             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                                        NO. PD-479-07

                              DARRYL MOSELEY, Appellant

                                                v.

                                  THE STATE OF TEXAS

                   ON PETITION FOR DISCRETIONARY REVIEW
                    FROM THE SEVENTH COURT OF APPEALS
                               BEXAR COUNTY

               J OHNSON, J., delivered the opinion for a unanimous Court.

                                         OPINION

       A jury convicted appellant of murder and assessed his sentence at life in prison. The court

of appeals affirmed the conviction and sentence. Moseley v. State, 223 S.W.3d 593 (Tex. App.–

Amarillo 2007). We granted appellant’s sole ground for review: “The Court of Appeals erred in

finding that the recording of Appellant’s telephone conversations made at the police station was not

an intercepted wire communication, and therefore was admissible against Appellant.”

       San Antonio police officers arrested appellant after finding him in possession of the

complainant’s car and discovering her body in the trunk. At the homicide division of the police

department, detectives questioned appellant in an interview room. That interrogation and the periods
                                                                                                                   2

of time during which appellant was left alone and allowed to make telephone calls were recorded

on a digital video disc (DVD). Appellant unsuccessfully sought to prevent admission of that DVD

into evidence at trial. On appeal, appellant challenged the trial court’s denial of his suppression

motion. He contended that the trial court erred when it overruled his objection that the recording of

his telephone conversations in the interview room, during which he admitted the offense and elicited

help in creating an alibi, was made illegally because it constituted an interception1 of a wire

communication,2 in violation of TEX . PENAL CODE § 16.02,3 and that the conversations were

therefore inadmissible under TEX . CODE CRIM . PROC. art. 18.20, § 2(a)(1).4 We affirm the judgment

of the court of appeals.

                                                    The Appeal

       The court of appeals determined that, although appellant’s statements were transmitted to a

third party via a wire communication, the wire communication was not offered into evidence. The


       1
           Article 18.20, § 1(3).

       “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.

       2
           Article 18.20, § 1(1).

       “W ire communication” means an aural transfer made in whole or in part through the use of facilities
       for the transmission of communications by the aid of wire, cable, or other like connection between
       the point of origin and the point of reception, including the use of such a connection in a switching
       station, furnished or operated by a person authorized to engage in providing or operating the
       facilities for the transmission of communications as a communications carrier. The term includes
       the electronic storage of a wire communication.

       3
           T EX . P EN AL C O D E § 16.02 provides that interception of a wire or oral communication is a crime.

       4
           Sec. 2. Prohibition of Use as Evidence on Intercepted Communications.

       (a) The contents of an intercepted communication and evidence derived from an intercepted
       communication may be received in evidence in any trial, hearing, or other proceeding in or before
       any court, . . . of this state . . . unless:
       (1) the communication was intercepted in violation of this article, Section 16.02, Penal Code, or
       federal law; . . . .
                                                                                                                3

evidence offered was the DVD, a visual and aural recording of appellant’s words spoken in the

interview room that did not constitute a “wire communication.” Moseley v. State, 223 S.W.3d 593,

599 (Tex. App.–Amarillo 2007). The court of appeals also held that appellant’s words did not

constitute an “oral communication” under TEX . CODE CRIM . PROC. art. 18.20, § 1(2),5 because “the

communication itself was not made under circumstances that justify an expectation that the

communication would not be intercepted and is, therefore, not an ‘oral communication’ within” the

statutory definition of TEX . PENAL CODE § 16.02. Moseley, 223 S.W.3d at 599.6 Because the court

of appeals found that appellant’s words were neither a wire communication nor an oral

communication, it declined to decide whether the recording of appellant’s side of the telephone

conversation constituted an “interception” of a wire or oral communication for the purposes of TEX .

PENAL CODE § 16.02. Id.

                                                        Facts

       Two detectives testified about the interrogation at both the pre-trial suppression hearing and

the trial. The record reflects that appellant was interrogated in a small interview room in the

homicide office at the police station. The entire interrogation, including the periods of time during

which appellant was alone in the room, was recorded on the contested DVD. Signs in the area of

the interview room stated that interviews were subject to recording, and appellant admitted near the

end of the DVD that he was aware that he was subject to being recorded.



       5
           Article 18.20, § 1(2)

       “Oral communication” means an oral communication uttered by a person exhibiting an expectation
       that the communication is not subject to interception under circumstances justifying that expectation.
       The term does not include an electronic communication.

       6
           Appellant does not challenge that finding.
                                                                                                    4

       Detective Slaughter testified to the procedures used to record interrogations in the police

interview room: a DVD monitor and DVD recorder are set up in another room, and a pin-hole

camera in the interview room is used to record interrogations. He also testified that the DVD

recorded only what could be seen and heard in the interview room and that, if anyone were talking

on the telephone in the room, only the words of the person speaking in the room would be heard.

