Aaron Ray Higginbotham v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00168-CR

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AARON RAY HIGGINBOTHAM, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 188th Judicial District Court

Gregg County, Texas

Trial Court No. 30772-A

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          Aaron Ray Higginbotham appeals from his conviction by a jury—and mandatory life

sentence—for capital murder. He contends the trial court erred in admitting testimony of his oral statements to the police while he was under arrest. Because Higginbotham failed to preserve this issue for our review, there is no error, and we affirm the judgment.

          The evidence, including Higginbotham's own testimony, established that he and Michael Kay caught a ride with Michael Hendrix, in Hendrix's pickup truck, from a strip club in Kilgore; that they went to a secluded location near the Sabine River; that Higginbotham and Kay beat Hendrix unconscious and threw him in the river; and that they then left, taking Hendrix's truck.

          Higginbotham gave four written statements to police in which he admitted his complicity in the crime. Those statements were admitted into evidence. Higginbotham also took the police to the location where he and Kay had assaulted Hendrix and where they threw him in the river. Higginbotham made a number of oral statements to the police during this trip. The police recovered blood from the scene of the assault, and they recovered Hendrix's body in the river near where Higginbotham told them he and Kay had thrown it.

          Higginbotham contends only that the admission of testimony about his oral statements was error. He did not object at trial to the admission of this testimony. His pretrial motion to suppress did, however, ask that both written and oral statements be suppressed. When a pretrial motion to suppress evidence is overruled, a defendant need not subsequently object at trial to the same evidence in order to preserve error on appeal. Wyle v. State, 777 S.W.2d 709, 715 n.5 (Tex. Crim. App. 1989); Mayfield v. State, 152 S.W.3d 829, 831 (Tex. App.—Texarkana 2005, pet. ref'd); see Tex. R. Evid. 103(a)(1).

          At the hearing on Higginbotham's motion to suppress, some of the officers testified concerning Higginbotham leading them to where Hendrix's body was found, but no questions were asked concerning the specific content of the officers' conversations with Higginbotham on that occasion; neither was there any attempt made to raise any issues about the admissibility of testimony concerning those conversations. The entirety of the focus of the hearing was on the four written statements. When the trial court ruled on the admissibility of the statements, it did so after hearing the testimony concerning the circumstances surrounding the taking of the written statements and after hearing argument by both defense and prosecution explaining their reasons as to why the documents were or were not admissible. The court ruled the statements admissible. Higginbotham now contends the testimony of Detective Tom Watson concerning the oral, in custodial, statements Higginbotham made while leading the officers to where he and Kay had disposed of Hendrix's body, was improperly admitted.

          We note that Higginbotham has argued in his appellate brief that the oral statements were inadmissible because the context of those statements was coercive, i.e., he was in a police car, surrounded by police officers, in the river bottoms at night, looking for a body. However, as noted above, Higginbotham did not argue these matters at the suppression hearing or at the time this testimony was offered at trial. He cannot now raise those arguments for the first time on appeal. See Hargrove v. State, 162 S.W.3d 313, 324 (Tex. App.—Fort Worth 2005, pet. filed) (holding that failure to raise issues clearly at suppression hearing preserves nothing for appellate review); Judd v. State, 923 S.W.2d 135, 138 (Tex. App.—Fort Worth 1996, pet. ref'd) (emphasizing that any objection at trial that differs from complaint on appeal preserves nothing for review); McNairy v. State, 777 S.W.2d 570, 573 (Tex. App.—Austin 1989), aff'd on other grounds, 835 S.W.2d 101 (Tex. Crim. App. 1991) (acknowledging that contention presented on appeal must be same as that presented to trial court at pretrial hearing on motion to suppress evidence).

          Because of the absence at the suppression hearing of any argument concerning these oral statements, and because these statements were admitted at trial without objection, we conclude that the issue now raised for the first time on appeal has not been preserved for our review.

          Even if the alleged error had been preserved, the issue in determining whether evidence should be suppressed is a constitutional one. Thus, we would be required to reverse unless we determine beyond a reasonable doubt the error did not contribute to the appellant's conviction or punishment. Tex. R. App. P. 44.2(a). In assessing the likelihood that the jury's decision was adversely affected by the error, we are to consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and its connection with other evidence, and whether the state emphasized the error. See Motilla v. State, 78 S.W.3d 352, 357–58 (Tex. Crim. App. 2002); Malone v. State, 163 S.W.3d 785, 800 (Tex. App.—Texarkana 2005, pet. filed). We would, therefore, assess the probable weight a juror would place on the improperly admitted statements. To do this in the instant case, we must assess the independent proof of Higginbotham's participation in the alleged offense. See Jones v. State, 119 S.W.3d 766, 778 (Tex. Crim. App. 2003).

