2d 900 (Tex. Crim. App. 1985) .. . . . . . . . . . . . . . . . . 9

Ex parte Graves, 853 S.W.2d 701 (Tex. App.–Houston [1st Dist.] 1993,
      pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Harrelson, 754 F.2d 1153 (5th Cir. Tex. 1985). . . . . . . . . . . 26-27

Huff v. Spaw, 794 F.3d 543 (6th Cir. Ky. 2015). . . . . . . . . . . . . . . . . . . . . . . . 29-31

In re John Doe Trader Number One, 894 F.2d 240 (7th Cir. Ill. 1990).. . . . . 25, 28

                                                            iv
Katz v. United States, 389 U.S. 347 (1967). . . . . . . . . . . . . . . . . . . . . . . . 17, 20-21

United States v. Larios, 593 F.3d 82 (1st Cir. Mass. 2010). . . . . . . . . . . . . . . . . . 27

Lee v. Florida, 392 U.S. 378 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Lee v. State, 191 So. 2d 84 (Fla. 1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Liverman v. State, 470 S.W.3d 831 (Tex. Crim. App. 2015). . . . . . . . . . . . . . . . . 10

Long v. State, 469 S.W.3d 304 (Tex. App. El Paso 2015). . . . . . . . . . . . . . . . . . 7-9

United States v. Longoria, 177 F.3d 1179 (10th Cir. Kan. 1999). . . . . . . . . . . . . . 9

McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . 9

United States v. McIntyre, 582 F.2d 1221 (9th Cir. 1978). . . . . . . . . . . . . . . . . . . . 8

United States v. McKinnon, 985 F.2d 525 (11th Cir. Fla. 1993). . . . . . . . . . 725, 27

Meyer v. State, 78 S.W.3d 505 (Tex. App.–Austin 2002, pet. ref’d). . . . . . . . . . . . 8

Murray v. State, 457 S.W.3d 446 (Tex. Crim. App. 2015).. . . . . . . . . . . . . . . . . . 10

United States v. Peoples, 250 F.3d 630 (8th Cir. Mo. 2001). . . . . . . . . . . . . . 25, 27

Plock v. Board of Education, 545 F. Supp. 2d 755 (N.D. Ill. 2007). . . . . . . . 33-34

Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . 11

Roberts v. Houston Independent School District, 788 S.W.2d 107
     (Tex. App.–Houston [1st Dist.] 1990, writ. denied). . . . . . . . . . . . . . . . 33-34

State v. Savage, 933 S.W.2d 497 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . 9

Smith v. Maryland, 442 U.S. 735 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 18

United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533 (1944). . . . . . 19

                                                     v
United States v. Turner, 209 F.3d 1198 (10th Cir. Wyo. 2000). . . . . . . . . . . . 26-27

Vinez v. State, 08-10-00195-CR, 2012 Tex. App. LEXIS 817
      (Tex. App.–El Paso Feb. 1, 2012, no pet.) .. . . . . . . . . . . . . . . . . . . . . . . . . 12

Walker v. Darby, 911 F.2d 1573 (11th Cir. Ala. 1990). . . . . . . . . . . . . . . . . . 31-32

Statutes and Rules
18 U.S.C. § 2510(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19, 30

CAL. PEN CODE § 632(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

TEX. CODE CRIM. PROC. art. 18.20 §1(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12

TEX. CODE CRIM. PROC. art. 18.20 §1(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

TEX. PENAL CODE § 16.02(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12

TEX. PENAL CODE § 16.02(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12, 15

TEX. PENAL CODE § 16.02(c)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Other
Texas House Committee on Criminal Jurisprudence Bill Analysis for
      H.B. 360, 67th Leg. R.S.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17

United States Senate Committee on the Judiciary Report No. 1097,
      90th Cong., 2d Sess.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-20




                                                       vi
                                      No. PD-0984-15

                       IN THE COURT OF CRIMINAL APPEALS

                               OF THE STATE OF TEXAS

WENDEE LONG,                                                               Appellant

v.

THE STATE OF TEXAS,                                                         Appellee

                                         * * * * *

                          STATE’S BRIEF ON THE MERITS

                                         * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

         Comes now the State of Texas, by and through its State Prosecuting Attorney,

and respectfully presents to this Court its brief on the merits.

                             STATEMENT OF THE CASE

         This case turns on the meaning of “oral communication.” Appellant was

convicted of procuring her daughter to intercept an oral communication and then

intentionally disclosing its contents knowing it was obtained through that

interception.1 An “oral communication” is an “oral communication uttered by a

person exhibiting an expectation that the communication is not subject to interception


     1
         See TEX. PENAL CODE § 16.02(b)(1), (2).

                                               1
under circumstances justifying that expectation.”2 The court of appeals decided that

words spoken by a coach to his players are not “oral communication” because he

“d[oes] not have [a] justifiable expectation that only they would acquire the contents

of his communications.”

                STATEMENT REGARDING ORAL ARGUMENT

        Oral argument was requested and granted.

                                  ISSUES PRESENTED

   1.     Does Penal Code section 16.02 prohibit intercepting and disclosing
          the contents of an oral communication even when the speaker has no
          expectation that his words will not be repeated by those present?

   2.     Does a basketball coach have a justifiable expectation that his pep
          talk in a girls’ locker room will not be secretly recorded by a former
          player?

                                STATEMENT OF FACTS

        Appellant was a member of the Argyle ISD school board who had two

daughters attending Argyle High School.3 After Lelon “Skip” Townsend was hired

as the varsity girls’ basketball coach, appellant claims she began hearing stories about




   2
      TEX. CODE CRIM. PROC. art. 18.20 §1(2). The term is defined, in part, by the term itself,
presumably according to its lay meaning.
   3
        State’s Ex. 10, p.1 (Appellant’s “Statement of Video Information” given by her attorney to
police); 4 RR 114-16.

                                                2
how mean Townsend was to his players.4 One of her daughters, Rose,5 quit the team

after the first game.6 Appellant encouraged the parents of players to call the school

board about Townsend’s alleged behavior.7

       On February 7, 2012, Argyle’s regular season ended with an away game at

Sanger High School.8 When a team visits another school for a game, they are

assigned a locker room.9 The visitor’s locker room at Sanger High School is down

a set of stairs past the gym.10 This area is “pretty much [for] athletes only.”11 After

descending the stairs “and back around,” there is a hallway with three locker rooms.12

The visitor’s locker room is the farthest one “all the way down on the right.”13 One

must pass through two doors to enter the locker room; the first opens to “a little




  4
       State’s Ex. 10, p.1-3.
  5
       “Rose” is a pseudonym.
  6
       State’s Ex. 10, p.1.
  7
       State’s Ex. 10, p.4.
  8
       4 RR 145; State’s Ex. 10, p.4.
  9
       4 RR 142-43.
  10
       4 RR 57-58.
  11
       4 RR 58.
  12
       4 RR 58.
  13
       4 RR 58; State’s Ex. 1 (photo).