       During the course of the interrogation, appellant was left alone for a few minutes and was

offered the use of a telephone that was in the room. While he was alone, appellant made multiple

telephone calls. What appellant said while talking on the telephone was recorded on the DVD, but

the responses of the person to whom appellant was speaking on the telephone, which were “wire

communications,” could not be heard and were not recorded.

                                          The Arguments

       Appellant’s sole ground for review asserts that the court of appeals erred in finding that the

recording of these telephone conversations was not an intercepted wire communication and was thus

admissible against him. 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 conversations recorded on the DVD was obtained in violation

of TEX . PENAL CODE § 16.02. The DVD was, therefore, inadmissible under TEX . CODE CRIM . PROC.

art. 38.23, which provides that no evidence obtained in violation of the laws of Texas shall be

admitted into evidence against the accused on the trial of any criminal case. He asserts that, because

he did not know he was being recorded, the consent exception to the wiretap law does not apply and

that the law-enforcement exception does not apply because the San Antonio Police Department did

not make known to him any stated policy about monitoring all outgoing calls made from the police
                                                                                                                  5

station.7

        Appellant concedes that, while “he was not in a jail or prison cell when he made these calls,

he was certainly in police custody” and “therefore had no expectation of privacy.” (Appellant’s

Opening Brief, p. 18.) Nevertheless, he compares Article 18.20’s definition of wire communication

to its definition of oral communication and points out that the definition of wire communication

differs in that it does not speak to an expectation, justifiable or otherwise, that the communication

not be subject to interception, and thus an expectation of privacy, or lack thereof, is not dispositive.

        Appellant argues that “[t]he more reasoned and reasonable interpretation of the statute looks

to the literal language of the law.” (Appellant’s Opening Brief, p. 18.) He relies on the literal

language of article 18.20, § 1(1), which defines wire communication as “an aural transfer made . .

. through the use of facilities for the transmission of communication by . . . wire . . ..” He asserts that

his telephone calls, which undeniably went through telephone wires, were wire communications,

“even though the parts of the conversations contributed by the persons on the other end of the line

were not captured by the audio portion of the DVD.” (Appellant’s Opening Brief, p. 19.)

        Appellant also points out that, pursuant to Article 18.20, § 1(3), an “intercept” is the “aural

. . . acquisition of the contents of a wire . . . communication through the use of an electronic,

mechanical, or other device,” and that “the contents of [his] end of these wire communications were

captured by the DVD recorder, an electronic device.” (Appellant’s Opening Brief, p. 19.)(emphasis

in original.) Appellant also seems to argue that, since the DVD recorder was an electronic device,



        7
          Appellant directs us to Tex. Penal Code § 16.02(c)(3)(A):
        “It is an affirmative defense to prosecution under Subsection (b) that: . . . (3) a person acting under
        color of law intercepts: (A) a wire, oral, or electronic communication, if the person is a party to the
        communication or if one of the parties to the communication has given prior consent to the
        interception; . . . .”
                                                                                                                     6

it “intercepted” the events that occurred in the interview room, including his side of the telephone

conversation.8

         Appellant urges us to consider Lane v. Allstate Ins. Co., 969 P.2d 938, 940 (Nev. 1998), in

which the Nevada Supreme Court interpreted a state statute that included definitions of “intercept”

and “wire communication” that are similar to the definitions in the Texas statute. The Lane court

held that “[t]he taping of a telephone conversation is clearly the aural acquisition of the contents of

a wire communication through the use of a mechanical device or receiving equipment.” However,

Lane was a civil suit that involved the recording, by the plaintiff, of both parts of the plaintiff’s

telephone conversations, rather than the recording of only what was said by a single person in an

interview room, as in the instant cause. Id. at 941.

         Appellant also cites United States v. Axselle, 604 F.2d 1330, 1334 (10th Cir. 1979), which

held that, under the federal statute, a unrecorded telephone conversation overheard by a motel

switchboard operator was an intercepted wire communication. But again, this differs significantly

from the instant cause in that it involved eavesdropping on an entire telephone conversation that was

admittedly transmitted over wires and that was in fact intercepted, rather than one-half of a

conversation–one person speaking on the telephone in an interview room.

         Appellant points to Detective Slaughter’s comment, heard on the DVD, in which he told

appellant that telephone calls were being “tapped” and asserts that the comment indicates that “the

police listened in to the calls and perhaps recorded them.” (Appellant’s Opening Brief, p. 20.)