          In making that assessment, we have four separate written confessions by Higginbotham that were admitted into evidence. In the longest, typewritten statement, he admitted in detail everything mentioned in the oral statements. He personally testified at trial that he believed Hendrix was hurt "pretty bad" when they put him in the back of the truck, and that Higginbotham and Kay threw Hendrix in the river. Forensic examination found Hendrix's blood in the truck and on Higginbotham's clothes and a shoe.

          Higginbotham argues that Watson's testimony concerning the oral statements was harmful because it showed his mental condition at the time as being more coherent than that reflected by his disjointed state of mind at the time of trial. However, his efforts to be of assistance and to tell the truth were a centerpiece of the defense strategy at trial, which, under these facts, was an attempt to show that he was not the main actor in the commission of the offense and thereby avoid a capital murder conviction. With this trial strategy, it is difficult to perceive how a recounting of the officers' efforts to find Hendrix's body with Higginbotham's assistance was harmful to Higginbotham.

          Finally, the oral statements about which Watson testified were admissible evidence pursuant to Tex. Code Crim. Proc. Ann. art. 38.22, § 3(c) (Vernon 2005). Such statements led the police to evidence (Hendrix's body) they did not have, and contained assertions of facts and circumstances that were found to be true and that established Higginbotham's guilt.

          For these reasons, Higginbotham's sole point of error is overruled.

          We affirm the judgment.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      September 20, 2005

Date Decided:         October 4, 2005

Do Not Publish

n and Didrickson had keys. Although there was no formal nondisclosure agreement as a part of McClain's employment, ⁽⁴⁾ Didrickson testified that he had explained to McClain the need for secrecy.

The record, though, also contains some contrary evidence. As pointed out by McClain, Didrickson Associates did not diligently protect the backsheets. Didrickson admitted on cross-examination that he would share the backsheets with customers and on at least one occasion had shared a backsheet with a competitor. Although most of the backsheets were kept locked in the filing cabinet, Didrickson admitted that the backsheets which were in most common use were kept in a binder which was not secured.

We are unable to reach the high level of skepticism required to disturb the jury's finding on this point. Didrickson's credibility is the sole province of the jury. The contrary evidence is not strong enough to overcome the deference we grant to the jury. The evidence of security measures is sufficient for the jury to have concluded that Didrickson Associates took measures to ensure that the information remained secret.

B. The Backsheets Are Not Trade Secrets

At trial, the State argued the backsheets ⁽⁵⁾ are trade secrets because they contain technical information and have value. In order for a person to commit theft of a trade secret, the information taken must be a trade secret. The simple fact that information has value does not make that information a trade secret. McClain argues the backsheets are not trade secrets because they are public information.

The record conclusively establishes the backsheets were public knowledge. Didrickson admitted the backsheets had been placed in the public domain by GE, the original publisher. When asked, "[Y]ou're not claiming an intellectual property right or the ownership of the trade secret that is labeled proprietary information of General Electric Company, are you? You're not the sole --," Didrickson testified, "I did not design that circuit. I'm not claiming I own the design of that circuit. I'm claiming I own that paper that that circuit is on and it was in my file." ⁽⁶⁾ Didrickson admitted that the backsheets have been "floating around in public for -- some of them for 40 years."

The backsheets are not trade secrets because they have been released into the public domain. "'Matters of general knowledge in an industry cannot be appropriated by one as his secret.'" Wissman v. Boucher, 150 Tex. 326, 330, 240 S.W.2d 278, 280 (Tex. 1951) (quoting Restatement, Torts, ch. 36, p.7)). "Clearly, if an article that is a trade secret becomes known to the community, it loses its status as a trade secret." Leonard, 767 S.W.2d at 175. The bell, once rung, cannot be unrung. Once in the public domain, the trade secret must remain in the public domain. See Kewanee v. Bicron, 416 U.S. 470, 484 (1974) ("By definition a trade secret has not been placed in the public domain."). Although the backsheets may be difficult to find due to their age and obsolete status, ⁽⁷⁾ the backsheets--once having become public knowledge--remain public knowledge.

