                                                                                        ACCEPTED
                                                                                    01-15-00102-CR
                                                                         FIRST COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                              8/10/2015 11:14:55 AM
                                                                              CHRISTOPHER PRINE
                                                                                             CLERK


        Nos. 01-15-00102-CR, 01-15-00103-CR
                 and 01-15-00104-CR       FILED IN
                                                         1st COURT OF APPEALS
                                                             HOUSTON, TEXAS
                                                         8/10/2015 11:14:55 AM
          IN THE FIRST COURT OF                 A P P E ACHRISTOPHER
                                                          LS             A. PRINE
                                                                  Clerk
                      HOUSTON, TEXAS


                  BRODRICK MICHAEL JAMES,

                              Appellant,

                                 Vs.

                      THE STATE OF TEXAS,

                              Appellee.

                 Appeal from the 149th District Court
                      Brazoria County, Texas
           Trial Court Cause Nos. 74207, 74208 and 74209


BRIEF FOR THE APPELLEE, THE STATE OF TEXAS



                                           Trey D. Picard
                                           Assistant Criminal District Attorney
                                           State Bar No. 24027742
JERI YENNE – BRAZORIA COUNTY               111 East Locust St., Suite 408A
CRIMINAL DISTRICT ATTORNEY                 Angleton, Texas 77515
                                           (979) 864-1233
                                           (979) 864-1712 Fax
                                           treyp@brazoria-county.com

                                           Attorney for the Appellee,
Oral argument is requested.                The State of Texas
             IDENTITY OF PARTIES AND COUNSEL


Appellant:                    Brodrick Michael James


Appellee:                     The State of Texas


Attorney for the Appellant:   Keith G. Allen
                              State Bar No. 01043550
                              Law Offices of Keith G. Allen, PLLC
                              2360 CR 94, Suite 106
                              Pearland, Texas 77584
                              (832) 230-0075
                              (832) 413-5896 Fax
                              Keith@KGAllenLaw.com


Attorney for the Appellant    Faye Gordon
at Trial:                     State Bar No. 08197500
                              Attorney at Law
                              201 E. Myrtle, Suite 126
                              Angleton, Texas 77515
                              (979) 849-3330
                              Faye@FayeGordonLaw.com


Attorney for the Appellee     Trey D. Picard
on Appeal:                    State Bar No. 24027742
                              Assistant Criminal District Attorney
                              111 East Locust St., Suite 408A
                              Angleton, Texas 77515
                              (979) 864-1233
                              (979) 864-1712 Fax
                              treyp@brazoria-county.com




                               ii
Attorneys for the Appellee   Brian Hrach
at Trial:                    State Bar No. 24050787
                             Assistant Criminal District Attorney
                             Rick Martin
                             State Bar No. 24073267
                             Assistant Criminal District Attorney
                             111 East Locust St., Suite 408A
                             Angleton, Texas 77515
                             (979) 864-1233
                             (979) 864-1712 Fax




                             iii
                                    TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................. ii

TABLE OF CONTENTS............................................................................... iv

INDEX OF AUTHORITIES ......................................................................... vi

ABBREVIATIONS FOR RECORD REFERENCES .....................................x

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

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

STATEMENT OF FACTS ..............................................................................3

SUMMARY OF THE ARGUMENT ..............................................................7

ARGUMENT ...................................................................................................8

         1)       The trial court was within its discretion to deny
                  Appellant’s request to discharge his attorney made on
                  the day of trial .............................................................................8

         2)       The recording of Appellant’s accidental call to law
                  enforcement was properly admitted ......................................... 10

                  a)       Appellant did not have a reasonable
                           expectation of privacy in the accidental call ................. 12

                  b)       The investigator’s recording of Appellant’s
                           conversation did not violate the Texas wiretap
                           statute ............................................................................. 16

         3)       Appellant was not prejudiced by any alleged error by
                  his trial counsel ........................................................................ 18

         4)       Appellant retained the right to Appeal for both guilt-
                  innocence and the punishment phases of trial ......................... 20



                                                      iv
CONCLUSION ............................................................................................. 22

PRAYER ....................................................................................................... 23

CERTIFICATE OF SERVICE ..................................................................... 24

CERTIFICATE OF RULE 9.4 COMPLIANCE .......................................... 25

APPENDIX ................................................................................................... 26




                                                       v
                                INDEX OF AUTHORITIES

Cases

Allen v. State,
              No. 08–13–00302–CR, 2015 WL 2183526
              (Tex.App.—El Paso, May 8, 2015, no pet.)
              (not released for publication) ................................................... 17

Barfield v. State,
              416 S.W.3d 743 (Tex.App.—Houston [14th Dist.]
              2013, no pet.)............................................................................ 12

Bourque v. State,
            156 S.W.3d 675 (Tex.App.—Dallas 2005, no pet.)................. 19

Busby v. State,
             990 S.W.2d 263 (Tex.Crim.App.1999).................................... 18

California v. Ciraolo,
             476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed. 210 (1980) ................ 12

