PD-0984-15 PD-0984-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/30/2015 4:24:57 PM
Accepted 7/30/2015 4:56:47 PM
ABEL ACOSTA
No. 08-13-00334-CR CLERK
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
WENDEE LONG, Appellant
v.
THE STATE OF TEXAS, Appellee
Appeal from Denton County
* * * * *
STATE’S PETITION FOR DISCRETIONARY REVIEW
* * * * *
July 30, 2015
LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No. 13803300
JOHN R. MESSINGER
Assistant State Prosecuting Attorney
Bar I.D. No. 24053705
P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
512/463-1660 (Telephone)
512/463-5724 (Fax)
NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT
*The parties to the trial court’s judgment are the State of Texas and Appellant,
Wendee Long.
*The case was tried before the Honorable Margaret Barnes, 367th District Court,
Denton County.
*Counsel for Appellant at trial was Barry Sorrels and Stephanie A. Luce, 2311 Cedar
Springs, Suite 250, Dallas, Texas 75201.
*Counsel for Appellant on appeal was Bruce Anton and Brett E. Ordiway, 2311
Cedar Springs, Suite 250, Dallas, Texas 75201.
*Counsel for the State at trial was Matthew J. Shovlin and Lindsey E. Sheguit,
Denton County Assistant District Attorneys, 1450 E. McKinney Street, Suite 3100
Denton, Texas 76209.
*Counsel for the State on appeal was Charles E. Orbison and Andrea R. Simmons,
Denton County Assistant District Attorneys, 1450 E. McKinney Street, Suite 3100
Denton, Texas 76209.
*Counsel for the State before this Court is John R. Messinger, Assistant State
Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.
i
TABLE OF CONTENTS
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. Does Penal Code section 16.02 prohibit intercepting and disclosing the
contents of an oral communication even when the speaker has no
expectation that his words will not be repeated by those present?
2. Does a basketball coach have a justifiable expectation that his pep talk
in a girls’ locker room will not be secretly recorded by a former
player?
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
APPENDIX (Opinion of the Court of Appeals, Bill Analysis)
ii
INDEX OF AUTHORITIES
Cases
State v. Betts, 397 S.W.3d 198 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . 3
Bianco v. American Broadcasting Cos., 470 F. Supp. 182 (N.D. Ill. 1979). . . . . . 6
Boddie v. American Broadcasting Cos., 731 F.2d 333 (6th Cir. Ohio 1984). . . 5-6
Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . 4
Chambless v. State, 411 S.W.3d 498 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . 4
State v. Duchow, 749 N.W.2d 913 (Wis. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
United States v. Faulkner, 439 F.3d 1221 (10th Cir. Kan. 2006) . . . . . . . . . . . . . . 6
Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Katz v. United States, 389 U.S. 347 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Long v. State, __S.W.3d__, 2015 Tex. App. LEXIS 6714
(Tex. App.–El Paso 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Lopez v. United States, 373 U.S. 427 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Maden v. State, 07-11-0110-CR, 2013 Tex. App. LEXIS 2619
(Tex. App.–Amarillo Mar. 13, 2013, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . 6
McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App. 1997).. . . . . . . . . . . . . . . . . . . 8
State v. Scheineman, 77 S.W.3d 810 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . 2
United States v. Willoughby, 860 F.2d 15 (2d Cir. N.Y. 1988). . . . . . . . . . . . . . . . 6
Statutes and Rules
TEX. CODE CRIM. PROC. art. 18.20 §1(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
TEX. CODE CRIM. PROC. art. 18.20 §1(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
iii
TEX. PENAL CODE § 16.02(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
TEX. PENAL CODE § 16.02(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
TEX. PENAL CODE § 16.02(c)(4)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
18 USCS § 2510 (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Other resources
S.Rep. No. 1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 2112,
2178. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
iv
No. 08-13-00334-CR
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
WENDEE LONG, Appellant
v.
THE STATE OF TEXAS, Appellee
* * * * *
STATE’S PETITION FOR DISCRETIONARY REVIEW
* * * * *
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the State of Texas, by and through its State Prosecuting Attorney,
and respectfully urges this Court to grant discretionary review of the above named
cause, pursuant to the rules of appellate procedure.
STATEMENT REGARDING ORAL ARGUMENT
The State requests oral argument. The statue prohibiting the interception and
disclosure of oral communications has increasing relevance as recording technology
becomes both more advanced and more accessible, including on most cellular phones.
Conversation will help the Court decide the important privacy issues presented in this
1
case of first impression.1
STATEMENT OF THE CASE
Appellant was convicted of the unlawful interception or disclosure of oral
communications and sentenced to five years in prison, probated for three years, and
fined $1,000.2 The court of appeals held that the victim’s words were not “oral
communications” and rendered a judgment of acquittal.
STATEMENT OF PROCEDURAL HISTORY
On June 30, 2015, the court of appeals reversed appellant’s conviction and
rendered a judgment of acquittal in a published opinion.3 No motion for rehearing
was filed. The State’s petition is due on July 30, 2015.
GROUNDS FOR REVIEW
1. Does Penal Code section 16.02 prohibit intercepting and disclosing the
contents of an oral communication even when the speaker has no
expectation that his words will not be repeated by those present?
2. Does a basketball coach have a justifiable expectation that his pep talk
in a girls’ locker room will not be secretly recorded by a former
player?