                                          3
nothing room” with a door that opens to the locker room itself.14

       “It’s a private area.”15 As Townsend explained, that space is for the visiting

team and coaches

  to have a refuge to get away from the people that are at the ball game. It’s a
  place where we can go sit and talk. It’s a place for our kids to sit and meditate
  before a game to -- it’s a quiet place and a --a -- a place to dress, a place that we
  can call our own for about two and a half hours.16

The players put all their personal belongings there.17 “It’s supposed to be for our

team and our coaches only.”18 “[I]t’s a place where coaches and teammates can meet

and discuss aspects of the game, get a scouting report together, do team activities,

such as pray.”19

       That night, Rose told a Sanger student that her mom is the principal, she is the

team manager, and she needed to get into Argyle’s locker room because their coach

was being mean to the players and she wanted to catch it on video.20 They entered the

locker room just before half-time and Rose taped her phone on the inside of a


  14
       4 RR 58, 60.
  15
       4 RR 60 (agreeing with counsel’s statement).
  16
       4 RR 143.
  17
       4 RR 143.
  18
       4 RR 144.
  19
       4 RR 159.
  20
       4 RR 56-57.

                                              4
locker.21

       Rose went alone to retrieve the phone after half-time.22 When her attempts to

crop and e-mail the video resulted in most of it being lost, she re-entered the locker

room so that she could record Townsend’s post-game speech.23 She waited and

counted the players as they came out of the locker room after the game before she

retrieved her phone.24

       Sanger police interviewed the girls on the team and none of them were aware

they were being recorded.25 Townsend did not give anyone permission to record his

remarks to his team.26 He “was surprised[,]” and “had no idea that anyone would be

videoing.”27 He felt “violated,” like his privacy was invaded.28

       Appellant showed the video to a co-worker between February and March of




  21
       4 RR 61-62; State’s Ex. 10, p.4.
  22
       4 RR 62.
  23
       4 RR 73; State’s Ex. 10, p.4.
  24
       State’s Ex. 10, p.4.
  25
       4 RR 98.
  26
       4 RR 144.
  27
       4 RR 146.
  28
       4 RR 152-53.

                                          5
2012.29 She thought to herself, “Maybe if the board sees him in action?”30 The video

was distributed to members of the school board prior to its March meeting, when

Townsend’s contract was to be discussed.31

                          SUMMARY OF THE ARGUMENT

       The sufficiency of the evidence in this case turns on the meaning of the

definition of “oral communication.” The court of appeals ignored basic rules of

statutory construction when it bypassed the plain language and, instead of analysis

based in Boykin v. State,32 relied exclusively on a single Ninth Circuit decision for its

view of the legislative history of an analogous federal statute.

       Review of the plain language of the statutory definition shows that it was

intended to prevent the type of privacy violation presented in this case. Even if one

cannot ensure that parties to a private conversation never disclose what they have

heard, the legislature has sought to prevent people who are not parties from

surreptitiously recording and disseminating private conversations. If the plain

language is not enough to discount the interpretation espoused by the court of appeals

and appellant, the absurdity of that interpretation in practice, the state and federal

  29
       4 RR 230-31. State’s Ex. 8 and 9 (videos).
  30
       State’s Ex. 10, p.5.
  31
       4 RR 153-54.
  32
       818 S.W.2d 782 (Tex. Crim. App. 1991).

                                              6
legislative histories, commentary from the Supreme Court, and persuasive federal

cases show that it is untenable.

                                         ARGUMENT

          Can anything that can be repeated by a listener be recorded by a stranger?

When should someone expect that a hidden camera has been placed in a girls’ locker

room by someone who is not permitted inside? The answers to both questions depend

on how this Court interprets the statutory definition of “oral communication.”

I.        What the court of appeals did.

          In four separate points, appellant claimed that the evidence was legally

insufficient and that the trial court erred in overruling her motions for directed

verdict, judgment of acquittal, and new trial.33 Each of these points had the same

basis: “because the complainant had no justifiable expectation that only his students

would acquire the contents of his communication.”34 The court of appeals addressed

only appellant’s motions for directed verdict and judgment of acquittal, deciding it

“need not address her remaining issues.”35

          The court based its decision on the meaning of “oral communication.” But it



     33
          App. CoA Br. at 3 (Table of Contents).
     34
          Id.
     35
          Long v. State, 469 S.W.3d 304, 313 (Tex. App.–El Paso 2015).

                                                   7
did not attempt to discern the meaning of the plain language of the statute, identify

ambiguity or absurdity, or perform its own review of extratextual sources. Instead,

claiming an ability to “rely on decisions . . . construing the [federal] Wiretap Act[,]”36

it held, “The legislative history of the Wiretap Act reveals that Congress’s intent was

to protect persons engaged in oral communications under circumstances justifying an

expectation of privacy.”37 This conclusion was attributed entirely to what the Ninth

Circuit said about the federal legislative history in a single case.38 Citing Smith v.

Maryland, the case in which the Supreme Court adopted Justice Harlan’s concurrence

in Katz v. United States as the standard for Fourth Amendment cases, the court of

appeals identified the two-pronged test it would use: “(1) did the person exhibit a

subjective expectation of privacy; and (2), if so, is that subjective expectation one

society is willing to recognize as reasonable.”39

        The court of appeals held that, because “instructional communications and

activities, regardless of where they occur, . . . are always subject to public


  36
       Long, 469 S.W.3d at 308 (citing Alameda v. State, 235 S.W.3d 218, 222-23 (Tex. Crim. App.
2007), and Meyer v. State, 78 S.W.3d 505 (Tex. App.–Austin 2002, pet. ref’d)).
   37
        Id. at 308.
   38
       Id. (citing United States v. McIntyre, 582 F.2d 1221, 1223 (9th Cir. 1978)). As it happens,
Meyer, supra, also relies exclusively on a case from the First Court of Appeals that exclusively relies
on McIntyre for the same proposition. Meyer, 78 S.W.3d at 509 (citing Ex parte Graves, 853
S.W.2d 701, 705 (Tex. App.–Houston [1st Dist.] 1993, pet. ref’d).
   39
        Long, 469 S.W.3d at 308 (citing 442 U.S. 735, 740 (1979)).

                                                  8
dissemination and generally exposed to the public view[,]” Townsend had no such

justifiable expectation.40 “Consequently, the recordings in dispute are not ‘oral

communications’ covered by Section 16.02 of the Texas Penal Code.”41

A claim of legal insufficiency by any other name . . .