Childress v. State,
             794 S.W.2d 119 (Tex.App.—Houston [1st Dist.]
             1990, pet. ref’d) .......................................................................... 8

Dears v. State,
             154 S.W.3d 610 (Tex.Crim.App.2005).............................. 20, 21

Duhig v. State,
             171 S.W.3d 631 (Tex.App.—Houston [14th Dist.]
             2005, pet. ref’d) ........................................................................ 15

Ex Parte Moore,
           395 S.W.3d 152 (Tex.Crim.App.2013).................................... 10

Ex parte Okere,
            56 S.W.3d 846 (Tex.App.—Fort Worth 2001, pet. ref’d) ....... 19



                                                    vi
Ex parte Thomas,
            545 S.W.2d 469 (Tex.Crim.App.1977).................................... 21

Granados v. State,
            85 S.W.3d 217 (Tex.Crim.App.2002)...................................... 11

Horton v. California,
            496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) .......... 15

Huff v. Spaw,
            No. 14-5123, 2015 WL 4430466 (6th Cir.) July 21, 2015)
            (not released for publication) ............................................. 12, 14

Jackson v. State,
             877 S.W.2d 768 (Tex.Crim.App.1994) (en banc).................... 19

James v. State,
             No. 01-06-00795-CR, 2007 WL 2214891
             (Tex.App.—Houston [1st Dist.], Aug. 2, 2007, no pet.)
             (mem.opinion) (not designated publication) .............................. 8

Katz v. United States,
             389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ................ 15

King v. State,
             511 S.W.2d 32 (Tex.Crim.App.1974)........................................ 8

McCall v. State,
            540 S.W.2d 717 (Tex.Crim.App.1976).................................... 15

Minnesota v. Dickerson,
            508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) .... 14, 15

Montgomery v. State,
          810 S.W.2d 372 (Tex.Crim.App.1990)...................................... 8

Moore v. State,
            694 S.W.2d 528 (Tex.Crim.App.1985).................................... 18




                                             vii
Polk v. State,
             738 S .W.2d 274 (Tex.Crim.App.1987)................................... 17

Rylander v. State,
             101 S.W.3d 107 (Tex.Crim.App.2003).................................... 19

Smith v. Maryland,
            442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) .............. 10

Smith v. State,
             91 S.W.3d 407 (Tex.App.—Texarkana 2002, no pet.) ............ 21

State v. Hardy,
             963 S.W.2d 516 (Tex.Crim.App.1997).................................... 11

Thacker v. State,
             999 S.W.2d 56 (Tex.App.—Houston [14th Dist.]
             1999, pet. ref’d) ........................................................................ 19

Thompson v. State,
           9 S.W.3d 808 (Tex.Crim.App.1999) ........................................ 18

Trevino v. State,
             2007 WL 2806659 (Tex.App.—Amarillo, Sep. 27, 2007,
             no pet.) ...................................................................................... 21

Tufele v. State,
              130 S.W.3d 267 (Tex.App.—Houston [14th Dist.]
              2004, no pet.)............................................................................ 21

Tyler v. State,
              137 S.W.3d 261 (Tex.App.—Houston [1st Dist.]
              2004, no pet.).............................................................................. 8

United States v. Fisch,
            474 F2d 1071 (9th Cir.), cert. denied, 412 U.S. 921,
            93 S.Ct. 2742, 37 L.Ed.2d 148 (1973) ..................................... 13

United States v. Ganoe,
            538 F.3d 1117 (9th Cir. 2008) ................................................... 14


                                                     viii
Villarreal v. State,
              935 S.W.2d 134 (Tex.Crim.App.1996).............................. 10, 11

Wall v. State,
             184 S.W.3d 730 (Tex.Crim.App.2006).................................... 12

Walter v. State,
             28 S.W.3d 538 (Tex.Crim.App.2000) ...................................... 14

Wilkerson v. State,
             644 S.W.2d 911 (Tex.App.—Fort Worth 1983, pet. ref’d) ..... 15


Statutes

18 U.S.C. § 2510 (2002) ............................................................................... 13

TEX. CODE CRIM. PROC. ANN. art. 1.14(a) (Vernon 2005) ........................... 20

TEX. CODE CRIM. PROC. ANN. art. 18.20 (Vernon 2015) ........................ 16, 17

TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2011) ........................ 16, 17

TEX. PENAL CODE ANN. § 1.07(a)(1) (Vernon 2011) ................................... 15

TEX. PENAL CODE ANN. § 16.02 (Vernon 2011) .................................... 16, 17