1
In State v. Scheineman, this Court reviewed the suppression of a recorded jail conversation
that the defendant claimed violated both the Fourth Amendment and section 16.02, but neither this
nor the lower court addressed the statutory claim. 77 S.W.3d 810, 811 (Tex. Crim. App. 2002).
2
The State does not have access to the record. All facts are taken from the opinion of the court
of appeals.
3
Long v. State, __S.W.3d__, 2015 Tex. App. LEXIS 6714 (Tex. App.–El Paso 2015).
2
ARGUMENT AND AUTHORITIES
Section 16.02 of the Penal Code prohibits intercepting and disclosing the
contents of an oral communication.4 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.”5 “‘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.”6 Does a basketball coach
giving a pep talk to his team in a locker room have a justifiable expectation that his
words will not be surreptitiously recorded by a cell phone hidden by a former player?
The court of appeals held he does not. It based its reversal on the traditional
Fourth Amendment two-step analysis for legitimate expectation of privacy: 1) did
the coach exhibit a subjective expectation of privacy, and 2) would society deem that
expectation reasonable?7 This approach was based on the near identity between the
4
TEX. PENAL CODE § 16.02(b) (“A person commits an offense if the person: (1) intentionally
intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept
a wire, oral, or electronic communication[ or] (2) intentionally discloses or endeavors to disclose to
another person the contents of a wire, oral, or electronic communication if the person knows or has
reason to know the information was obtained through the interception of a wire, oral, or electronic
communication in violation of this subsection[.]”).
5
TEX. PENAL CODE § 16.02(a) (“intercept” and “oral communication” have the meanings
given those terms in Article 18.20, Code of Criminal Procedure); TEX. CODE CRIM. PROC. art. 18.20
§1(2).
6
TEX. CODE CRIM. PROC. art. 18.20 §1(3).
7
Slip op. at 6; see State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013) (characterizing
this as the standing requirement for Fourth Amendment complaints).
3
definition of “oral communication” and the corresponding federal Wiretap Act
provision,8 and the legislative history of the federal act suggesting that the statute was
in response to Katz v. United States.9 This is, by far, the prevailing view of the
federal analogue.10 But it is not supported by the plain language of section 16.02 and
is bad policy.
The court of appeals ignored the plain language of the statute
“The best evidence of the Legislature’s intent is the plain language of the law
it passed.”11 Moreover, “the Legislature is constitutionally entitled to expect that the
Judiciary will faithfully follow the specific text that was adopted.”12 Only if the plain
language of a statute would lead to absurd results, or if the language is not plain but
ambiguous, may a court consider such extratextual factors as legislative history.13
Section 16.02 does not broadly make it illegal to violate reasonable
expectations of privacy. It does not even mention “privacy.” It prohibits 1)
8
18 USCS § 2510 (2).
9
389 U.S. 347 (1967) (tapping a phone booth requires a warrant). See S.Rep. No. 1097, 90th
Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2178.
10
See State v. Duchow, 749 N.W.2d 913, 917-19 (Wis. 2008) (discussing the two views when
interpreting its own statute patterned after the Wiretap Act).
11
Chambless v. State, 411 S.W.3d 498, 503-04 (Tex. Crim. App. 2013).
12
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
13
Id. at 785-86. As it happens, the Texas Legislature read the legislative history of the federal
Wiretap Act to “clearly indicate[] that Congress intended to permit state electronic surveillance laws
to be more restrictive that the Federal Act, and therefore more protective of individual privacy . . .
.” See Appendix (Bill Analysis for H.B. 360, 67th Leg., p.1).
4
intercepting, by electronic means, oral statements that the speaker justifiably expects
not to be acquired, and 2) disclosing the contents of same. A federal case involving
Geraldo Rivera illustrates the difference.
In Boddie v. American Broadcasting Cos.,14 ABC ran a report produced by
Rivera for “20/20” exposing a judge who allegedly traded leniency for sex.15 Boddie,
an alleged participant, sued when she discovered she was secretly filmed when
interviewed.16 ABC argued that the interview was not protected under the federal
wiretap statute because Boddie had no expectation of privacy.17 The court of appeals
disagreed with that approach. “The record shows that Boddie was aware that she was
speaking with reporters from ABC. But it remains an issue of fact for the jury
whether Boddie had an expectation that the interview was not being recorded and
whether that expectation was justified under the circumstances.”18 Citing another
federal case against ABC, it noted:
the statute requires that the plaintiff show only no expectation that the oral
communication was being intercepted through the use of electronic devices.
Thus, there “may be some circumstances where a person does not have an
expectation of total privacy, but still would be protected by the statute because
14
731 F.2d 333 (6th Cir. Ohio 1984).
15
Id. at 335.
16
Id.
17
Id. at 338.
18
Id. at 338-39.
5
he was not aware of the specific nature of another’s invasion of his privacy.”19
The two interests undoubtedly often overlap. For example, a prisoner who is
told that his phone call will be recorded has no reasonable expectation of privacy in
its contents nor justifiable expectation that it will not be recorded.20 But they are not
co-extensive. This case is a good example.
Appellant’s daughter had been on the team the victim coached but quit after the
first game. During an away game for the district title, appellant’s daughter entered
the visitor’s locker room and hid her iPhone inside a locker to record the coach’s half-
time and post-game speeches. The plan was to expose how mean he was to players.
