Elmer Darcell Earl v. State ( 1998 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-97-00229-CR



Elmer Darcell Earl, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT NO. 96-196-K26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING

The jury found appellant guilty on both counts of a two-count indictment charging appellant with the offense of indecency with a child. See Tex. Penal Code Ann. § 21.11 (West 1994). The trial court assessed punishment, enhanced by two prior felony convictions, at confinement for life. In a single point of error, appellant contends the trial court erred in admitting an audio taped conversation between appellant and the complainant. We will overrule appellant's point of error and affirm the judgment of the trial court.

R.B. (the 15-year-old complainant) had sexual intercourse with appellant, age 34, on four different occasions beginning in November 1995 and concluding at the end of February 1996. In addition, R.B. testified about instances of sexual contact that would come within the proscribed conduct in section 21.11. R.B.'s introduction to appellant occurred when appellant was introduced to R.B.'s mother as a "mentor" for R.B.'s younger brother. Despite R.B.'s efforts to end the relationship, R.B. stated that she found it necessary to ask her father to accompany her to the school bus stop because appellant had been "harassing me and threatening me." Police were called as a result of an incident presumably between R.B., her father, and appellant. Subsequently, on March 20, 1996, R.B. received a note at school requesting that she call her father at a number she recognized as appellant's telephone number.

After R.B. showed the note to the school's police officer and to the principal, Round Rock police investigator Helen Keesee-Kello went to Round Rock High School to talk to R.B. They decided that R.B. should call appellant, and at Keesee-Kello's suggestion, tell appellant that she was pregnant. Keesee-Kello related that she wanted to tape the conversation in order to backup the facts R.B. had related to her. Accompanied by R.B., an assistant principal, and an investigator, a recording device in the assistant principal's office was used. The tape included a number of incriminating statements by appellant, i.e., appellant was HIV positive and appellant's inquiry whether R.B. wanted appellant to tell her parents.

Appellant contends that the trial court erred in admitting the audiotape of the telephone conversation between appellant and R.B. in violation of article 18.20 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 18.20 (West Supp. 1998). Appellant recognizes that numerous courts of appeals have held that a consensual taping at one end of a conversation is not an interception for the purposes of article 18.20. See Esterline v. State, 707 S.W.2d 171 (Tex. App.--Corpus Christi 1986, pet. ref'd); Beck v. State, 741 S.W.2d 516, 524 (Tex. App.--Corpus Christi 1987, pet. ref'd); McDuffie v. State, 854 S.W.2d 195, 205 (Tex. App.--Beaumont 1993, pet ref'd); Hall v. State, 862 S.W.2d 710, 713 (Tex. App.--Beaumont 1993, no pet.).

In Esterline, Doughtie (the informer) entered into an agreement with police that he would consent to the taping of his conversation with the defendant supplier of marihuana in exchange for no charges being filed against his wife. 707 S.W.2d at 173. The defendant contended that article 18.20 required authorization of certain judges to permit the wiretaps requested by the law enforcement officers. Id. Since Esterline was the first case to consider this issue, and explored the question in greater depth than subsequent opinions, we quote the relevant portions of that opinion:

The relevant provisions of Article 18.20 [West 1986] are:

Section 1. In this article:

(1) "Wire communication" means a communication 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 furnished or operated by a person engaged as a common carrier in providing or operating the facilities for the transmission of communications.

(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.

(3) "Intercept" means the aural acquisition of the contents of a wire or oral communication through the use of an electronic, mechanical, or other device.

(4) "Electronic, mechanical, or other device" means a device or apparatus primarily designed or used for the nonconsensual interception of wire or oral communications. [Emphasis added.]

Section 2. The contents of an intercepted communication and evidence derived from an intercepted communication may not be received in evidence in any trial if the disclosure of that information would be in violation of this article.

Section 1(4) provides that the statute applies only to nonconsensual communications. Since Doughtie consented to the taping of his conversations with appellant, a court order was not required in order for the tape to be admissible. In other words, the statute simply does not apply.

In so holding, we reject appellant's theory that the taping was nonconsensual since appellant did not agree to it; when appellant talked to Doughtie, he took the risk that Doughtie would repeat or record their conversation. Additionally, since the testimony of Doughtie to his conversation with appellant was clearly admissible, it seems incongruous to interpret the statute to prohibit the use of the taped conversation of the witness Doughtie and appellant gives Doughtie's consent and knowledge of the taping. The statements of appellant on the tape were clearly more reliable than the witnesses' admissible recounting of appellant's statements. If the statute required both parties to consent it could have so provided. The complained of recording was exactly what it was; i.e., a consensual taping or recording at one end of the communication not an interception.