Rules

TEX. R. APP. P. 34.5(c) .................................................................................. 21

TEX. R. APP. P. 44.3 ...................................................................................... 21

TEX. R. APP. P. 44.4 ...................................................................................... 21




                                                     ix
       ABBREVIATIONS FOR RECORD REFERENCES

    Abbreviation                   The Record

1     RR 2:532         Reporter’s Record, vol. 2, page 532.

2      CR 1:45           Clerk’s Record, vol. 1, page 45.

3     Ant. Br. 5            Appellant’s Brief, page 5.

4     Apx. Ex. 1           State’s Appendix, Exhibit 1.

5     RR 5: Sx. 1   Reporter’s Record, vol. 5, State’s Exhibit 1




                           x
                      STATEMENT OF THE CASE

            In a consolidated proceeding, Appellant Brodrick Michael

James was tried for three instances of delivery of a controlled substance,

enhanced, which were indicted under Cause Nos. 74207, 74208 and 74209

(RR 3:8). Trial occurred in the 149th District Court for Brazoria County,

Texas, Hon. Terri Holder presiding. Immediately before trial, Appellant

pleaded guilty to each of those charges (RR 3:9). In exchange for

Appellant’s plea and waiver of a pre-sentence investigation report, the State

agreed to waive a jury trial on punishment (RR 3:10). Following a trial to the

court on punishment, Appellant was sentenced to 45 years confinement in

each cause (RR 4:138).




                                      1
                           ISSUES PRESENTED

             At issue is whether the trial court abused its discretion by

refusing to grant Appellant’s request, made on the day of trial, to dismiss his

court-appointed attorney. The Court of Appeals is also asked to consider

whether the trial court abused its discretion by allowing the admission of an

audio recording of an accidental cellular telephone call made by Appellant

(or “butt dial”) to an undercover officer in which Appellant could be heard

speaking to a third party about Appellant’s intent to rob the officer during a

planned undercover narcotics purchase. In a related issue, the Court is asked

to consider whether Appellant’s trial attorney was ineffective by failing to

preserve the Fourth Amendment challenge for appellate review. Finally, the

Court is asked to consider whether the trial court committed error by

limiting Appellant’s appeal to the punishment phase of trial because of

Appellant’s guilty plea.




                                      2
                       STATEMENT OF FACTS

            Appellant sold methamphetamine to an undercover officer with

the Brazoria County Narcotics Task force on three separate dates: May 8,

2014, May 14, 2014, and May 28, 2014 (RR 4:31-32). Prior to each sale,

Investigator Marcos Salinas contacted Appellant on Appellant’s cellular

telephone to arrange a time and place for the transaction at various points

around Brazoria County (RR 4:30-32). The phone calls between Appellant

and the undercover officer were recorded. The sale of the methamphetamine,

which occurred in Inv. Salinas’s vehicle on each occasion, was also recorded

by a hidden video camera (RR 4:32-33). In a fourth methamphetamine sale

between Appellant and Inv. Salinas, however, the substance Appellant

provided tested negative (RR 4:36-37).

            During the same time period of the methamphetamine sales,

Appellant indicated he wanted to purchase a kilogram of cocaine from Inv.

Salinas (RR 4:37). This discussion resulted in a “flash” meeting on July 18,

2014, in which Inv. Salinas and two other undercover officers showed

Appellant one kilogram of cocaine in a parking lot in Pearland, Texas (RR

4:38-39, 4:40). This meeting resulted in an agreement in which Appellant

agreed to purchase two kilograms of cocaine for $26,000 each (RR 4:41).

Shortly after the “flash” meeting, however, Inv. Salinas received two calls



                                     3
from Appellant’s cellular telephone. The first was to confirm the terms of

the cocaine sale. The second was an accidental telephone call—or “butt

dial”—from the same phone number (RR 4:41-42). Both conversations were

recorded.

             During the second phone call, Inv. Salinas heard Appellant

speaking with an unidentified female in the background (RR 4:43). At about

two minutes into the conversation Appellant said he planned to turn the

cocaine purchase into a “rip-off”—in other words, take the drugs in an

armed robbery (RR 4:44). On hearing this, investigators suspended all future

transactions with Appellant and arrested him (RR 4:44, 4:48). Appellant was

indicted shortly thereafter for possession of a controlled substance with

intent to deliver for the three prior methamphetamine sales. Appellant’s

charges were enhanced with a prior conviction for aggravated robbery that

occurred on April 13, 2008 (RR 4:8-9).

             The matter was called to trial on January 26, 2015. Before trial

was set to begin that day, Appellant pleaded guilty to the three possession

charges in Cause Nos. 74207, 74208 and 74209 (RR 3:9). In exchange for

this guilty plea, the State agreed to waive its right to a jury trial on

punishment—as the defendant wanted his punishment to be decided by the

trial court. Appellant waived his right to a pre-sentence investigation report



                                      4
before sentencing (RR 3:10-12). Appellant also pleaded “true” to the

enhancement paragraphs of the indictments, which alleged Appellant had

been previously convicted of aggravated robbery (RR 3:12). Trial then

proceeded to the punishment phase two days later.

            During punishment, the trial court considered evidence of

Appellant’s prior robbery conviction in which he used a rifle (stolen about

one year prior to that offense) to rob a local convenience store, striking the

cashier in the head with the butt of the weapon in the process (RR 4:10-13,

4:17, 4:102-04). Appellant evaded capture briefly, hiding in his

grandmother’s attic before being discovered by the police (RR 4:11).