Appellant provided the recordings to the school board, and was arrested after the
superintendent turned them over to police.
The court of appeals concluded that the coach’s words were not “oral
19
Id. at 339 n.5 (quoting Bianco v. American Broadcasting Cos., 470 F. Supp. 182, 185 (N.D.
Ill. 1979)). Or, as one court of appeals characterized it: “Appellant argues on appeal that the
recording of his telephone conversation violated a provision of the Texas wiretapping statute. The
State briefs a different issue, contending appellant had no reasonable expectation of privacy in his
telephone call, under the Fourth Amendment.” Maden v. State, 07-11-0110-CR, 2013 Tex. App.
LEXIS 2619 at *3 (Tex. App.–Amarillo Mar. 13, 2013, pet. ref’d) (not designated for publication)
(emphasis added) (the merits were not reached due to lack of preservation).
20
See United States v. Willoughby, 860 F.2d 15, 23 (2d Cir. N.Y. 1988) (“Quintin and
Montgomery conversed while Quintin was in the process of using the telephone to make another call,
and they knew the telephones were linked to a recording system. . . . We doubt that in all the
circumstances Quintin and Montgomery had a subjective belief that they could not be overheard, and
we conclude that even if they did have such a belief, the circumstances did not justify it.”); cf. United
States v. Faulkner, 439 F.3d 1221, 1224 (10th Cir. Kan. 2006) (“It is generally accepted that a
prisoner who places a call from an institutional phone with knowledge that the call is subject to being
recorded has impliedly consented to the recording.”).
6
communications” because “[he] was well aware that his communications to his
players were subject to public dissemination”21 and so “did not have [a] justifiable
expectation that only they would acquire the contents of his communications.”22 The
court’s analysis makes sense only if the goal of the statute is to prevent disclosure by
parties to private conversations. It is not. In fact, it is an affirmative defense that the
person was a party to the communication.23 Rather, the focus is the interception and
disclosure by those not invited to the party who acquire the conversations without
permission.
The State does not argue that the coach had a justifiable expectation that
nothing he said would be repeated by any of the girls on the team. The question is
whether anyone there could justifiably expect that their words, spoken in a closed
locker room during a strategy session, would not be secretly recorded by someone
who would not have been allowed in. Regardless of whether coaches are teachers,
or whether teachers should have any right to exclude cameras from their classrooms,24
the difference between the announced videotaping of teachers for performance
reviews and a recording device hidden by a student in a locker room at a different
21
Slip op. at 11.
22
Slip op. at 15.
23
TEX. PENAL CODE § 16.02(c)(4)(A).
24
See slip op. at 6-10.
7
school is obvious.
The court of appeals substituted its judgment for that of the jury
The court of appeals’s approach is also worrisome in that it rendered a
judgment of acquittal while avoiding any reliance on sufficiency law. Appellant
challenged the sufficiency of the evidence and the trial court’s overruling of her
motions for directed verdict, acquittal, and new trial, all based on the coach’s
supposed lack of justifiable expectation.25 The court of appeals only addressed the
directed verdict and acquittal; it explicitly did not address sufficiency.26 This should
not have been possible, as “a complaint about overruling a motion for
directed/instructed verdict is in actuality an attack upon the sufficiency of evidence
to sustain the conviction.”27 Yet, the court reviewed the issue as a question of law28
without any reference to Jackson v. Virginia,29 the reasonable doubt standard, or what
a rational jury was entitled to do.
Conclusion
The difference between the privacy analysis espoused by the court of appeals
25
Slip op. at 4; see App. Br. at 3 (Table of Contents).
26
Slip op. at 15 (“Long’s first and third issues are sustained. Given our disposition of these
issues, we need not address her remaining issues.”).
27
McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997).
28
Slip op. at 4-5.
29
443 U.S. 307 (1979).
8
and the plain language of the statute matters. In court, there is a qualitative difference
between testifying to a person’s statements and playing a recording of them, including
reliability30 and the power of hearing it in the speaker’s own voice. Outside of a
courtroom, it is the difference between someone claiming you said something and
video of it being posted on YouTube or sent to TMZ. The legislature has the
prerogative to stop the latter even when it cannot prevent the former.
The victim in this case expected not to have his private locker room speech
secretly recorded by absent, excluded parties. A rational jury could have found this
expectation was justified. The court of appeals was wrong to ignore the plain
language of the statute and substitute its judgment for that of the jury.
30
See Lopez v. United States, 373 U.S. 427 (1963), in which the Supreme Court rejected his
Fourth Amendment challenge the admissibility of a recording of his conversation with Davis, the
IRS agent he attempted to bribe. Id. at 428-29. The government, i.e., Davis, did not use the
electronic device “to listen in on conversations it could not otherwise have heard.” Id. at 439.
“Instead, the device was used only to obtain the most reliable evidence possible of a conversation
in which the Government’s own agent was a participant and which that agent was fully entitled to
disclose.” Id.
9
PRAYER FOR RELIEF
WHEREFORE, the State of Texas prays that the Court of Criminal Appeals
grant this Petition for Discretionary Review and reverse the decision of the Court of
Appeals.