However, appellant failed to cross-examine Detective Slaughter about the meaning of the “tapped”

         8
            Because it found that the DVD constituted neither a wire communication nor an oral communication, the
court of appeals explicitly declined to decide whether the recording of appellant’s side of the telephone conversation
constituted an interception of that communication for the purposes of § 16.02, Moseley at 599, and appellant’s sole
ground does not take issue with or seek review of the court of appeals’s decision not to rule.
                                                                                                  7

comment, and there was no explanation of the comment. At trial, when appellant conducted a voir

dire examination of Detective Slaughter and asked about “the method by which you’re able to hear

that telephone conversation,” Slaughter responded,

       All – all you can hear is the actual person that’s talking on one end. You can’t hear
       the other – other end of the conversation. You just hear what the person’s saying in
       the interview room.

       We have reviewed the DVD and find that only appellant’s side of the telephone conversation

could be heard and that the words of the persons to whom appellant was speaking were not recorded.

We find no evidence in the record that there was any recording of the telephone conversation, other

than on the DVD. We conclude that the comment about the telephones being “tapped” is not

evidence that the police were actually listening to or recording both sides of appellant’s telephone

conversations by the use of some undisclosed electronic or wire device. In any event, the contents

of any such intercepted wire communication were not offered or admitted into evidence at trial.

       The state argues that the court of appeals correctly decided that the DVD recording of

appellant in the interview room, which captured and recorded statements made by him while he was

speaking on a telephone, was not a wire communication. It asserts that appellant’s statements in the

interview room were ordinary, audible statements when they were recorded by the DVD, and that

while the telephone into which appellant was speaking transformed what he said into a form that

could be, and was, sent over a wire–making that part of appellant’s vocalizations a wire

communication–the DVD recording itself did not contain any part of the wire communication.

                                             Analysis

       Several cases from other jurisdictions have interpreted similar factual situations under an

analogous federal or state statute. United States v. Carroll, 332 F.Supp. 1299, 1300 (D.D.C. 1971),
                                                                                                   8

involved the “overhearing of a person talking in an adjacent hotel room whose statements to others

in the room and over the telephone were recorded on a tape recorder as the voice was picked up

coming through a closed connecting door.” The district court held “that the overhearing and

recording of one end of a telephone conversation without the actual interception of a communication

passing through the wires, was not intended to be included within the definition of the term ‘wire

communication[.]’” Id. at 1301. The court noted that “[o]nly one side of the telephone calls was

recorded and no device was affixed to any wire or used to pick up any talk from a wire.” Id. at 1300.

Thus, “[n]o interception of a wire communication [was] involved.” Id. at 1301.

       In Siripongs v. Calderon, 35 F.3d 1308, 1319 (9th Cir. 1994), an officer used a hidden

recorder to record an inmate’s telephone call from the jail. The court held that this was not an

intercepted wire communication within the meaning of the federal statute because police recorded

only what Siripongs said into the mouthpiece, not what was transmitted over the wire. Id. at 1320.

       A California case, People v. Suttle, 90 Cal.App.3d 572 (Cal. Ct. App. 1979), presents

circumstances similar to those we consider here. Two arrested defendants were placed in separate

cells, separated by a two- or three-foot corridor. The area was equipped with a hidden listening

device connected to a tape recorder. Id. at 576. One of the defendants was permitted to call his

mother using a portable telephone, which was wheeled to a position outside his cell. His side of the

conversation with his mother was recorded by the tape recorder that was connected to the listening

device, as was the voice of the other defendant, heard in the background volunteering information.

Id. When Suttle challenged the admissibility of the recording of his telephone conversation with his

mother, the court of appeal held that one-half of a telephone conversation is not a wire

communication. Id. at 579. It added that “[a]lthough the speaker’s voice is carried over the
                                                                                                    9

telephone wire, it also escapes into the area surrounding the speaker for some distance and can be

overheard without resort to interception of it over the wire.” Id.

       We hold that words that are spoken into a telephone receiver and that can also be heard in

the area surrounding the speaker without electronic assistance are not “wire communications” as

defined in Article 18.20, § 1(1). Any recording of those words merely memorializes what could be

seen and heard in the interview room.

                                            Conclusion

       The record does not support a finding that there was any recording made by tapping into the

telephone wires. The record does show that the only recorded communication offered into evidence

was the appellant’s half of a telephone conversation–a communication that was transmitted over a

telephone line, but also “escaped into the area surrounding” appellant and could “be overheard

without resort to interception of it over the wire.” We conclude that the court of appeals did not err

in determining that the appellant’s telephone conversations were not wire communications; the

evidence offered, the DVD, “was merely a recording of appellant’s side of the conversation” and did

not intercept any portion of the wire communication.

       We overrule appellant’s ground for review and affirm the judgment of the court of appeals.



Delivered: April 30, 2008
Publish