Appellant then—while handcuffed—broke away from the arresting officer

and continued to elude investigators before finally being arrested in Houston

about one week later (RR 4:12).

            The defense called Appellant’s father who testified Appellant

had been placed with the Texas Youth Commission from the age of 14 to 16

before being arrested for the aggravated robbery charge after Appellant

turned 17, and served another 5 years of incarceration (RR 4:58-60).

Appellant’s father told the court he hoped the trial court would not sentence

his son to not too much time since Appellant had regretted what he had done

and that this was a “turning point” in Appellant’s life (RR 4:63-64).



                                      5
Appellant also called his maternal aunt and a local pastor before taking the

stand himself in support of his plea for leniency. At the close of punishment,

however, the trial court sentenced Appellant to 45 years confinement on

each case (RR 4:137-38).




                                      6
                   SUMMARY OF THE ARGUMENT

             The trial court did not abuse its discretion in refusing to allow

Appellant to discharge his lawyer on the day of trial when there was no

evidence of bad faith, insincerity, or disloyalty toward Appellant by his

attorney. Further, Appellant did not have a reasonable expectation of privacy

under the Fourth Amendment in his conversation with a third party that was

transmitted to law enforcement accidentally (in what is commonly known as

a “butt dial”) on Appellant’s cellular telephone due to his own carelessness,

neither did the recording of that accidental call violate Texas law. Thus, the

recording was properly admitted. In addition, because Appellant’s Fourth

Amendment challenge is without merit, defense counsel cannot be

considered ineffective for allegedly failing to preserve the issue. Finally,

given Appellant’s guilty plea and agreement with the State to have the trial

court decide punishment without a pre-sentence investigation report, the

court did not abuse its discretion by limiting Appellant’s appeal to the

punishment phase of trial.




                                      7
                                   ARGUMENT

       1)     The trial court was within its discretion to deny Appellant’s
              request to discharge his attorney made on the day of trial.

              A trial court’s denial of a defendant’s motion to dismiss counsel

is reviewed for an abuse of discretion. Childress v. State, 794 S.W.2d 119,

122 (Tex.App.—Houston [1st Dist.] 1990, pet. ref’d). An abuse of discretion

occurs if the trial court acts without reference to any guiding rules and

principles or acts arbitrarily or unreasonably. Montgomery v. State, 810

S.W.2d 372, 380 (Tex.Crim.App.1990); Tyler v. State, 137 S.W.3d 261, 266

(Tex.App.—Houston [1st Dist.] 2004, no pet.). Although an accused’s right

to counsel affords him a fair opportunity to secure counsel of his choosing,

the right to obtain counsel of one’s choice is neither unqualified nor

absolute. Childress, 794 S.W.2d at 121 (citations omitted). A defendant also

carries the burden of proving that he is entitled to a change of counsel. King

v. State, 511 S.W.2d 32, 34 (Tex.Crim.App.1974).1

              Significantly, the right of a defendant to choose an attorney

cannot be manipulated so as to obstruct the orderly procedure in the courts,

and it must be balanced with a trial court’s need for prompt and efficient

administration of justice. Childress, 794 S.W.2d at 121-22 For example, a


1
 See also James v. State, No. 01-06-00795-CR, 2007 WL 2214891 *3 (Tex.App.—
Houston [1st Dist.], Aug. 2, 2007, no pet.) (mem.opinion) (not designated publication).


                                          8
defendant does not have an absolute right to discharge his attorney where the

request is made only five days before trial is scheduled to begin, and the

record does not reflect any bad faith, insincerity, or disloyalty toward

defendant by defense counsel. See id. In the present case, there is no

evidence of any bad faith, insincerity, or disloyalty to Appellant by his trial

counsel.

             Appellant’s   only    complaint    to   the   trial   court—made

immediately before trial was set to begin—was that he “didn’t feel

comfortable going to trial with the court-appointed lawyer” (RR 3:7).

Appellant gave no other reason for wanting to discharge his attorney and

hire another. Appellant also told the court that his family was “talking” with

another lawyer and he felt sure they would be hiring that individual on the

same date, but no other evidence was presented to confirm this statement

(RR 3:6-7). Based on the evidence presented, the trial court did not abuse its

discretion in refusing to allow Appellant to discharge his court-appointed

lawyer on the day of trial. Therefore, Appellant’s point of error should be

overruled.




                                      9
      2)     The recording of Appellant’s accidental call to law
             enforcement was properly admitted.

             Appellant complains about the admission of a recording of a

conversation between Appellant and a third party, which was recorded by

law enforcement when he accidently called an undercover officer. During

the conversation, the Appellant was heard explaining his intent to rob the

undercover officer during a planned narcotics sale and steal the cocaine that

Appellant was allegedly going to purchase. Appellant argues this audio

recording of his private conversation was obtained in violation of his privacy

rights under the Fourth Amendment of the United States Constitution.