Respectfully submitted,
LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No. 13803300
/s/ John R. Messinger
JOHN R. MESSINGER
Assistant State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711
John.Messinger@SPA.Texas.gov
512/463-1660 (Telephone)
512/463-5724 (Fax)
10
CERTIFICATE OF COMPLIANCE
The undersigned certifies that according to the WordPerfect word count tool
this document contains 3,021 words.
/s/ John R. Messinger
JOHN R. MESSINGER
Assistant State Prosecuting Attorney
CERTIFICATE OF SERVICE
The undersigned certifies that on this 30th day of July, 2015, the State’s Petition
for Discretionary Review was served electronically through the electronic filing
manager or e-mail on the parties below.
Andrea R. Simmons
1450 East McKinney
Denton, Texas 76209
Andrea.Simmons@dentoncounty.com
Bruce Anton
Brett E. Ordiway
2311 Cedar Springs, Suite 250
Dallas, Texas 75201
ba@sualaw.com
bordiway@sualaw.com
/s/ John R. Messinger
JOHN R. MESSINGER
Assistant State Prosecuting Attorney
11
APPENDIX
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
WENDEE LONG, No. 08-13-00334-CR
§
Appellant, Appeal from the
§
v. 367th Judicial District Court
§
THE STATE OF TEXAS, of Denton County, Texas
§
Appellee. (TC# F-2013-1478-E)
§
OPINION
The issue in this case of first impression is whether the following incidents constitute
crimes under Texas’s criminal wiretap statute: the surreptitious recording—later disclosed to a
third party—of a public high school basketball coach’s half-time and post-game speeches to his
team in the visiting locker room of a public high school. In essence, a person violates the wiretap
statute by intentionally recording, or intentionally disclosing the contents of, a “wire, oral, or
electronic communication.” See TEX.PENAL CODE ANN. § 16.02(b)(1), (b)(2)(West Supp. 2014).
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.” [Emphasis added]. See TEX.PENAL CODE ANN. § 16.02(a);
TEX.CODE CRIM.PROC.ANN. art. 18.20, § 1(2)(West 2015). The threshold question, as framed by
the parties, is whether the coach had a reasonable expectation of privacy under the circumstances.
We conclude that he did not and, therefore, that the recordings in dispute are not “oral
communications” covered by Section 16.02 of the Texas Penal Code, the statute used to convict
Wendee Long. Accordingly, we reverse Long’s conviction and render judgment acquitting her of
the charged offense.
FACTUAL AND PROCEDURAL BACKGROUND
Lelon “Skip” Townsend was hired in 2011 to coach the Argyle High School girls’
basketball team. Townsend was, in his own words, an intense coach, who preached discipline
and accountability. Not surprisingly, reports of Townsend berating and belittling players in
practice began surfacing the following school year. Long, a member of the Argyle School Board,
was concerned about the reports, and she grew increasingly concerned when parents began
contacting her to complain of Townsend’s treatment of their children. Long’s daughter had also
been a member of the basketball team before quitting after the first regular season game.
On February 7, 2012, the Argyle High School girls’ basketball team traveled to Sanger to
play the Sanger High School girls’ basketball team for the district title. Long’s daughter attended
the game as a spectator and, with the assistance of a Sanger student, obtained access to the visiting
locker room before halftime for the purpose of surreptitiously videotaping Townsend. Long’s
daughter taped an iPhone to the inside of a locker and set it to record. The iPhone captured an
audio and video recording of Townsend’s half-time speech 1 and an audio recording of
1
Townsend’s half-time speech was nine minutes in length. However, the recording introduced into evidence at trial
depicted only the last two minutes. It appears that Long’s daughter accidentally erased the first seven minutes of
Townsend’s half-time speech when she attempted to email the recording after retrieving the iPhone from the locker.
Dissatisfied with the recording of the half-time speech, her daughter went back into the locker room “to get the end of
game speech.”
2
Townsend’s post-game speech2.
In March 2012, Long showed the recordings, which were on her computer at work, to her
assistant principal.3 Later that month, Long mailed the recordings to the other members of Argyle
School Board, and the recordings were distributed to the Board on the night of the meeting to
consider Townsend’s probationary contract. A few days later, the Superintendent of the Argyle
Independent School District turned over the recordings to the police. A detective with the Sanger
Police Department eventually traced the recordings to Long and her daughter.
Long was charged in a two-count indictment with, inter alia, violating Sections
16.02(b)(1) and (b)(2) of the Texas Penal Code.4 Section 16.02(b)(1) provides that a person
commits an offense if she: “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). Section 16.02(b)(2) makes it a crime to: “intentionally
disclose[] or endeavor[] to disclose to another person the contents of a wire, oral, or electronic
communication if the person knows or has reason to know the information was obtained through
the interception of a wire, oral, or electronic communication in violating of . . . [Subsection (b)].”
TEX. PENAL CODE ANN. § 16.02(b)(2).
The State alleged Long violated Section 16.02(b)(1) by procuring her daughter to record
Townsend’s speeches and Section 16.02(b)(2) by showing the recording to her assistant principal.
2
Because the iPhone fell inside the locker room sometime after Townsend’s half-time speech but before his
post-game speech, it was unable to capture an audio/visual recording of the post-game speech. Only the audio
portion of the speech was recorded.
3
Long was the principal of Wayside Middle School in Saginaw, Texas.
