ACCEPTED
01-15-00102-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/10/2015 11:14:55 AM
CHRISTOPHER PRINE
CLERK
Nos. 01-15-00102-CR, 01-15-00103-CR
and 01-15-00104-CR FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
8/10/2015 11:14:55 AM
IN THE FIRST COURT OF A P P E ACHRISTOPHER
LS A. PRINE
Clerk
HOUSTON, TEXAS
BRODRICK MICHAEL JAMES,
Appellant,
Vs.
THE STATE OF TEXAS,
Appellee.
Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause Nos. 74207, 74208 and 74209
BRIEF FOR THE APPELLEE, THE STATE OF TEXAS
Trey D. Picard
Assistant Criminal District Attorney
State Bar No. 24027742
JERI YENNE – BRAZORIA COUNTY 111 East Locust St., Suite 408A
CRIMINAL DISTRICT ATTORNEY Angleton, Texas 77515
(979) 864-1233
(979) 864-1712 Fax
treyp@brazoria-county.com
Attorney for the Appellee,
Oral argument is requested. The State of Texas
IDENTITY OF PARTIES AND COUNSEL
Appellant: Brodrick Michael James
Appellee: The State of Texas
Attorney for the Appellant: Keith G. Allen
State Bar No. 01043550
Law Offices of Keith G. Allen, PLLC
2360 CR 94, Suite 106
Pearland, Texas 77584
(832) 230-0075
(832) 413-5896 Fax
Keith@KGAllenLaw.com
Attorney for the Appellant Faye Gordon
at Trial: State Bar No. 08197500
Attorney at Law
201 E. Myrtle, Suite 126
Angleton, Texas 77515
(979) 849-3330
Faye@FayeGordonLaw.com
Attorney for the Appellee Trey D. Picard
on Appeal: State Bar No. 24027742
Assistant Criminal District Attorney
111 East Locust St., Suite 408A
Angleton, Texas 77515
(979) 864-1233
(979) 864-1712 Fax
treyp@brazoria-county.com
ii
Attorneys for the Appellee Brian Hrach
at Trial: State Bar No. 24050787
Assistant Criminal District Attorney
Rick Martin
State Bar No. 24073267
Assistant Criminal District Attorney
111 East Locust St., Suite 408A
Angleton, Texas 77515
(979) 864-1233
(979) 864-1712 Fax
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................. ii
TABLE OF CONTENTS............................................................................... iv
INDEX OF AUTHORITIES ......................................................................... vi
ABBREVIATIONS FOR RECORD REFERENCES .....................................x
STATEMENT OF THE CASE .......................................................................1
ISSUES PRESENTED ....................................................................................2
STATEMENT OF FACTS ..............................................................................3
SUMMARY OF THE ARGUMENT ..............................................................7
ARGUMENT ...................................................................................................8
1) The trial court was within its discretion to deny
Appellant’s request to discharge his attorney made on
the day of trial .............................................................................8
2) The recording of Appellant’s accidental call to law
enforcement was properly admitted ......................................... 10
a) Appellant did not have a reasonable
expectation of privacy in the accidental call ................. 12
b) The investigator’s recording of Appellant’s
conversation did not violate the Texas wiretap
statute ............................................................................. 16
3) Appellant was not prejudiced by any alleged error by
his trial counsel ........................................................................ 18
4) Appellant retained the right to Appeal for both guilt-
innocence and the punishment phases of trial ......................... 20
iv
CONCLUSION ............................................................................................. 22
PRAYER ....................................................................................................... 23
CERTIFICATE OF SERVICE ..................................................................... 24
CERTIFICATE OF RULE 9.4 COMPLIANCE .......................................... 25
APPENDIX ................................................................................................... 26
v
INDEX OF AUTHORITIES
Cases
Allen v. State,
No. 08–13–00302–CR, 2015 WL 2183526
(Tex.App.—El Paso, May 8, 2015, no pet.)