             A defendant has standing to challenge the admission of

evidence obtained by a government intrusion only if he had a legitimate

expectation of privacy in the place invaded. Villarreal v. State, 935 S.W.2d

134, 138 (Tex.Crim.App.1996). The accused also has the burden of proving

facts establishing a legitimate expectation of privacy. Id. To carry the

burden, the accused must prove (1) that by his conduct he exhibited an

actual subjective expectation of privacy, and (2) that circumstances existed

under which society was prepared to recognize his subjective expectation as

objectively reasonable. Id.; see also Smith v. Maryland, 442 U.S. 735, 740,

99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Ex Parte Moore, 395 S.W.3d 152,

158-59 (Tex.Crim.App.2013).


                                     10
            In considering whether the defendant has demonstrated an

objectively reasonable expectation of privacy, a court examines the totality

of the circumstances surrounding the search, including:

            … (1) whether the accused had a property or possessory
            interest in the place invaded; (2) whether he was
            legitimately in the place invaded; (3) whether he had
            complete dominion or control and the right to exclude
            others; (4) whether, before the intrusion, he took normal
            precautions customarily taken by those seeking privacy;
            (5) whether he put the place to some private use; and (6)
            whether his claim of privacy is consistent with historical
            notions of privacy.

Granados v. State, 85 S.W.3d 217, 223 (Tex.Crim.App.2002); Villareal, 935

S.W.3d at 138. This is a non-exhaustive list of factors, and no one factor is

dispositive. Granados, 85 S.W.3d at 223.

            The issue of whether a “subjective expectation of privacy” is

one that society recognizes as being reasonable is a question of law.

Villarreal, 935 S.W.2d at 138 n. 5; see also State v. Hardy, 963 S.W.2d 516,

523 (Tex.Crim.App.1997) (“proper focus, under the Fourth Amendment, is

upon American society as a whole, rather than a particular state or other

geographic subdivision.”). An appellate court “reviews a constitutional legal

ruling, such as whether a search or seizure governed by the Fourth

Amendment occurred in a particular case, under a de novo standard of

review.” Barfield v. State, 416 S.W.3d 743, 746 (Tex.App.—Houston [14th



                                     11
Dist.] 2013, no pet.) (citing Wall v. State, 184 S.W.3d 730, 742

(Tex.Crim.App.2006)).

                The question before the Court of Appeals here is whether the

Appellant had a reasonable expectation of privacy in a conversation with a

third party that was accidentally transmitted to law enforcement on

Appellant’s cellular telephone in what is commonly known as a “pocket” or

“butt dial”. This issue appears to be a matter of first impression in Texas,

and has had limited interpretation nationally. However, the U.S. Court of

Appeals for the 6th Circuit recently addressed the issue in Huff v. Spaw, No.

14-5123, 2015 WL 4430466 (6th Cir.) July 21, 2015) (not released for

publication).

      a)        Appellant did not have a reasonable expectation of privacy
                in the accidental call.

                Because Appellant placed the accidental call to Inv. Salinas on

his own device, he exposed his statements to law enforcement and,

therefore, failed to exhibit an expectation of privacy with respect to those

statements. Such exposure need not be deliberate, and can be the inadvertent

product of neglect that vitiates any privacy interest protected by the Fourth

Amendment. See Huff, 2015 WL 4430466 *6 (citing California v. Ciraolo,

476 U.S. 207, 214-15, 106 S.Ct. 1809, 90 L.Ed. 210 (1980) (police who

viewed inside defendant’s fenced in property from a location open to the


                                       12
public did not violate defendant’s reasonable expectation of privacy) and

United States v. Fisch, 474 F2d 1071, 1077 (9th Cir.), cert denied, 412 U.S.

921, 93 S.Ct. 2742, 37 L.Ed.2d 148 (1973) (no expectation of privacy to

statements “audible to the naked ear” of police in adjoining hotel room)).

             In Huff, the Sixth Federal Circuit held there is no reasonable

expectation of privacy in cellular phone calls accidently made to a third

party. In its discussion of an inadvertent cellular phone call—commonly

known as the case of a “pocket” or “butt dial”—which was at the heart of a

civil claim under the federal wire tap statute,2 the court held,

             … a person who knowingly operates a device that is
             capable of inadvertently exposing his conversations to
             third party listeners and fails to take simple precautions
             to prevent such exposure does not have a reasonable
             expectation of privacy with respect to the statements that
             are exposed to an outsider by inadvertent operation of
             that device.

Huff, 2015 WL 4430466 *7. In support of its decision, the court relied on the

plain-view doctrine, reasoning that if a homeowner neglects to cover a

window with drapes, he would lose his reasonable expectation of privacy

with respect to a viewer looking into the window from outside of his

property. Id. At *6 (citing Wright and Ciraolo, supra). The court concluded

the same reasoning would apply to visual and auditory information. Id.

2
  See 18 U.S.C. § 2510, et seq. (2002) (Chapter 119. Wire and Electronic
Communications Interception and Interception of Oral Communications).