4
Long was also charged with, and tried for, improper photography or visual recording under Section 21.15 of the
Texas Penal Code. See TEX.PENAL CODE ANN. § 21.15(b)(West 2011). The jury, however, found her not guilty on
that count.
3
The jury agreed, finding Long guilty. In accordance with the parties’ plea-bargain agreement, the
trial court sentenced Long to five years’ confinement, probated for three years, and assessed a
$1,000.00 fine.
On appeal, Long raises four issues for our review. In her second issue, she challenges the
sufficiency of the evidence to sustain her conviction. In her first, third, and fourth issues,
respectively, she asserts that the trial court erred in overruling her motions for directed verdict, for
judgment of acquittal, and for a new trial. Although Long enumerates four issues, all rest on the
premise that she committed no crime because, as a matter of law, Townsend “had no justifiable
expectation that only his students would acquire the contents of his communication.”
REASONABLE EXPECTATION OF PRIVACY UNDER THE CIRCUMSTANCES
As mentioned in the preceding paragraph, Long moved for a directed verdict at trial and for
a judgment of acquittal after trial. The basis for both motions was the argument that Townsend
had no reasonable expectation of privacy, nor a justifiable expectation that his communication was
not subject to interception, because his lecture to the team was public speech, which is subject to
lawful recording regardless of where it occurs. In her appellate briefing, Long contends that the
trial court erred in overruling her motions for directed verdict and for judgment of acquittal
because, under the circumstances, Townsend had no reasonable expectation that his intercepted
communication was private. We agree.
Standard of Review
Both parties acknowledge that a trial court’s ruling on a motion for directed verdict or
judgment of acquittal based on a question of law is subject to de novo review on appeal. See
Graham v. Atl. Richfield Co., 848 S.W.2d 747, 750 (Tex.App.--Corpus Christi 1993, writ
4
denied)(de novo review is the proper standard to be employed by an appellate court in reviewing a
trial court’s directed verdict based on non-evidentiary grounds); Johnson v. State, 954 S.W.2d 770,
771 (Tex.Crim.App. 1997)(question of law are subject to de novo review). A directed verdict is
proper when the law applied to the undisputed facts mandates a particular result. Graham, 848
S.W.2d at 750. Here, the question of law is whether Townsend had a reasonable expectation of
privacy in his speeches. To answer that question, we turn to the concept of privacy espoused in
federal law.
Applicable Law
It is beyond dispute that the Texas criminal wiretap statute, Section 16.02, is substantially
similar to the federal one on which it is modeled, the Wiretap Act, codified as 18 U.S.C.
§§ 2510-2521.5 See Alameda v. State, 235 S.W.3d 218, 220, 222 (Tex.Crim.App.), cert. denied,
552 U.S. 1029, 128 S.Ct. 629, 169 L.Ed.2d 406 (2007)(recognizing similarity); Meyer v. State, 78
S.W.3d 505, 509 (Tex.App.--Austin 2002, pet. ref’d)(same). Indeed, the respective definitions of
“oral communication” in both statutes are comparable. Compare 18 U.S.C. § 2510(2)(defining
“oral communication” as “any oral communication uttered by a person exhibiting an expectation
that such communication is not subject to interception under circumstances justifying such
expectation, but such term does not include any electronic communication.”), with TEX.CODE
CRIM.PROC.ANN. art. 18.20, § 1(2)(defining “oral communication” as “any oral communication
5
The Wiretap Act was enacted in 1968 as Title III of The Omnibus Crime Control and Safe Streets Act of 1968.
Pub.L. 90-351. In 1986, it was amended by the Electronic Communications Privacy Act of 1986 (hereinafter, the
“ECPA”) to include electronic communication as well as oral and written communications. See generally Act of
October 21, 1986, Pub.L. No. 99-508, 100 Stat. 1848. In turn, the ECPA was amended by the following statutes: (1)
the Communications Assistance for Law Enforcement Act—see generally Act of October 25, 1994, Pub.L. 103-414,
108 Stat. 4279—(2) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT ACT) Act of 2001—see generally Act of October 26, 2001, Pub.L. 107-56, 115
Stat. 272—(3) the USA PATRIOT Improvement and Reauthorization Act of 2005—see generally Act of March 9,
2006, Pub.L. 109-177, 120 Stat. 192—and (4) the FISA Amendments Act of 2008—see generally Act of July 10, 2008
Pub.L. 110-261, 122 Stat. 2436.
5
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 any electronic
communication.”). It is also beyond dispute that, in interpreting Section 16.02, we may rely on
decisions from other state courts and federal courts construing the Wiretap Act. See Alameda,
235 S.W.3d at 18; Meyer, 78 S.W.3d at 509.
The legislative history of the Wiretap Act reveals that Congress’s intent was to protect
persons engaged in oral communications under circumstances justifying an expectation of privacy.
United States v. McIntyre, 582 F.2d 1221, 1223 (9th Cir. 1978). Thus, to determine whether a
person had a reasonable expectation of privacy in his speech, we employ a two-prong test: (1) did
the person exhibit a subjective expectation of privacy; and (2), if so, is that subjective expectation
one society is willing to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct.
2577, 2580, 61 L.Ed.2d 220 (1979); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.
1996). That determination is made on a case-by-case basis and is highly fact determinative.
Given the great variety of work environments in the public sector, the question whether an
employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.
O’Connor v. Ortega, 480 U.S. 709, 718, 107 S. Ct. 1492, 1498, 94 L. Ed. 2d 714 (1987).