Id. at 173-74 (emphasis in original) (internal citations omitted).

The court of criminal appeals adopted the reasoning of United States v. White, 401 U.S. 745 (1967) in rejecting a constitutional challenge to a government agent recording his conversation with the defendant. See Rovinsky v. State, 605 S.W.2d 578, 582 (Tex. Crim. App. 1980). Rovinsky followed the White rationale that there is no difference between a government agent immediately reporting and transcribing his conversation with a defendant and the agent recording the conversation with electronic equipment. Id.

We are not persuaded by appellant's argument that Esterline was wrongly decided, nor do we agree with his contention that later amendments to article 18.20 require a different result. Appellant first notes that subsequent to Esterline, in 1989, article 18.20, section 1(4) was broadened to include any device that may be used for the nonconsensual interception of "wire, oral, or electronic communications." Section 1(4) was further amended to state that the term "electronic, mechanical, or other device" does not include a telephone or telegraph instrument, despite such an instrument's potential use for nonconsensual interceptions. Act of May 28, 1989, 71st Leg., R.S., ch. 1166, § 2, 1989 Tex. Gen. Laws 4783, 4784 (Tex. Code Crim. Proc. Ann. art. 18.20, § 1(4) (West Supp. 1998)). We do not agree with appellant's argument that this 1989 amendment resulted in the necessity of judicial authorization for the taping of consensual communications. We note that McDuffie and Hall continued to follow Esterline after this amendment.

Appellant also urges that a 1997 amendment to article 18.20 is evidence that the legislature intended for article 18.20 to be applied to consensual interceptions prior to that date. In that year, section 17 of article 18.20 was amended to provide that the statute does not apply to conduct "described as an affirmative defense under Section 16.02(c), Penal Code." Act of June 1, 1997, 75th Leg., R.S., ch. 1051, § 4, 1997 Tex. Gen. Laws 4005, 4007 (Tex. Code Crim. Proc. Ann. art. 18.20, § 17 (West Supp. 1998)). Penal Code section 16.02 defines the offense of unlawful interception of communications. Tex. Penal Code Ann. § 16.02 (West 1994 & Supp. 1998). Section 16.02(c)(3) provides that it is an affirmative defense that one party to the communication has given prior consent to the interception. Appellant notes that before the 1997 amendment, only the conduct described by Penal Code section 16.02(c)(5) (relating to interceptions in life-threatening situations) was expressly exempted from article 18.20. We believe that the 1997 amendment merely conformed article 18.20 to existing case law and should not be read as a legislative disapproval of that case law.

Appellant also contends that it was not shown by clear and convincing evidence that R.B. voluntarily consented to the taping of her conversation with appellant. Assuming that there was no express consent, the evidence overwhelmingly shows implied voluntary consent. R.B. had tried to break off the affair and had enlisted the help of her father to prevent being contacted by appellant when she walked to the school bus. She exhibited appellant's note with its fraudulent representation to the school officer and the principal. She worked with Keesee-Kello relative to the details of the call she would make to appellant. R.B. made the call to appellant from the principal's office where taping equipment was found for recording. We hold that the trial court did not abuse its discretion in admitting the call. Appellant's point of error is overruled.

The judgment of the trial court is affirmed.

Tom G. Davis, Justice

Before Chief Justice Yeakel, Justices Aboussie and Davis^*

Affirmed

Filed: September 11, 1998

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

White, 401 U.S. 745 (1967) in rejecting a constitutional challenge to a government agent recording his conversation with the defendant. See Rovinsky v. State, 605 S.W.2d 578, 582 (Tex. Crim. App. 1980). Rovinsky followed the White rationale that there is no difference between a government agent immediately reporting and transcribing his conversation with a defendant and the agent recording the conversation with electronic equipment. Id.

We are not persuaded by appellant's argument that Esterline was wrongly decided, nor do we agree with his contention that later amendments to article 18.20 require a different result. Appellant first notes that subsequent to Esterline, in 1989, article 18.20, section 1(4) was broadened to include any device that may be used for the nonconsensual interception of "wire, oral, or electronic communications." Section 1(4) was further amended to state that the term "electronic, mechanical, or other device" does not include a telephone or