                                       13
             In further support of its holding, the court in Huff considered a

Ninth Circuit case in which law enforcement discovered child pornography

on the defendant’s computer via a peer-to-peer file-sharing program called

“LimeWire,” which the defendant had installed on his computer. See Huff,

2015 WL 4430466 *6 (citing United States v. Ganoe, 538 F.3d 1117 (9th Cir.

2008)). The Sixth Circuit noted that the defendant’s program in Ganoe had a

method to turn off the file-sharing feature, but the defendant neglected to do

so. Ultimately, the 9th Circuit held, “[t]o argue that Ganoe lacked the

technical savvy or good sense to configure LimeWire to prevent access to

his pornographic files is like saying he did not know enough to close his

drapes.” Ganoe, 538 F.3d at 1127.

             Similarly recognizing that a person must have a legitimate

expectation of privacy to claim the protection of the Fourth Amendment, the

Court of Criminal Appeals has held when an officer observes contraband

“from a lawful vantage point, there has been no invasion of a legitimate

expectation of privacy and thus no ‘search’ within the meaning of the Fourth

Amendment—or at least no search independent of the initial intrusion that

gave the officers their vantage point.” Walter v. State, 28 S.W.3d 538, 541–

42 (Tex.Crim.App.2000) (quoting Minnesota v. Dickerson, 508 U.S. 366,

375 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993)); see Horton v.



                                     14
California, 496 U.S. 128, 133-35, 110 S.Ct. 2301, 2307, 110 L.Ed.2d 112

(1990) (noting that, if an article is in plain view, neither its observation nor

its seizure involves any invasion of privacy); see also Katz v. United States,

389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (“What a person

knowingly exposes to the public, even in his own home or office, is not a

subject of Fourth Amendment protection”); Id. at 361 (Harlan, J.,

concurring) (“Thus a man’s home is, for most purposes, a place where he

expects privacy, but objects, activities, or statements that he exposes to the

‘plain view’ of outsiders are not ‘protected’ because no intention to keep

them to himself has been exhibited.”).3

              In the present case, Appellant cannot have a reasonable

expectation of privacy in a conversation that was transmitted inadvertently

to law enforcement due to his own carelessness.4 The effect is the same as if

Appellant had participated in the same private conversation at his residence,

in front of an open window, and which was audible to investigators. An

3
  See also McCall v. State, 540 S.W.2d 717, 720 (Tex.Crim.App.1976) (“What a person
knowingly exposes to the public is not subject to Fourth Amendment protection”); see
also, e.g., Duhig v. State, 171 S.W.3d 631, 635 (Tex.App.—Houston [14th Dist.] 2005,
pet. ref’d) (no impermissible, warrantless search when he looked through the window on
appellant’s front door and observed marijuana and drug paraphernalia on the coffee table)
and Wilkerson v. State, 644 S.W.2d 911, 912 (Tex.App.—Fort Worth 1983, pet. ref’d)
(holding defendant could have no reasonable expectation of privacy in backyard
marijuana plants visible from the street).
4
 See TEX. PENAL CODE ANN. § 1.07(a)(1) (Vernon 2011) (An “act” “means a bodily
movement, whether voluntary or involuntary, and includes speech.”).


                                           15
accused does not have a privacy interest protected by the Fourth Amendment

when that privacy is surrendered by a defendant’s carelessness or neglect.

The facts of this case do not demonstrate the Appellant had a subjective

expectation of privacy that society is prepared to recognize as objectively

reasonable—and neither should the Court of Appeals. Accordingly, the

admission of Appellant’s recorded conversation was not error, and his

complaint should be overruled.

       b)     The investigator’s recording of Appellant’s conversation
              did not violate the Texas wiretap statute.

              Appellant further complains the recording of his accidental call

to Inv. Salinas violated Texas law and, therefore, should have been

excluded. Under the penal code, it is an offense when a person “intentionally

intercepts, endeavors to intercept, or procures another person to intercept or

endeavor to intercept a wire, oral, or electronic communication.” TEX.

PENAL CODE ANN. § 16.02(b)(1) (Vernon 2011); TEX. CODE CRIM. PROC.

ANN. art. 18.20 (Vernon 2015).5 Such evidence, if obtained in violation of

state law, may not be admitted against the accused in a criminal case. TEX.


5
   Penal Code section 16.02—herein, the “Texas Wiretap Statute”—incorporates
definitions from Article 18.20 of the Texas Code of Criminal Procedure. TEX. PENAL
CODE ANN. § 16.02(a) (Vernon 2011). Appellant argues that, because the recording of the
telephone conversations “constituted an illegal intercept of a wire communication” as
described by TEX. CODE CRIM. PROC. art. 18.20, § 1(3), the content of the conversation
recorded by investigators was obtained in violation of TEX. PENAL CODE § 16.02. The
recording was, therefore, inadmissible under TEX. CODE CRIM. PROC. art. 38.23.