        As appellant acknowledged in the court of appeals, all four of her claims are

challenges to the legal sufficiency of the evidence.42 The sufficiency of the only

challenged element turns on whether the definition provided for “oral

communication” should be read according to its plain meaning or instead requires a

court perform a standard Fourth Amendment “expectations” analysis. When a

sufficiency-of-the-evidence issue turns in large part on the meaning of the statute, that




  40
       Id. at 311; see also id. (“society is not willing to recognize as reasonable any expectation of
privacy in half-time and post-game instructional communications uttered by a public high school
basketball coach to his team in the visiting locker room of a public high school.”).
   41
        Id. at 313.
   42
        App. CoA Br. at 2 (“Did the trial court therefore err in overruling Long’s motions for a
directed verdict, judgment of acquittal, and new trial, and was the evidence thus legally insufficient,
where the intercepted speech was a high school basketball coach’s locker-room tirade?”). See
McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (“a complaint about overruling a
motion for directed/instructed verdict is in actuality an attack upon the sufficiency of evidence to
sustain the conviction”); State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996) (“a trial
court’s JNOV ruling after a jury determination of criminal guilt accomplishes exactly the same effect
as granting the defendant a new trial for insufficient evidence -- a functional acquittal.”); Gonzales
v. State, 689 S.W.2d 900, 901 (Tex. Crim. App. 1985) (“Appellant challenges the sufficiency of the
evidence, arguing the trial court erred in overruling his motion for new trial on the ground that the
verdict rendered is contrary to the law and evidence.”).

                                                  9
question is one of law reviewed de novo.43

II.        Rules for statutory construction.

           The first step is reading the statute.         When determining the collective

legislative intent or purpose of a statute, this Court necessarily focuses its attention

on its literal text and attempts to discern the fair, objective meaning of that text at the

time of its enactment.44 “The best evidence of the Legislature’s intent is the plain

language of the law it passed[,]”45 and “the Legislature is constitutionally entitled to

expect that the Judiciary will faithfully follow the specific text that was adopted.”46

           Only if the plain language of a statute would lead to absurd results, or if the

language is not plain but ambiguous, may a court consider such extratextual factors

as legislative history.47 Another such factor is the treatment of similar statutes in

different jurisdictions. This Court has done so twice in cases dealing with this




      43
       Liverman v. State, 470 S.W.3d 831, 2015 Tex. Crim. App. LEXIS 992 at *7 (Tex. Crim.
App. 2015). In this case, how the underlying facts are viewed could play a role. If so, the evidence
should be viewed in the light most favorable to the verdict as usual. Murray v. State, 457 S.W.3d
446, 448 (Tex. Crim. App. 2015).
      44
           Boykin, 818 S.W.2d at 785.
      45
           Chambless v. State, 411 S.W.3d 498, 503-04 (Tex. Crim. App. 2013).
      46
           Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
      47
           Id. at 785-86.

                                                 10
statutory scheme.48 Both cases make clear that this consideration cannot come at the

expense of independent analysis.49 At the very least, a reviewing court cannot simply

rely on a single case’s conclusory statement about a similar statute’s legislative

history, as did the court of appeals in this case.

III.     The statutory definition of “oral communication” is plain.

         An “oral communication” is an “oral communication uttered by a person

exhibiting an expectation that the communication is not subject to interception under




   48
         Alameda, 235 S.W.3d at 222-23; Castillo v. State, 810 S.W.2d 180, 183 (Tex. Crim. App.
1990).
  49
         In Castillo, a pre-Boykin case, this Court’s “initial task [wa]s to ascertain the meaning of the
terms ‘aural acquisition’ and ‘interception.’” 810 S.W.2d at 183. It framed its attempt to effectuate
the collective “intent” or “purpose” of the Legislature to include the legislative history of the statute,
the consequences of any particular construction (with a presumption that the Legislature intended
a reasonable result), and, “Finally, because [the term’s definition] was borrowed from the federal
wiretap statute, . . . the construction placed upon the federal statute by other courts.” Id. (citations
omitted). The Court noted dueling interpretations, and went on to hold that “the language of [the
statute] plainly contemplates” a certain meaning and that the contrary interpretation “is unreasonable
and probably does not reflect the intent of the Legislature” based on the relevant legislative history
and policy consequences. Id. at 184.
         In Alameda, this Court considered whether a mother could vicariously consent to the
recording of phone conversations between her 13-year-old child and a child molester without either
of their knowledge. 235 S.W.3d at 220. “Because no Texas cases have addressed a parent’s ability
to vicariously consent to the recording of a child’s telephone conversations, and the federal wiretap
statute is substantively the same as the Texas statute,” this Court looked to the “leading case”
regarding the vicarious-consent doctrine in the context of the federal wiretap statute. Id. at 222
(citing Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998)). But identifying the holding of the “leading
case” did not end the inquiry; this Court conducted a complete policy analysis that, while informed
by persuasive authority, addressed each of Alameda’s arguments in turn and arrived at its own
conclusion. Id. at 222-23.

                                                   11
circumstances justifying that expectation.”50 This language is plain and it makes

sense in context.51 Section 16.02(b)(1) prohibits intentionally procuring another

person to intercept, through the use of an electronic device, words uttered by someone

exhibiting a justified expectation that they are not subject to interception. Section

(b)(2) prohibits intentionally disclosing the contents of an utterance the actor knows

was unlawfully intercepted under (b)(1). It is an affirmative defense that “a person

. . . intercepts a[n] . . . oral . . . communication, if: (A) the person is a party to the

communication; or (B) one of the parties to the communication has given prior

consent to the interception, unless the communication is intercepted for the purpose

of committing an unlawful act[.]”52

        Read as a whole, this statutory scheme concerns a specific type of invasion of

privacy unrelated to whether someone present could repeat what she heard. Rather,

it prohibits people who are not party to a conversation from recording that



   50
        TEX. CODE CRIM. PROC. art. 18.20 §1(2).
   51
        In fact, this court of appeals has reviewed a claim of illegally obtained recordings under
section 16.02(b)(1) using only the plain language of the statute, without reference to the federal
Wiretap Act or any other extratextual sources. Vinez v. State, 08-10-00195-CR, 2012 Tex. App.
LEXIS 817, *5-6 (Tex. App.–El Paso Feb. 1, 2012, no pet.) (not designated ro publication) (“In our
view, these circumstances did not justify an expectation that Vinez’s oral communications were not
subject to police interception.”) (citations omitted). It did, however, compare the circumstances to
those in which this Court and another found no reasonable expectation of privacy in jail phone calls
or between co-defendants at a county jail. Id. at *6. This overlap will be discussed below.
   52
        TEX. PENAL CODE § 16.02(c)(4).

                                                12
conversation without the knowledge or consent of the parties, provided the parties

recorded exhibited a justified expectation that they would not be recorded. Put

another way, under objectively justifiable circumstances, the law prohibits acquiring

the contents of oral utterances without the consent, implied or express, of at least one

of the parties.

What the plain language does not say is as important as what it does.

      While the plain language of the statute does require the jury to determine

whether an expectation is justified—i.e., reasonable—it does not mention anything

about some broad “right to privacy.” Instead, the interest at stake is the much

narrower expectation of not being recorded.

      There is also no requirement that the State prove the victim’s subjective

expectation, as is necessary in a traditional Fourth Amendment analysis. The statute

requires only that the victim “exhibit[] an expectation that the communication is not

subject to interception.” “Exhibition” is a fact question determinable from a victim’s

actions; it is not enough that the jury believe the victim harbored such an expectation.