In Weightman v. State, the Fourteenth District Court of Appeals, in a case for the theft of trade secrets, determined that the evidence was legally insufficient when a drawing which was alleged to have been a trade secret had previously been released to the public. Weightman v. State, Nos. 14-93-01094-CR, 14-93-01095-CR, 14-93-01096-CR, 14-93-01097-CR, 1996 Tex. App. LEXIS 5472 (Tex. App.--Houston [14th Dist.] Dec. 12, 1996) (not designated for publication), aff'd 975 S.W.2d 621 (Tex. Crim. App. 1998). Similar to Weightman, no rational juror could have concluded that the backsheets were trade secrets because the evidence conclusively established the backsheets had been released into the public domain.

C. Even if the Improvements Were Trade Secrets, McClain Owns the Improvements

The State argues that even if the backsheets themselves were not trade secrets, the improvements to the backsheets (i.e., the notes or tips written on them) were trade secrets. We note it is debatable that the improvements were even trade secrets. ⁽⁸⁾ Assuming, however, that the improvements are trade secrets, the State failed to prove Didrickson Associates had an exclusive right to the trade secrets. The only improvements identified as being stolen by McClain are the set-up sheets. ⁽⁹⁾ Didrickson testified that the set-up sheets were McClain's idea and that McClain was the only person who created the set-up sheets.

The State argues that the improvements belong to Didrickson Associates because McClain developed the improvements during the course and scope of his employment. The State cites Davis v. Alwac Int'l, Inc., 369 S.W.2d 797, 802 (Tex. Civ. App.--Beaumont 1963, writ ref'd n.r.e.), for the proposition that the improvements belong to Didrickson Associates. The State's interpretation of Davis is an oversimplification of the law which applies. Because the employee in Davis was hired to invent, the Davis court only recited the rule applicable to employees hired to invent, not to other employees.

"That an invention was conceived or developed while the inventor was employed by another does not alone give the employer any right in the invention." Wommack v. Durham Pecan Co., 715 F.2d 962, 965 (5th Cir. 1983). When the trade secret originates from the employee, the employer's ownership rights depends on the nature of the employment relationship which exists. In determining ownership of the trade secret, we must balance competing policies: "the right of a businessman to be protected against unfair competition stemming from the usurpation of his trade secrets and the right of an individual to the unhampered pursuit of the occupations and livelihoods for which he is best suited." Wexler v. Greenberg, 160 A.2d 430, 434 (Pa. 1959). An employer can prevent an employee from revealing a trade secret which the employee "himself developed during the course of his former employment" only by an express contract restricting its use or by virtue of the special confidential relationship of the parties. Id. at 433-34. Because there is no evidence of an express assignment from McClain to Didrickson Associates of McClain's rights to the improvements which are the subject of this case, we must determine whether the employee-employer relationship in this case is of the nature which necessarily implies such an assignment.

As the Beaumont court correctly held in Davis, the ownership of the invention, when there is no express contractual assignment, depends on whether the employee was "'employed to invent or devise such improvements.'" ⁽¹⁰⁾ Davis, 369 S.W.2d at 802 (quoting Standard Parts Co. v. Peck, 264 U.S. 52, 58 (1924)); see Teets v. Chromalloy Gas Turbine Corp., 83 F.3d 403, 407 (Fed. Cir. 1996). If an employee was not hired to invent or devise the improvements, the employee is entitled to ownership of the improvements. United States v. Dubilier Condenser Corp., 289 U.S. 178 (1933); see Wommack, 715 F.2d at 967.

The State did not establish that McClain was hired to design improvements to the backsheets. To the contrary, the State established that McClain, the holder of two associate degrees, was not hired to design improvements. Didrickson testified that McClain's responsibility was responding to inquiries from customers, to test and certify cards, and to repair defective cards. Didrickson admitted that the set-up sheets had been McClain's idea and that all of them were produced by McClain. Absent an express assignment, the improvements did not become the exclusive property of Didrickson Associates.

We note that Didrickson Associates may have a "shop right" to the improvements as a matter of equity. An employer has a shop right when "the invention was developed by his employee during the employer's time or with the assistance of the employer's property or labor." Wommack, 715 F.2d at 965. A "shop right" is a nonexclusive right to practice the invention. Dubilier Condenser, 289 U.S. at 188. At best, Didrickson Associates has a "shop right" to the improvements or set-up sheets--a nonexclusive right of ownership.

As a nonexclusive right, Didrickson Associates cannot, by virtue of McClain's shop right, prohibit him from using the improvements which he developed. Even if the improvements or set-up sheets were trade secrets, McClain owns the improvements subject to Didrickson Associates' possible shop right. Because there was neither any evidence of an express assignment from McClain to Didrickson Associates nor evidence that McClain was hired specifically to design or invent, the evidence is legally insufficient that McClain committed theft of trade secrets.