                                          16
CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2011). Because article 38.23 is

mandatory, a judge has no discretion in ruling on the exclusion of evidence

if the evidence was obtained in violation of a state statute or constitutional

provision. Polk v. State, 738 S .W.2d 274, 276 (Tex.Crim.App.1987).

             “For purposes of the wiretap statute, an ‘oral communication’ is

one “uttered by a person exhibiting an expectation that the communication is

not subject to interception under circumstances justifying that expectation.”

Allen v. State, No. 08–13–00302–CR, 2015 WL 2183526 *2 (Tex.App.—El

Paso, May 8, 2015, no pet.) (not released for publication) (emphasis

original) (citing TEX. PENAL CODE § 16.02(a); and TEX. CODE CRIM. PROC.

ANN. art. 18.20, § l(2)). The “threshold question for purposes of the wiretap

statute, therefore, is whether the [defendant] had a reasonable expectation of

privacy under the circumstances.” See id.

             Because the authority cited above demonstrates that Appellant

did not have a reasonable expectation of privacy in his accidental call (or

“butt dial”) to Inv. Salinas, the Court of Appeals should conclude the call

was not an “oral communication” covered by Section 16.02 of the Texas

Penal Code—thus, the investigator did not violate the statute by recording

Appellant’s conversation. For this reason, Appellant’s complaint that the

recording in dispute was illegally obtained should be overruled.



                                     17
      3)     Appellant was not prejudiced by any alleged error by his
             trial counsel.

             In his final issue, Appellant raises an ineffective counsel claim

in an exercise of caution should the Court of Appeals find that his attorney

failed to preserve the Fourth Amendment challenge by proper objection to

the State’s offer of the recording of his accidental cellular call to Inv.

Salinas. To prevail on this claim, Appellant must prove by a preponderance

of the evidence deficient performance and prejudice. Busby v. State, 990

S.W.2d 263, 268 (Tex.Crim.App.1999). In evaluating such a complaint, an

appellate court looks to the totality of the representation and strongly

presumes counsel’s competence. Id.; Moore v. State, 694 S.W.2d 528, 531

(Tex.Crim.App.1985). An allegation of ineffectiveness must also be firmly

founded in the record, and without the required showing of deficient

performance or sufficient prejudice, the presumption of reasonable counsel

will not be overcome. Thompson v. State, 9 S.W.3d 808, 814

(Tex.Crim.App.1999).6

             Because Inv. Salina’s recording of Appellant’s accidental call

does not run afoul of the Fourth Amendment, the failure of defense counsel

to preserve this particular objection cannot form the basis of an ineffective


6
 For purposes of this appeal, the State does not argue trial counsel failed to
preserve error on this point.

                                     18
assistance of counsel claim. See Bourque v. State, 156 S.W.3d 675, 677

(Tex.App.—Dallas 2005, no pet.) (counsel not ineffective in failing to object

to unobjectionable documents); Thacker v. State, 999 S.W.2d 56, 67

(Tex.App.—Houston [14th Dist.] 1999, pet. ref’d) (counsel not ineffective in

failing to make meritless objection).

             Furthermore, the record is silent with respect to why trial

counsel did not raise a Fourth Amendment challenge to the recording, and

the Court of Appeals should not speculate on what her trial strategy might

have been by not objecting. See Jackson v. State, 877 S.W.2d 768, 771

(Tex.Crim.App.1994) (en banc) (silent record contained no evidence to rebut

presumption of reasonable professional judgment by trial counsel); see also,

e.g., Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App.2003) (silent

record will not support ineffective assistance of counsel claim); Ex parte

Okere, 56 S.W.3d 846, 856-57 (Tex.App.—Fort Worth 2001, pet. ref’d)

(overruling ineffective assistance claim where record silent as to why

counsel failed to contact or subpoena witnesses). Thus, Appellant’s

ineffective assistance claim should be overruled.




                                        19
      4)     Appellant retained the right to Appeal for both guilt-
             innocence and the punishment phases of trial.

             Shortly before a jury panel was scheduled to be brought into

court, Appellant entered a plea of “guilty” to all charges (RR 3:9) (CR

000020-21). The plea was made without a recommendation from the State

on punishment. Instead, the parties agreed, both orally and in writing, that

the trial court would determine punishment and that there would be no pre-

sentence investigation ordered (CR 000023). Upon completion of trial, the

court limited Appellant’s right to appeal as to punishment only, and prepared

a certification of Appellant’s right to appeal in line with this finding.

             In criminal cases, a trial court is required to enter a certification

of a defendant’s right of appeal in every case that it enters a judgment of

guilt or other appealable order. See TEX. R. APP. P. 25.2(a)(2). Rule

25.2(a)(2) limits an appellate court’s jurisdiction over appeals from plea-

bargained convictions. However, these limitations do not apply to

convictions from open pleas of guilty. Dears v. State, 154 S.W.3d 610, 613

(Tex.Crim.App.2005).