The interceptor should not be liable for violating an expectation that is not exhibited,

but she also should not be permitted to ignore an apparent exhibition of an

expectation of non-interception on the off chance it does not exist. This statute exists

for the speaker’s benefit, not the interceptor’s.


                                          13
       Finally, the definition of “oral communication” does not refer to the “contents”

being intercepted; it refers to the uttered communication itself. The incorporation of

the term “intercept” by reference does not change this. True, “intercept” means “the

aural or other acquisition of the contents of a wire, oral, or electronic communication

through the use of an electronic, mechanical, or other device.”53 In context, however,

“the contents” of an utterance aurally acquired necessarily includes the speaker’s

voice, and his voice must be acquired by a device.

Appellant’s interpretation is absurd

       There is nothing extraordinary about preventing technological eavesdropping,

or preventing violators from spreading what they have illegally acquired. But an

interpretation of the statute that focuses exclusively on the ultimate security of the

contents rather than the specific method of acquisition not only renders the statute a

virtual nullity but produces absurd results.

       The court of appeals held that what Townsend said was not protected by statute

because he could not expect parties to the communication—his team—not to repeat

any of it. If that is all that matters, the statute has little or no purpose. Outside of a

relationship of professional privilege or contractual non-disclosure, no one can

reasonably expect that something shared will never be repeated by the listener(s). If


  53
       TEX. CODE CRIM. PROC. art. 18.20 §1(3) (emphasis added).

                                            14
repetition were impossible, trust would be unnecessary. The court’s interpretation

renders the statute, which on its face is broadly applicable, useless in all but

circumstances in which the speaker is already protected by law.

      It could be that appellant and the court of appeals, without saying so, look at

16.02(b)(2)—the “disclosure” aspect of the offense—and ask what difference it

makes who reveals the contents if no listener was bound. This would miss the point

of subsection (b)(2), which is meant to prevent anyone from knowingly profiting from

or exacerbating an already-existing violation of the subsection. It is akin to the “fruit

of the poisonous tree” doctrine; it was neither written nor intended as a blanket ban

on repeating anything one hears.

      Second, the undesirable practical effect of a “privacy of contents” approach is

apparent. As noted above, it is an affirmative defense that the interceptor is a party

to the communication. Because one’s spouse could legally record what is done or

said in the marital bedroom and share it with a third party, the “content” rationale

dictates that a third party could simply cut out the middle man with no harm done.

This cannot be the legislature’s intent. This absurdity can be avoided by adhering to

the plain language of the statute, which prevents intrusions by third parties.




                                           15
IV.    Extratextual sources confirm the plain meaning of the statute.

       If resort to extratextual sources is necessary, the federal and state legislative

histories, policy pronouncements of the Supreme Court, and better-reasoned decisions

interpreting the federal analogue all support a framework that focuses on the narrow

expectation of being free from electronic interception.

Texas legislative history

       According to the Bill Analysis from the House Criminal Jurisprudence

Committee, article 18.20 and section 16.02 were passed in response to Title III’s

statement that “states must enact specific legislation if they desire to implement the

authority granted in the [Omnibus Crime Control and Safe Streets] Act to conduct

electronic surveillance.”54 Article 18.20 “generally follows the provisions of Title

III” except for provisions not relevant here.55 Little is said about section 16.02,

except that it “[p]rovides a penal sanction for the interception and/or disclosure of

wire or oral communications outside the scope of this Act[,]” and that exceptions are

provided for, inter alia, “[c]onsensual surveillance.”56 The author acknowledged that



  54
        The Bill Analysis for H.B. 360, 67th Leg. R.S., p.1. The analysis can be found at
http://www.lrl.state.tx.us/LASDOCS/67R/HB360/HB360_67R.pdf#page=45 but is also included in
the Appendix.
  55
       Bill Analysis at 1.
  56
       Id. at 4.

                                           16
Texas’s statute could be “more restrictive than the Federal Act, and therefore more

protective of individual privacy . . . .”57            Based on this fact alone, it is not

unreasonable to conclude that whatever ambiguity exists in the statute should be

construed in favor of protection from interception regardless of whether Congress

intended the Wiretap Act to be the mere statutory adoption of what was then an

unsettled Fourth Amendment expectation-of-privacy analysis.

Federal legislative history

        But the report of the United States Senate Committee on the Judiciary shows

that the bill was not meant to codify what would later become the subjective/objective

analysis for privacy.58 Title III of the Omnibus Crime Control and Safe Streets Act

of 1968, also known as the “Wiretap Act,” was created in response to the Supreme

Court’s then-recent cases on wiretapping and electronic surveillance, Berger v. New

York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967).59

Recognizing that “authorized wiretapping and electronic surveillance techniques by


   57
        Id. at 1.
  58
        S. Rep. No. 1097, 90th Cong., 2d Sess., Reprinted in (1968) U.S.Code Cong. & Admin.News
(hereafter referred to as U.S.C.C.A.N.) beginning at p. 2112. Further cited pages are included in the
Appendix.
   59
        In Berger, the Supreme Court struck down New York statutory scheme providing for the
installation of recording devices on the ground that the framework for obtaining judicial approval
lacked the particularity and proof of suspicion required by the Fourth Amendment. 388 U.S. at 54-
60. Katz is discussed in detail ante.

                                                17
law enforcement officials are indispensable legal tools,”60 “the drafters “used the

Berger and Katz decisions as a guide in drafting title III.”61 Both Berger and Katz are

summarized in some detail in the report.62 As it stated in its list of people and

organizations supporting the bill, “the purpose of title III” was creating “[l]egislation

meeting the constitutional standards set out in the decisions, and granting law

enforcement officers the authority to tap telephone wires and install electronic

surveillance devices in the investigation of major crimes and upon obtaining a court

order[.]”63

        Regarding the specific provisions at issue, “[e]ach section of title III is

discussed in detail in the analysis section of this title, including those provisions

which are intended to conform to the Berger and Katz decisions.”64 Section 2510

contained applicable definitions, including that for “oral communication,” which was

written “to include any oral communication uttered by a person exhibiting an



   60
        U.S.C.C.A.N. at 2161.
   61
        Id. at 2163.
   62
         Id. at 2161-62. Relevant later, only the majority opinion of Katz is mentioned. Neither
Justice Harlan nor the privacy analysis set forth in his concurrence, which years later would be
adopted by the Supreme Court in Smith v. Maryland as the standard for expectations of privacy and
later standing, are mentioned.
   63
        U.S.C.C.A.N. at 2163.
   64
        Id. at 2163.