Discussion
Based on the application of existing authority to the evidence adduced at trial, we conclude
that Townsend did not have a reasonable expectation of privacy in his half-time and post-game
speeches to his players.
It is widely accepted that a public school teacher has no reasonable expectation of privacy
in a classroom setting. See Roberts v. Houston Indep. Sch. Dist., 788 S.W.2d 107
6
(Tex.App.--Houston [1st Dist.] 1990, writ denied); Plock v. Bd. of Educ. of Freeport Sch. Dist. No.
145, 545 F. Supp. 2d 755 (N.D. Ill. 2007); Evens v. Super. Ct. of L.A. County, 77 Cal.App.4th 320,
91 Cal.Rptr.2d 497 (1999). In Roberts, the court held that a public school teacher had no legal
complaint against a school district for audiotaping and videotaping her classroom performance
because a teacher has no reasonable expectation of privacy while teaching in a public classroom.
788 S.W.2d at 111. There, the school district’s assessment team videotaped a teacher’s classroom
performance, with the teacher’s knowledge but over her objection. Id. at 108. After reviewing
the videotape, the assessment team recommended that the school district terminate the teacher for
incompetence and inefficiency. Id. The school district notified the teacher of her impending
termination. Id. at 108-09. The teacher contested the proposed termination, and the school
board held a hearing and considered evidence, including excerpts from the videotapes. Id. at 109.
The teacher sued for invasion of privacy. Id. at 109. The court rejected her claim on the basis
that she had not demonstrated “that she had a ‘reasonable expectation of privacy’ in her public
classroom.” Id. at 111. In reaching this conclusion, the court reasoned that “the activity of
teaching in a public classroom does not fall within the expected zone of privacy” because “[t]here
is no invasion of the right of privacy when one’s movements are exposed to public views
generally.” Id. The court noted that the teacher “was videotaped in a public classroom, in full
view of her students, faculty members, and administrators [and] [a]t no point, did the school
district attempt to record [the teacher’s] private affairs.” Id.
In Plock, the federal district court held that special education teachers could not enjoin the
school district from installing audio/visual recording equipment in their classrooms because the
teachers had no reasonable expectation of privacy in communications in their classrooms. Id. at
7
758. There, the teachers claimed that the proposed audio monitoring of their classrooms through
audio/visual equipment would violate their Fourth Amendment right to be free unreasonable
searches and seizure. Plock, 545 F.Supp.2d at 756. The court rejected the teachers’ claim on the
basis that any expectation of privacy in communications taking place in classrooms that are open
to the public was inherently unreasonable because the classrooms were not solely reserved for the
teachers’ exclusive, private use. Id. at 758. In reaching this conclusion, the court reasoned that
communications in a public classroom are not private because “[w]hat is said and done in a public
classroom is not merely liable to being overheard and repeated, but is likely to be overheard and
repeated.” Id. The court did acknowledge, however, that “a teacher’s personal office space,”
including his or her desk and locked file cabinets, “could conceivably be reserved for the teacher’s
exclusive use, giving rise to an expectation of privacy which society is willing to recognize as
reasonable.” Id. at 757.
In Evens, the court held that California’s privacy laws do not prohibit school officials from
using an illegal videotape recording of a teacher in disciplinary actions because the privacy laws
did not expressly prohibit that type of use and because the recording in issue was not the type of
“confidential communication” protected by the privacy laws. 77 Cal.App.4th at 323-24, 91
Cal.Rptr.2d at 498-99. There, two students surreptitiously videotaped a public high school
science teacher in her classroom and delivered it to the school board and district. Id. at 322, 91
Cal.Rptr.2d at 498. The teacher sought a judicial declaration that state statutes prohibited these
entities from viewing the videotapes because evidence obtained as a result of unconsented
recordings cannot be used in any administrative or judicial proceeding. Id. at 322-23, 91
Cal.Rptr.2d at 498-99. The court rejected the teacher’s argument on the basis that the “videotape
8
recording . . . was made in a public classroom” and was therefore not considered a “confidential
communication” because the teacher’s expectation that her communications and activities would
be private and confined solely to the classroom was unreasonable. Evens, 77 Cal.App.4th at
323-24, 91 Cal.Rptr.2d at 498-99. In reaching this conclusion, the court reasoned that a teacher’s
communications and activities in a public classroom are not private because:
[They] will virtually never be confined to the classroom. Students will, and
usually do, discuss a teacher’s communications and activities with their parents,
other students, other teachers, and administrators. . . . A teacher must always
expect ‘public dissemination’ of his or her classroom ‘communications and
activities.’
Id. at 324, 91 Cal.Rptr.2d at 499.
While not as widely accepted as the proposition that a public school teacher has no
reasonable expectation of privacy in a classroom setting, a public high school coach—like a public
high school teacher—is an educator, in the broadest sense of the word. The essence of an
educator’s role is to prepare students to fulfill their role as responsible citizens in a free society.