             A defendant in a noncapital case may waive any rights secured

him by law. See TEX. CODE CRIM. PROC. ANN. art. 1.14(a) (Vernon 2005).

However, in the absence of a plea agreement regarding sentencing, a pre-

sentence waiver of the right to appeal is unenforceable. See Smith v. State,


                                       20
91 S.W.3d 407, 408-09 (Tex.App.—Texarkana 2002, no pet.) (citing Ex

parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977)). The rule stems

from a principle that if a defendant does not know what his sentence will be

at the time he enters his plea, any waiver of the right to appeal cannot be

made knowingly, voluntarily, and intelligently. Thomas, 545 S.W.2d at 470.

               In the event that a defendant enters a waiver of his right to

appeal before he is aware of the consequences of his plea, the waiver is

considered invalid. Tufele v. State, 130 S.W.3d 267, 270 (Tex.App.—

Houston [14th Dist.] 2004, no pet.). In the present case, the trial court’s

certification limits Appellant’s right of appeal to the punishment phase only

(Apx. Ex. 1). Under the facts presented, however, the State agrees that the

jurisdiction of the Court of Appeals extends to all points of error raised by

Appellant.7




7
  A court of appeals may review the record to determine whether the trial court’s
certification of Appellant’s right of appeal is defective and, if necessary, to obtain another
certification from the trial court. See, e.g., Trevino v. State, 2007 WL 2806659 *2
(Tex.App.—Amarillo, Sep. 27, 2007, no pet.) (citing Dears, 154 S.W.3d at 614-15; TEX.
R. APP. P. 34.5(c); 37.1). A defective certification includes a certification that is correct in
form, but, when compared with the record before the court, proves to be inaccurate. Id.;
Dears, 154 S.W.3d at 614. If it cannot be determined from the record whether the trial
court’s certification of Appellant’s right to appeal is accurate, and thus the Court cannot
determine its jurisdiction over the appeal, the Court can choose to abate and remand this
case to the trial court for re-certification of appellant’s right of appeal. See TEX. R. APP.
P. 34.5(c), 44.3, 44.4; Dears, 154 S.W.3d at 614.


                                              21
                               CONCLUSION

             The trial court was within its discretion to deny Appellant’s

request to change attorneys on the day of trial. Nothing indicated any

apparent conflict between Appellant and his court-appointed attorney, and

nothing supported Appellant’s testimony that he might retain other counsel

in the near future. Further, Appellant had no reasonable expectation of

privacy under the Fourth Amendment in his accidental (or “butt dial”) to law

enforcement—thus, the recording of this telephone call was properly

admitted and his trial counsel cannot be considered ineffective if the Court

of Appeals finds the Fourth Amendment challenge was not preserved for

appellate review. Finally, although the trial court may have limited

Appellant’s right of appeal to the punishment phase of trial, review of the

record by this Court should indicate that its jurisdiction extends to any points

of error raised regarding the guilt-innocence phase of trial as well.




                                      22
                                     PRAYER

             For these reasons, after considering all issues raised, the State

asks the Court of Appeals to overrule the Appellant’s issues on appeal and

affirm the trial court’s judgment.



                               Respectfully submitted,


                               /s/ Jeri Yenne
                               _____________________________________
                               Jeri Yenne
                               State Bar No. 04240950
                               Brazoria County Criminal District Attorney


                               /s/ Trey D. Picard
                               _____________________________________
                               Trey D. Picard
                               State Bar No. 24027742
                               Assistant Criminal District Attorney

                               111 East Locust St., Suite 408A
                               Angleton, Texas 77515
                               (979) 864-1233
                               (979) 864-1712 Fax
                               treyp@brazoria-county.com

                               ATTORNEY FOR THE APPELLEE,
                               THE STATE OF TEXAS




                                       23
                       CERTIFICATE OF SERVICE

             As required by Texas Rule of Appellate Procedure 6.3 and

9.5(b), (d), (e), I certify that I have served this document on all other parties,

which are listed below, on August 10, 2015:

Keith G. Allen                      By:
State Bar No. 01043550                             personal delivery
Law Offices of Keith G. Allen, PLLC
2360 CR 94, Suite 106                              mail
Pearland, Texas 77584                              commercial delivery service
(832) 230-0075
                                                   electronic delivery / fax
(832) 413-5896 Fax
Keith@KGAllenLaw.com

Attorney for the Appellant


                                        /s/ Trey D. Picard
                                        _____________________________
                                        Trey D. Picard
                                        Assistant Criminal District Attorney




                                       24
             CERTIFICATE OF RULE 9.4 COMPLIANCE

            I certify that this electronically filed document complies with

Rule 9.4 of the Texas Rules of Appellate Procedure and that the number of

words is: 5,326.


                                     /s/ Trey D. Picard
                                     _____________________________
                                     Trey D. Picard
                                     Assistant Criminal District Attorney




                                   25
                                    APPENDIX

Trial Court’s Certification of Defendant’s Right to Appeal ...........................1




                                          26
000028