                                               18
expectation that such communication is not subject to interception under

circumstances justifying that expectation.”65 This definition was “intended to reflect

existing law[,]” citing Katz.66 Thus, “The person’s subjective intent or the place

where the communication is uttered is not necessarily the controlling factor.” “[S]uch

an expectation,” referring in context to “an expectation that such communication is

not subject to interception,” “would clearly be unjustified in certain areas; for

example, a jail cell or an open field.”67 And while a person would “[o]rdinarily . . .

be justified in relying on such expectation when he was in his home or office, . . .

even there, his expectation under certain circumstances could be unwarranted, for

example, when he speaks too loudly.”68 The analysis of that section concluded: “the

person’s expectation that his communication is or is not subject to “interception” . .



   65
        Id. at 2178 (codified at 18 U.S.C. § 2510(2)).
   66
         Id. The reader is also asked to “compare” Lee v. State, 191 So. 2d 84 (Fla. 1966), an
intermediate appellate court opinion about the legality of police arranging with the telephone
company to set up a recorder on a party line, and United States v. South-Eastern Underwriters Ass’n
(SEUA), 322 U.S. 533 (1944), which “required the Court to decide the issue of whether the
Commerce Clause grants to Congress the power to regulate insurance transactions stretching across
state lines.” Id. at 534. Lee was presumably cited because it asserted that “there were no state or
federal statutes applicable in Florida which would make wiretapping illegal and inadmissible in
evidence,” 191 So. 2d at 85, and SEUA to demonstrate Congress’s authority to create it. The Senate
report noted that Lee’s petition for writ of certiorari was granted. Lee was subsequently reversed by
the Supreme Court on the grounds that the police conduct violated the Federal Communications Act
of 1934. Lee v. Florida, 392 U.S. 378, 380 (1968).
   67
        U.S.C.C.A.N. at 2178 (citations omitted).
   68
        Id. (citations omitted).

                                                 19
. is thus to be gathered and evaluated from and in terms of all the facts and

circumstances.”69

       The federal definition of “oral communication” was thus intended to say

exactly what it says. As should be expected in a statutory scheme about electronic

surveillance, the term defining the focus of secret recording hinges on the expectation

that what you are saying is not being secretly recorded. It is not, as uncritically

accepted by the court of appeals, about a broad expectation of privacy or even the

narrower expectation that what you say will never be repeated to anyone by the other

party. This is entirely consistent with Katz, which it was “intended to reflect.”

       Katz was convicted of transmitting wagering information across state lines via

telephone.70 The FBI obtained his conversations through an electronic listening and

recording device attached to the outside of the public telephone booth he used to

placed his calls.71 The Supreme Court rejected any formulation of the issues based

on the “incantation of the phrase ‘constitutionally protected area’” or a “general

constitutional ‘right to privacy.’”72 “That Amendment protects individual privacy

against certain kinds of governmental intrusion, but its protections go further, and

  69
       Id.
  70
       Katz, 389 U.S. at 348 & n.1.
  71
       Id. at 348.
  72
       Id. at 349-50.

                                          20
often have nothing to do with privacy at all.”73

       Stating that “the Fourth Amendment protects people, not places,” Katz held that

“what [a person] seeks to preserve as private, even in an area accessible to the public,

may be constitutionally protected.”74 Distinguishing the various privacy interests at

play, it pointed out that “what [Katz] sought to exclude when he entered the booth

was not the intruding eye -- it was the uninvited ear. He did not shed his right to do

so simply because he made his calls from a place where he might be seen.”75 “One

who occupies [a phone booth], shuts the door behind him, and pays the toll that

permits him to place a call is surely entitled to assume that the words he utters into

the mouthpiece will not be broadcast to the world.”76 “The Government’s activities

in electronically listening to and recording the petitioner’s words violated the privacy

upon which he justifiably relied while using the telephone booth and thus constituted

a ‘search and seizure’ within the meaning of the Fourth Amendment.”77

       Comparison of the federal definition of “oral communication” with the

Supreme Court’s analysis shows that the definition does indeed reflect the majority

  73
       Id. at 350.
  74
       Id. at 351.
  75
       Id. at 352.
  76
       Id.
  77
       Id. at 353.

                                          21
opinion in Katz. By entering the phone booth and shutting the door, even in public,

Katz exhibited an expectation that, while he could be seen and perhaps his lips read,

what he “utters” would not be recorded by strangers to the conversation and then

“broadcast to the world.” This was justified under the circumstances. The definition

of “oral communication” provides no more, nor any less, protection. It is thus

difficult to argue with the Supreme Court’s conclusion in Bartnicki v. Vopper that

Congress drafted Title III “[l]argely in response to [Berger], and to our holding in

Katz v. United States, that the attachment of a listening and recording device to the

outside of a telephone booth constituted a search . . . .”78

       In short, Berger was about wiretapping and electronic surveillance. Katz was

about wiretapping and electronic surveillance. Title III was about wiretapping and

electronic surveillance in response to Berger and Katz. It makes no sense to hold that

Title III, or a statute that mirrors it, is concerned with broad issues of privacy or

privilege rather than the narrow issue of wiretapping, electronic surveillance and the

fruits of those specific violations.

Policy supports a plain reading of the statute.

       If the Senate Report is insufficient to confirm the meaning of the statute from

which the Texas scheme was derived, the policy behind Title III—and the prohibition


  78
       532 U.S. 514, 523 (2001) (emphasis added) (citations omitted).

                                              22
on disclosure in particular—were thoroughly considered by the Supreme Court in

Bartnicki v. Vopper. In that case, the Supreme Court addressed the “novel and

narrow” question of, “Where the punished publisher of information has obtained the

information in question in a manner lawful in itself but from a source who has

obtained it unlawfully, may the government punish the ensuing publication of that

information based on the defect in a chain?”79 Its holding was based on specific facts

and legal claims not present in this case,80 but its analysis considered the purpose of

criminalizing the disclosure of private conversations.

        While the First Amendment is typically cited for our freedom of speech,

“[t]here is necessarily, and within suitably defined areas, a concomitant freedom not

to speak publicly, one which serves the same ultimate end as freedom of speech in its

   79
        Id. at 517, 528 (2001).
  80
        An illegal recording of a phone conversation between a union representative and its president
was ultimately provided to and aired by a local radio host. Id. at 518-19. In it, the two discussed
threats of violence against their opposition. Id. at 518. The Supreme Court’s decision to hold the
federal analogue to section 16.02(b)(2) unconstitutional as applied were based on three
distinguishing characteristics: 1) “respondents played no part in the illegal interception,” 2) “their
access to the information on the tapes was obtained lawfully, even though the information itself was
intercepted unlawfully by someone else[,]” and 3) “the subject matter of the conversation was a
matter of public concern[;] [i]f the statements about the labor negotiations had been made in a public
arena -- during a bargaining session, for example -- they would have been newsworthy.” Id. at 525.
The concurrence, accounting for the fifth and sixth votes of the majority, was more forceful, agreeing
with the “narrow holding . . . limited to the special circumstances present here: (1) the radio
broadcasters acted lawfully (up to the time of final public disclosure); and (2) the information
publicized involved a matter of unusual public concern, namely a threat of potential physical harm
to others.” Id. at 535-36 (Breyer, J., concurring) (citation and internal quotations omitted). “Given
these circumstances, along with the lawful nature of [the broadcasters’] behavior, the statutes’
enforcement would disproportionately harm media freedom.” Id. at 540.