Lowery v. Euverard, 497 F.3d 584, 589 (6th Cir. 2007); Hardy v. Jefferson Cmty. Coll., 260 F.3d
671, 679 (6th Cir. 2001). “Educating students includes not only classroom teaching, but also
supervising and educating students in all aspects of the educational process.” Ex parte Trottman,
965 So.2d 780, 783 (Ala. 2007). Extracurricular activities are important to many students as part
of a complete educational experience. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 311, 120
S.Ct. 2266, 2280, 147 L.Ed.2d 295 (2000). To “educate” means “to train by formal instruction
and supervised practice esp. in a skill, trade, or profession” or “to develop mentally, morally, or
aesthetically esp. by instruction.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 396 (11th ed.
2009).
9
Although the duties of a coach are not comparable to that of the typical classroom teacher,
no one could reasonably deny that some of the duties of a coach involve a type of teaching.
Theiler v. Ventura Cnty. Cmty. Coll. Dist., 198 Cal.App.4th 852, 859, 130 Cal.Rptr.3d 273, 277
(2011), as modified (Aug. 24, 2011). A public high school coach educates students-athletes in a
myriad of ways. Principally, a coach provides instruction to help his players reach a certain
performance standard in a chosen activity. See Lowery, 497 F.3d at 589 (recognizing that “the
immediate goal of an athletic team is to win the game, and the coach determines how best to obtain
that goal[]”); Ex parte Nall, 879 So.2d 541, 546 (Ala. 2003)(holding that student injured during
baseball practice could not recover in negligence suit against public school coaches because they
were state agents entitled to immunity for the exercise of judgment in educating students).
Secondarily, a coach teaches his players to develop self-discipline, an admirable trait and one
necessary for success in most endeavors in life, including academics. See Lowery, 497 F.3d at
589 (recognizing that students participating in sports develop discipline, and that “[a]thletic
programs may also produce long-term benefits by distilling positive character traits in the
players[]”); Ex parte Yancey, 8 So.3d 299, 305-06 (Ala. 2008)(holding that student injured while
cleaning field house following weight-lifting class taught by high school public coach could not
recover in negligence suit against the coach because he was a state agent entitled to immunity for
the exercise of judgment in teaching students discipline in his weight-lifting class by requiring
then to clean field-house facilities).
From the preceding authority, we can extrapolate that society is not willing to recognize
that a public school educator—whether a teacher or a coach—has a reasonable expectation of
privacy in his or her instructional communications and activities, regardless of where they occur,
10
because they are always subject to public dissemination and generally exposed to the public view.
Here, there is no doubt that Townsend was an educator helping his pupils maximize performance
and develop discipline. At trial, Townsend acknowledged his role as an educator:
[DEFENSE COUNSEL]: Even though it has a -- it can be a private dressing room
during the times that you just described when the girls are changing clothes or
going to the bathroom back in the bathroom part -- or it can be used as a space for
you to be an educator; is that correct?
[TOWNSEND]: Yes, sir.
[DEFENSE COUNSEL]: I mean, it’s a – it’s a – it’s a convenient space for you,
who are supposed to be an educator, to meet with your -- the young ladies that are in
a public school where you’re a public teacher; is that right?
[TOWNSEND]: That’s correct.
[DEFENSE COUNSEL]: It’s a classroom basically; would you agree?
[TOWNSEND]: Sometimes it is, yes.
Townsend also identified for the jury the lessons he strived to impart on his players:
I expect my kids to work hard. I expect my kids to be disciplined. I want a
disciplined team, which just means that I want the kids to play together, to do what
the coaches ask them to do, to buy into what we’re doing, and just play as hard as
they can.
And, you know -- and I know winning is important. I’ve never been in a
gym that there wasn’t a scoreboard up there, so I know winning’s -- the score
means something, but I -- one of my -- my style has always been this, is winning
takes care of itself when you -- when you develop kids who have discipline, who
are determined, have determination, they dedicate theirselves, and they have a good
character.
So we always try to do things that develop character in the kids and a good
work ethic and accountability. Those are the things that we look for on a team.
And something that’s always been my trademark in any of my teams is we’re –
we’re able to accomplish that, those things, whether winning or not.
Just as important, Townsend was well aware that his communications to his players were subject
to public dissemination. In the audio recording of his speech to the team following the loss to
11
Sanger, Townsend can be heard telling the players:
And you know, I know the deal. You go home and you tell your parents, ‘Well, uh
that’s what they told me to do; I . . . screwed up but that’s what they told me to do.’
And that’s easy to do coming from you to them, you know, when there’s not me
there to say, ‘I don’t believe that is what I told you to do.’ It’s kinda easy to do
that, you know. If that, if that’s how you live, that’s that’s – go ahead and live like
that.
Accordingly, we conclude that society is not willing to recognize as reasonable any expectation of
privacy in half-time and post-game instructional communications uttered by a public high school
basketball coach to his team in the visiting locker room of a public high school.
The State takes umbrage with the proposition “that a coach addressing his team during and
after a sports contest is ‘equivalent’ to a teacher addressing a class.” The State asserts a “coach is
different from a teacher” in two important respects. The first is that “[a] coach’s objective is not
pedagogical in nature, but rather to achieve success in the sports arena.” The second is that “the
nature of a coach’s behavior with his team on game day” in a closed locker room is private rather
than public. In essence, the State is contending that the curtailed expectation of privacy society is
willing to recognize for teachers “should not automatically be applied to coaches addressing their
teams at halftime or at the end of a sports contest” because a coach fulfills a different role in a
different physical space. While we are not insensitive to the State’s argument, we are not
persuaded by it.