IV. Conclusion

Although McClain may have obtained this information wrongfully, McClain is not guilty of theft of trade secrets. ⁽¹¹⁾ As information previously placed in the public domain, the backsheets are not trade secrets and even if the set-up sheets had been trade secrets, the State failed to prove that Didrickson Associates had the exclusive ownership rights to the improvements contained in the set-up sheets. Absent an express assignment of McClain's rights or evidence that McClain was hired for the purpose of developing trade secrets, McClain owned the improvements, if any, contained in the set-up sheets, subject to any shop rights held by Didrickson Associates. The evidence is legally insufficient. Because the evidence is legally insufficient, it is unnecessary to decide McClain's fourth point of error regarding error in the jury charge.

We reverse the judgment of the trial court and render a judgment of acquittal.

Bailey C. Moseley

Justice

Date Submitted: September 10, 2008

Date Decided: October 17, 2008

Publish

1. This case has been transferred to this Court as part of the Texas Supreme Court's docket equalization program.

2. Didrickson testified the "aero-derivative gas turbines" are gas turbines located on airplanes which are "directly coupled to their compressors and their gears."

3. Because tangible property, which consists of physical property composed of atoms, can occupy only one place at any given time, the right to exclude others lies at the core of the traditional Western concept of property. Robert P. Merges, et al., Intellectual Property in the New Technological Age, 2 (2d ed. 2000). Intellectual property, as intangible property, does not have this inherent characteristic of exclusivity. Id. The exchange of ideas does not deprive the original owner of the idea. Id.

4. Further, the Texas Court of Criminal Appeals has noted there is an implied duty of confidentiality by virtue of the employment relationship even in the absence of an express written agreement. Schalk, 823 S.W.2d at 640. "Although this duty does not bar use of general knowledge, skill, and experience, it prevents the former employee's use of confidential information or trade secrets acquired during the course of employment." T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 22 (Tex. App.--Houston [1st Dist.] 1998, no pet.).

5. The backsheets introduced as exhibits were from the files of Didrickson Associates. Didrickson testified the backsheets were those which McClain had removed and later returned.

6. While Didrickson Associates may have owned the paper on which the ideas were recorded, Didrickson Associates did not necessarily have title to the ideas. Ideas are intangible and exist independent of the physical medium on which they are recorded. As a theft of trade secrets case, the issue in this case is whether McClain stole the ideas, not whether McClain stole the physical medium on which the ideas were recorded.

7. David Kellum testified the backsheets "are a hard find."

8. A trade secret must be "information that is not publicly available or readily ascertainable by independent investigation." Numed, Inc. v. McNutt, 724 S.W.2d 432, 435 (Tex. App.--Fort Worth 1987, no writ) (contracts distributed to customers are not trade secrets); SCM Corp. v. Triplett Co., 399 S.W.2d 583, 586 (Tex. Civ. App.--San Antonio 1966, no writ). Didrickson admitted that all of the information on the set-up sheets was contained on the backsheets. Because the improvements consisted entirely of information that was readily ascertainable from public information, i.e., the backsheets themselves, the improvements may not be trade secrets. We will assume, without deciding, that the improvements are trade secrets.

9. We note Didrickson answered yes when asked whether he or his employees had "made changes, amendments, alterations, something of that nature, to increase [the backsheet's] value." The backsheets introduced at trial had been used by Didrickson Associates since the alleged theft. In our review of the exhibits, we only located two backsheets which had amendments on their face other than highlighting. Exhibit 5Y was substantially modified. An ohm measurement had been added to Exhibit 5EE. The record does not contain any evidence as to when these amendments occurred or who made the amendments. Didrickson testified he could not identify writing on any of the backsheets. The State failed to prove these amendments were in existence at the time McClain stole the backsheets and that McClain did not make these amendments. Without evidence that the amendments were made prior to the alleged theft and that the amendments were not made by McClain, the amendments to the face of the backsheets cannot form the basis of the theft of trade secrets allegations.

10. We note that Davis concerned patent law and did not involve trade secrets. Although we are not aware of any Texas caselaw applying this doctrine to trade secrets, secondary authority indicates the principle is applicable to trade secrets as well as patentable inventions. See 5 Milgrim on Trade Secrets § 5.02 (Lexis 2008); 13 William V. Dorsaneo, III, and Herbert J. Hammond, Texas Litigation Guide § 200.04 (Lexis 2008).

11. We are not saying there is no form of legal redress available to Didrickson Associates for McClain's actions--merely that the State has failed to prove McClain was guilty of theft of trade secrets.