                                                 23
affirmative aspect.”81 “In a democratic society[,] privacy of communication is

essential.”82 “Title III’s restrictions are intended to protect that interest, thereby

encouraging the uninhibited exchange of ideas and information among private parties

. . . .”83 As the Presidents’s Commission on Law Enforcement and Administration of

Justice put it, “Fear or suspicion that one’s speech is being monitored by a stranger,

even without the reality of such activity, can have a seriously inhibiting effect upon

the willingness to voice critical and constructive ideas.”84 The court called this “a

chilling effect on private speech.”85 Moreover, “the disclosure of the contents of a

private conversation can be an even greater intrusion on privacy than the interception

itself.”86 “As a result, there is a valid independent justification for prohibiting such

disclosures by persons who lawfully obtained access to the contents of an illegally

intercepted message, even if that prohibition does not play a significant role in

preventing such interceptions from occurring in the first place.”87


  81
       Id. at 533 n.20 (2001) (citations and internal quotations omitted).
  82
       Id. at 533 (quoting The Challenge of Crime in a Free Society 202 (1967)).
  83
       Id. at 532 (citations and internal quotations omitted).
  84
       Id. at 533 (quoting The Challenge of Crime in a Free Society 202 (1967)).
  85
       Id.
  86
       Id. at 533.
  87
       Id.

                                                24
        Again, whatever ambiguity exists in the definition of “oral communication”

should be resolved in favor of an interpretation that supports prohibition of the

monitoring and dissemination of private speech by strangers to that communication.

Federal courts that attempt an analysis support the plain language.

        To whatever extent this Court’s analysis is to be influenced by federal cases on

Title III, there is no “leading case” as there was in Alameda. There are certainly many

cases that, like the single case relied upon by the court of appeals, treat the analyses

under Title III and the Fourth Amendment as identical, explicitly or otherwise.88

There are also a number of opinions that are unclear, at times focusing on the plain

language of the statute but also applying Justice Harlan’s formulation of Katz or

treating the analyses as equivalent.89 At least one case reduces the issue to the

   88
        See, e.g., United States v. Peoples, 250 F.3d 630, 637 (8th Cir. Mo. 2001) (“Before the
interception of a conversation can be found to constitute a search under the Fourth Amendment or
an ‘oral communication’ under the federal wiretap law, therefore, the individuals involved must
show that they had a reasonable expectation of privacy in that conversation.”); United States v.
Clark, 22 F.3d 799, 801 (8th Cir. Iowa 1994) (“Under either the fourth amendment or the Wiretap
Act, the inquiry is 1) whether defendant manifested a subjective expectation of privacy, and 2) if so,
whether society is prepared to recognize that expectation as reasonable.”); United States v.
McKinnon, 985 F.2d 525, 527 (11th Cir. Fla. 1993) (“the statutory and constitutional test is whether
a reasonable or justifiable expectation of privacy exists. . . . First, whether McKinnon’s conduct
exhibited a subjective expectation of privacy; second, whether McKinnon’s subjective expectation
of privacy is one that society is willing to recognize as reasonable.”); In re John Doe Trader Number
One, 894 F.2d 240, 242-43 (7th Cir. Ill. 1990) (“Congress limited its protection of ‘oral
communications’ under Title III to those statements made where ‘first, a person [has] exhibited an
actual (subjective) expectation of privacy and, second, that the expectation be one that society is
prepared to recognize as reasonable.’”) (citing Katz, 389 U.S. at 361 (Harlan, J., concurring)).
  89
        United States v. Dunbar, 553 F.3d 48, 57 (1st Cir. Mass. 2009) (citations omitted) (quoting
                                                                                     (continued...)

                                                 25
expectation of revelation, like the court of appeals in this case.90 Others are, for lack

of a better word, unique.91

   89
     (...continued)
definition of “oral communication,” agreeing that the legislative history shows that Congress
intended this definition to “parallel the ‘reasonable expectation of privacy test’ articulated by the
Supreme Court in Katz[,]’” and holding “that the back of a police car is not a place where individuals
can reasonably expect to communicate in private.”); United States v. Turner, 209 F.3d 1198, 1200-01
(10th Cir. Wyo. 2000) (equating an “actual, subjective expectation of privacy” with the expectation
“that his communications were not subject to interception” but deciding that it “need only address
the second, objective prong” and concluding that “under Title III or the Fourth Amendment, society
is not prepared to recognize an expectation that communications in a patrol car, under facts presented
here, are not subject to interception.”); United States v. Harrelson, 754 F.2d 1153, 1169-71 (5th Cir.
Tex. 1985) (framing the “question presented” as “whether the Harrelsons had a reasonable
expectation of privacy as they spoke to each other in jail” but, after quoting the entire Senate Report
analysis on “oral communication,” holding that Harrelson’s conversations were not oral
communications because “evidence showing the Harrelsons to have known or suspected that
attempts would be made to eavesdrop on their conversations at the jail.”); Angel v. Williams, 12 F.3d
786, 790 n.6 (8th Cir. Mo. 1993) (citation omitted) (claiming not to “resolve the dispute between the
parties whether, as the officers suggest, the expectation of non-interception is different in some way
from the Fourth Amendment expectation of privacy.”), id. at 790 (“We hold that the circumstances
here do not justify an expectation that the incident in question was not subject to interception, and
therefore no statutory ‘oral communications’ of the officers were intercepted.”).
  90
       United States v. Longoria, 177 F.3d 1179, 1181-82 (10th Cir. Kan. 1999) (citations omitted)
(“for Title III to apply, the court must conclude: (1) the defendant had an actual, subjective
expectation of privacy - i.e., that his communications were not subject to interception; and (2) the
defendant’s expectation is one society would objectively consider reasonable.”), 1183 (concluded
that Longoria “had no reasonable expectation that the person in whose presence he conducts
conversations will not reveal those conversations to others.”).
   91
        A good example is United States v. Larios, 593 F.3d 82, 92-93 (1st Cir. Mass. 2010). That
court used an analysis “parallel” to Katz with the clarification that the expectation of privacy at issue
was “that his communications were not subject to interception[,]” but “concluded that the most
reasonable reading of the statute is that the meaning of ‘oral communication’ was intended to parallel
evolving Fourth Amendment jurisprudence on reasonable expectations of privacy in one’s
communications.” Id. at 92. It then denied the claim based on Minnesota v. Carter, 525 U.S. 83
(1998), a case decided on the lack of privacy interest of a brief visitor to a motel room for a drug
deal. Id. at 93 (emphasis in original). However, the court also considered that “at least in theory,
privacy interests in not being overheard may be greater than in not being seen, and vice versa,
depending on the circumstances of the case[,]” and that “as a general matter, whether an individual
                                                                                           (continued...)