In support of its proposition that high school coaches are not akin to a high school teachers
because high school coaches “do not contribute to a student’s generalized knowledge base
regarding educational requirements of a high school as do teachers of subjects such as science,
math, or social studies[,]” the State cites Dambrot v. Central Michigan Univ., 55 F.3d 1177 (6th
Cir. 1995). The State’s reliance on Dambrot is misplaced.
12
In Dambrot, the Sixth Circuit Court of Appeals held that the coach of a state university
basketball team did not engage in protected speech when he used the word “nigger” during a
locker-room peptalk. 55 F.3d at 1187. The court so held for a variety of reasons, including the
rationale that the coach could not bring himself under the protection of academic freedom because
he used the derogatory term to motivate rather than to educate. Id. at 1188-91. In making the
point that the coach’s speech was removed from any academic context, the court observed:
Dambrot’s use of the N-word is even further away from the marketplace of
ideas and the concept of academic freedom because his position as coach is
somewhat different from that of the average classroom teacher. Unlike the
classroom teacher whose primary role is to guide students through the discussion
and debate of various viewpoints in a particular discipline, Dambrot’s role as a
coach is to train his student athletes how to win on the court. The plays and
strategies are seldom up for debate. Execution of the coach’s will is paramount.
Moreover, the coach controls who plays and for how long, placing a disincentive on
any debate with the coach’s ideas which might have taken place.
Id. at 1190.
But the court’s observations in Dambrot are inapplicable in resolving this case. The issue
here is whether Townsend had a reasonable expectation of privacy in his speeches. It is not, as it
was in Dambrot, whether the contents of Townsend’s speeches were protected under the First
Amendment as matters of public concern. The two are distinct legal inquiries. Furthermore, the
context in which sports and academics were distinguished in Dambrot is of no help here. The
court merely illustrated the distinction between the two disciplines in relation to speech intended
for a private rather than a public audience. Because the illustration does not explain why the
distinction matters in any other context, it provides no guidance in answering the burning question:
does a public high school coach have a reasonable expectation of privacy in half-time and
post-game instructional communications to his team. Dambrot is thus inapposite.
13
In support of its proposition that coaches are not akin to teachers because “[,]in the context
of a sports contest, a locker room is surely not a classroom, but a place for student athletes . . . to be
reminded of the particular game plan and strategy for the game at hand, to consider how to
improve performance at halftime of the game, and to hear an assessment of performance at the
conclusion of the contest . . .[,]” the State cites Borden v. Sch. Dist. of the Township of East
Brunswick, 523 F.3d 153 (3rd Cir. 2008), cert denied, 555 U.S. 1212, 129 S.Ct. 1524, 173 L.Ed.2d
656 (2009). The State’s reliance on Borden is misplaced.
In Borden, the Third Circuit Court of Appeals held that a public school football coach’s
twenty-three-year practice of “engag[ing] in the silent act [ ] of bowing his head during his team’s
pre-meal grace and taking a knee with his team during a locker-room prayer” constituted an
unconstitutional endorsement of religion. 523 F.3d at 158, 176-78. In reaching this holding, the
court disposed of the coach’s argument that his conduct was a “matter[] of public concern
triggering protection of his rights, as a public employee, to freedom of speech” by highlighting the
facts supporting its conclusion that the coach’s speech was not public in nature:
Borden’s speech does not occur in any type of official proceeding, and even more
importantly, Borden’s speech does not extend into any type of public forum. In
fact, Borden himself admits that the bowing of his head and taking of a knee occur
in private settings, namely at an invitation-only dinner and in a closed locker room.
Again, we find further support for this decision in the Sixth Circuit’s opinion in
Dambrot, where the court noted the private nature of the coach’s message to his
players because the coach’s pep talk was given in a locker room for the private
consumption of his players. 55 F.3d at 1188. Thus, we conclude that as in
Dambrot, the bowing of Borden’s head and taking a knee are meant for the
consumption of the football team only. [Emphasis added].
523 F.3d at 171. The State directs our attention to the italicized portions of this passage.
But just as the court’s observations in Dambrot are inapplicable in resolving this case, so
too are the court’s observations in Borden. This is because Dambrot and Borden are of the same
14
ilk. Thus, for the reasons articulated above, Borden is inapposite. Furthermore, Roberts, Plock,
and Evans make clear that an educator has no expectation of privacy in a space where he or she is
providing instructional communications and activities to students. Here, Townsend was
providing instructional communications to his players. That the instructional communications
took place in a visiting locker room is inconsequential because the space was open to and occupied
by student-athletes for the very purpose of receiving instruction.
Because society is not willing to recognize as reasonable any expectation of privacy in
half-time and post-game instructional communications uttered by a public high school basketball
coach to his players in the visiting locker room of a public high school, Townsend did not have
justifiable expectation that only they would acquire the contents of his communications.
Consequently, the recordings in dispute are not “oral communications” covered by Section 16.02
of the Texas Penal Code.
Long’s first and third issues are sustained. Given our disposition of these issues, we need
not address her remaining issues. See TEX.R.APP.P. 47.1 (providing that the court of appeals
must hand down a written opinion that is as brief as practicable but that addresses every issue
raised and necessary to final disposition of the appeal).
CONCLUSION
The trial court’s judgment is reversed, and we render judgment acquitting Long of the
charged offense.
June 30, 2015
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Publish)
15