                                                   26
        What nearly all of these cases have in common is that the facts presented a

typical law enforcement scenario, i.e., the recorded conversation took place in a

police car,92 at a jail or police station,93 during a sting operation,94 or in front of a

government agent or informant.95 Those cases make it easy to avoid any deep

statutory analysis because, regardless of the framework used, society is not prepared

to recognize an expectation that such communications are in any way private. The

cases in which greater care was taken to apply the plain language of the statute to


   91
     (...continued)
has a reasonable expectation of privacy may depend in part on the nature of the government
intrusion.” Id. at 94. Performing a separate analysis, it concluded that there was “no reasonable
expectation that he would be free from audio surveillance during his brief visit to another person’s
motel room.” Id. at 94-95.
  92
        Dunbar, 553 F.3d at 53 (audio recording equipment inside the cruiser recorded incriminating
statements made by Dunbar to his wife); Clark, 22 F.3d at 800-01 (trooper activated tape recorder
on his dash after Clark and the driver asked if they could sit in the patrol car during the consensual
search of the car); Turner, 209 F.3d at 1199 (Turner’s conversation with a companion recorded in
the back seat of a highway patrol car by a concealed tape recorder); McKinnon, 985 F.2d at 526 (tape
recording of his pre-arrest conversation while he sat in the back seat area of a police car).
 93
        Harrelson, 754 F.2d at 1169 (Harrelson’s conversations with his wife during her visits to him
at the Harris County Jail were recorded by a career criminal who occupied the neighboring cell using
a disguised tape recorder given to him by the FBI); Angel v. Williams, 12 F.3d at 787-88, 790
(tape-recording of an incident that took place in a public jail and between police officers and a
prisoner played at an administrative hearing on alleged excessive force); Peoples, 250 F.3d at 634-45
(recorded conversation between a prison inmate and visitor).
  94
       Larios, 593 F.3d at 85 (DEA agents rented two rooms at a Motel 8 and installed a concealed
audio/video recording device in one to record a drug deal in the other).
   95
       In re John Doe Trader Number One, 894 F.2d at 241 (undercover FBI agents wearing
recording devices posed as traders on the floor of the Chicago Mercantile Exchange as part of a
grand jury investigation); Longoria, 177 F.3d at 1181 (a government informant overheard and
recorded Longoria conversing with his co-defendants in the informant’s tire shop).

                                                 27
ascertain the intent of the drafters present more novel scenarios: unethical television

interviewers, pocket dialing, and office surveillance.

        In Boddie v. American Broadcasting Cos. (ABC), an alleged participant in a

judicial scandal consented to be interviewed by Geraldo Rivera and others in her

home but refused to appear on camera.96 Unbeknownst to Boddie, the journalists

recorded the interview by using a hidden videotape camera and concealed

microphones.97 A segment of her interview, with video and audio, aired on “20/20.”98

In response to her suit under Title III, ABC argued that Boddie had no reasonable

expectation of privacy.99 Quoting the definition of “oral communication,” the court

distinguished Boddie’s undisputed “aware[ness] that she was speaking with reporters

from ABC” from “whether Boddie had an expectation that the interview was not

being recorded and whether that expectation was justified under the

circumstances.”100 It noted that:

  the statute requires that the plaintiff show only no expectation that the oral
  communication was being intercepted through the use of electronic devices.
  Thus, there “may be some circumstances where a person does not have an

  96
        731 F.2d 333, 335 (6th Cir. Ohio 1984).
  97
        Id.
  98
        Id.
  99
        Id. at 338.
  100
        Id. at 338-39.

                                              28
  expectation of total privacy, but still would be protected by the statute because
  he was not aware of the specific nature of another’s invasion of his privacy.”101

So, while Boddie could not reasonably expect that the words she said to Geraldo

would not be repeated, she was justified in expecting that her interview would not be

recorded and broadcasted because she spoke on that condition.

          In Huff v. Spaw,102 that court elaborated on how the definition of “oral

communication” dictates the framework. Huff pocket-dialed Spaw, a co-worker, who

listened to and transcribed or recorded large portions of a lengthy conversation

between Huff and a colleague and, later, Huff and his wife.103 The court noted that

the appropriate expectations analysis “parallels the reasonable-expectation-of-privacy

test articulated by Justice Harlan in Katz,”104 but drew crucial distinctions based on

the plain language of the definition.                  “Courts generally refer to Katz’s

reasonable-expectation test as having a subjective part and an objective part, but the

division of labor between these two parts is ill-defined in the Title III context.”105 It

concluded that “whether a person had an internal belief in an expectation of privacy


  101
          Id. at 339 (quoting Bianco v. American Broadcasting Cos., 470 F. Supp. 182, 185 (N.D. Ill.
1979)).
   102
          794 F.3d 543 (6th Cir. Ky. 2015).
   103
          Id. at 545.
   104
          Id. at 548.
   105
          Id. at 549.

                                                 29
. . . is irrelevant because it is subsumed by the exhibited-an-expectation inquiry”:

  If a person lacked an internal belief in privacy, then he would not have exhibited
  an expectation of privacy and so would fail the reasonable-expectation test. If
  the person held an internal belief but did not exhibit that belief in an outward
  manner, he would also fail the reasonable-expectation test due to his inability
  to satisfy the first objective subpart. Therefore the only relevant inquiries are
  the two objective subparts: (1) whether a person exhibited an expectation of
  privacy and (2) whether that expectation was reasonable. . . . These two inquires
  track Title III’s statutory text that first, a person “exhibit[ed] an expectation that
  such communication is not subject to interception” and second, “under
  circumstance justifying such expectation.” 18 U.S.C. § 2510(2). We therefore
  bifurcate Katz’s reasonable-expectation test—at least in the Title III
  context—into these two inquiries.106

So there is a parallel, two-step analysis but it must be different because the statute

requires a focus 1) on exhibition rather than internal beliefs, and 2) on “interception”

rather than general privacy interests. Applying this framework to the facts, the court

held that Huff did not exhibit any expectations because he was aware of the

phenomenon of pocket-dialing and did not take appropriate measures to prevent it.107

His wife, however, was not held responsible for his negligence. Citing Boddie v.

ABC, the court reiterated “that someone who knowingly converses with a person who

may be carrying an interception-capable device can nonetheless enjoy a reasonable




  106
        Id. at 549-50.
  107
        Id. at 552.

                                           30
expectation of privacy from interception.”108 It held that “[Mrs.] Huff’s expectation

of privacy from interception was justified under the circumstances.”109

         A similar analysis was conducted by the Eleventh Circuit in Walker v. Darby.110

A coworker told Walker to be careful about what he said while standing near his work

station, or “case area,” because he believed that Walker’s conversations were being

monitored.111 Walker filed a Title III complaint after he found an “intercom-like

object” and another box with buttons near his workstation.112 The court identified

three relevant issues based on the plain language of the definition of “oral

communication.”113 The court was explicit:

   We note as an initial matter that we do not need to determine whether Walker
   had a reasonable expectation of privacy in his case area in the Florence Post
   Office. The statute requires us to determine whether he had a subjective


   108
         Id.
   109
         Id. at 554.
   110
         911 F.2d 1573 (11th Cir. Ala. 1990).
   111
         Id. at 1575.
   112
         Id.
   113
        Id. at 1577 (citing 18 U.S.C. § 2510) (identifying the summary judgment elements as “1)
whether Walker’s communications were indeed intercepted by Darby, Day, and Robinson through
the use of any electronic, mechanical or other device; 2) whether Walker had an expectation that his
oral communications were not subject to interception; and 3) whether, if Walker had such an
expectation, the expectation was justified under the circumstances.” See also id. at 1578 (“In order
to survive summary judgment, Walker would have had to raise a question of fact for trial regarding
whether he expected his conversations to be free from interception, and whether, if he had this
expectation, it was justified by the circumstances.”).

                                                31
  expectation that his conversations were free from interception, and whether that
  expectation was objectively reasonable.114

It reiterated:

  Again, we must distinguish this inquiry from the question of whether Walker
  had an objectively reasonable expectation that conversations taking place near
  his case would be overheard. The case was located in an area shared with other
  workers. But while Walker might have expected conversations uttered in a
  normal tone of voice to be overheard by those standing nearby, it is highly
  unlikely that he would have expected his conversations to be electronically
  intercepted and monitored in an office in another part of the building.115

Like the Sixth Circuit, the Eleventh Circuit recognized that the focus of Title III is

narrower than a generic right to privacy, and that even the understanding that your

words may be overheard by others is different from expecting them to be secretly

electronically monitored by remote interceptors.

         As illustrated, there is a case for every view of the statute. And circuit courts

sometimes change position without explanation, perhaps based on the traditional

police scenarios presented.116           But many of the cases espousing the

“subjective/objective expectation of privacy” model do so based on uncritical

adoption of other courts’ decisions; bad ideas do not get better through repetition.



   114
         Id. at 1578.
   115
         Id. at 1579.
   116
      For example, the Eleventh Circuit decided Walker v. Darby three years before it decided
McKinnon, which found no reasonable expectation of privacy in the backseat of a patrol car.

                                             32
The more thorough cases from the Sixth and Eleventh Circuits are more persuasive,

but there is no substitute for a court adhering to its own framework for statutory

construction and making its own determination.

Cases relied upon by appellant and the court of appeals are irrelevant.

         The court of appeals reviewed three cases which it said “make clear that an

educator has no expectation of privacy in a space where he or she is providing

instructional communications and activities to students.”117 These cases are Roberts

v. Houston Independent School District,118 Plock v. Board of Education,119 and Evens

v. Superior Court.120 If these cases were cited to prove that children repeat things, it

was unnecessary. And their facts make them readily distinguishable. In two cases,

the teachers objected to the “open and obvious” use of cameras, with their knowledge,

in the classroom by school administrators.121              In the third case, two students

surreptitiously videotape-recorded their teacher who, along with her union, sought an

injunction prohibiting the school board and district from viewing, showing or


   117
         Long, 469 S.W.3d at 313.
   118
         788 S.W.2d 107 (Tex. App.–Houston [1st Dist.] 1990, writ. denied).
   119
         545 F. Supp. 2d 755 (N.D. Ill. 2007).
   120
         77 Cal. App. 4th 320 (Cal. App. 2d Dist. 1999, review denied).
  121
        Roberts, 788 S.W.2d at 108 (use of videotaping as part of performance review); Plock, 545
F. Supp. 2d at 756 (“open and obvious” installation of cameras in response to recent allegations of
abuse).

                                                 33
distributing the videotape.122 None of these cases shed light on the present situation:

prosecution for violation of a statute designed to protect a speaker from being secretly

recorded by people who were not permitted into the room.

IV. Coach Townsend exhibited a justified expectation that his words would
not be stolen by excluded parties.

         The plain language of the statute is also its only reasonable interpretation.

Based on the plain language, what Townsend said to his team was an “oral

communication” if, when he said it, he exhibited a justified expectation that it would

not be electronically stolen by people he had excluded from the room. Townsend’s

words were uttered in an area of the school that was generally for athletes only, at the

farthest point in this area from the rest of the people in attendance, behind two closed

doors, in an area for his team and staff only that he considers their “refuge” and “a

place we can call our own.” This place also happened to be a girls’ locker room

where the girls changed clothes before and after the game. It is unclear what extra

steps he should have taken to exhibit a more clear expectation that people excluded

from his team’s refuge would not sneak in and plant recording devices.123 It is

similarly unclear how anyone in that situation would not be justified in that


   122
      77 Cal. App. 4th at 322. California requires all parties to consent to recording. CAL. PEN
CODE § 632(c).
   123
         If the statute silently requires a subjective expectation, Townsend testified to such.

                                                  34
expectation.

V.    Conclusion

      If the privacy interest at stake is the expectation that children will adhere to

some unspoken code of silence, that expectation is absurd. If, however, the interest

at stake is the narrower expectation that only you and the people present have the

power to record and/or repeat what was said, the calculus changes. One can concede

that words, once spoken, are no longer secret without giving up all aspects of privacy

regarding those words. The plain language of “oral communication” is meant to

protect only the narrow interest in not being secretly recorded by people you have

made efforts to exclude from the conversation.

      As with any inquiry into the justifications for this expectation, it is a fact-

intensive analysis taking into account all of the circumstances.        This case is

straightforward. Townsend exhibited an expectation that his words would not be

intercepted when he spoke them in a girls’ locker room assigned to his team rather

than in front of a crowd in the gym. What he said was an “oral communication,” and

appellant’s conviction should be affirmed.




                                         35
                            PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

reverse the judgment of the Court of Appeals.

                                      Respectfully submitted,


                                        /s/ John R. Messinger
                                      JOHN R. MESSINGER
                                      Assistant State Prosecuting Attorney
                                      Bar I.D. No. 24053705

                                      P.O. Box 13046
                                      Austin, Texas 78711
                                      information@spa.texas.gov
                                      512/463-1660 (Telephone)
                                      512/463-5724 (Fax)




                                       36
                      CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to the WordPerfect word count tool this

document contains 10,273 words.


                                                /s/ John R. Messinger
                                              John R. Messinger
                                              Assistant State Prosecuting Attorney

                         CERTIFICATE OF SERVICE

     The undersigned hereby certifies that on this 21st day of December, 2015, a

true and correct copy of the State’s Brief on the Merits has been eFiled or e-mailed

to the following:

Andrea R. Simmons
1450 East McKinney
Denton, Texas 76209
Andrea.Simmons@dentoncounty.com

Bruce Anton
2311 Cedar Springs, Suite 250
Dallas, Texas 75201
ba@sualaw.com

                                                /s/ John R. Messinger
                                              John R. Messinger
                                              Assistant State Prosecuting Attorney




                                         37
APPENDIX




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