(not released for publication) ................................................... 17
Barfield v. State,
416 S.W.3d 743 (Tex.App.—Houston [14th Dist.]
2013, no pet.)............................................................................ 12
Bourque v. State,
156 S.W.3d 675 (Tex.App.—Dallas 2005, no pet.)................. 19
Busby v. State,
990 S.W.2d 263 (Tex.Crim.App.1999).................................... 18
California v. Ciraolo,
476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed. 210 (1980) ................ 12
Childress v. State,
794 S.W.2d 119 (Tex.App.—Houston [1st Dist.]
1990, pet. ref’d) .......................................................................... 8
Dears v. State,
154 S.W.3d 610 (Tex.Crim.App.2005).............................. 20, 21
Duhig v. State,
171 S.W.3d 631 (Tex.App.—Houston [14th Dist.]
2005, pet. ref’d) ........................................................................ 15
Ex Parte Moore,
395 S.W.3d 152 (Tex.Crim.App.2013).................................... 10
Ex parte Okere,
56 S.W.3d 846 (Tex.App.—Fort Worth 2001, pet. ref’d) ....... 19
vi
Ex parte Thomas,
545 S.W.2d 469 (Tex.Crim.App.1977).................................... 21
Granados v. State,
85 S.W.3d 217 (Tex.Crim.App.2002)...................................... 11
Horton v. California,
496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) .......... 15
Huff v. Spaw,
No. 14-5123, 2015 WL 4430466 (6th Cir.) July 21, 2015)
(not released for publication) ............................................. 12, 14
Jackson v. State,
877 S.W.2d 768 (Tex.Crim.App.1994) (en banc).................... 19
James v. State,
No. 01-06-00795-CR, 2007 WL 2214891
(Tex.App.—Houston [1st Dist.], Aug. 2, 2007, no pet.)
(mem.opinion) (not designated publication) .............................. 8
Katz v. United States,
389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ................ 15
King v. State,
511 S.W.2d 32 (Tex.Crim.App.1974)........................................ 8
McCall v. State,
540 S.W.2d 717 (Tex.Crim.App.1976).................................... 15
Minnesota v. Dickerson,
508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) .... 14, 15
Montgomery v. State,
810 S.W.2d 372 (Tex.Crim.App.1990)...................................... 8
Moore v. State,
694 S.W.2d 528 (Tex.Crim.App.1985).................................... 18
vii
Polk v. State,
738 S .W.2d 274 (Tex.Crim.App.1987)................................... 17
Rylander v. State,
101 S.W.3d 107 (Tex.Crim.App.2003).................................... 19
Smith v. Maryland,
442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) .............. 10
Smith v. State,
91 S.W.3d 407 (Tex.App.—Texarkana 2002, no pet.) ............ 21
State v. Hardy,
963 S.W.2d 516 (Tex.Crim.App.1997).................................... 11
Thacker v. State,
999 S.W.2d 56 (Tex.App.—Houston [14th Dist.]
1999, pet. ref’d) ........................................................................ 19
Thompson v. State,
9 S.W.3d 808 (Tex.Crim.App.1999) ........................................ 18
Trevino v. State,
2007 WL 2806659 (Tex.App.—Amarillo, Sep. 27, 2007,
no pet.) ...................................................................................... 21
Tufele v. State,
130 S.W.3d 267 (Tex.App.—Houston [14th Dist.]
2004, no pet.)............................................................................ 21
Tyler v. State,
137 S.W.3d 261 (Tex.App.—Houston [1st Dist.]
2004, no pet.).............................................................................. 8
United States v. Fisch,
474 F2d 1071 (9th Cir.), cert. denied, 412 U.S. 921,
93 S.Ct. 2742, 37 L.Ed.2d 148 (1973) ..................................... 13
United States v. Ganoe,
538 F.3d 1117 (9th Cir. 2008) ................................................... 14
viii
Villarreal v. State,
935 S.W.2d 134 (Tex.Crim.App.1996).............................. 10, 11
Wall v. State,
184 S.W.3d 730 (Tex.Crim.App.2006).................................... 12
Walter v. State,
28 S.W.3d 538 (Tex.Crim.App.2000) ...................................... 14
Wilkerson v. State,
644 S.W.2d 911 (Tex.App.—Fort Worth 1983, pet. ref’d) ..... 15
Statutes
18 U.S.C. § 2510 (2002) ............................................................................... 13
TEX. CODE CRIM. PROC. ANN. art. 1.14(a) (Vernon 2005) ........................... 20
TEX. CODE CRIM. PROC. ANN. art. 18.20 (Vernon 2015) ........................ 16, 17
TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2011) ........................ 16, 17
TEX. PENAL CODE ANN. § 1.07(a)(1) (Vernon 2011) ................................... 15
TEX. PENAL CODE ANN. § 16.02 (Vernon 2011) .................................... 16, 17
Rules
TEX. R. APP. P. 34.5(c) .................................................................................. 21
TEX. R. APP. P. 44.3 ...................................................................................... 21
TEX. R. APP. P. 44.4 ...................................................................................... 21
ix
ABBREVIATIONS FOR RECORD REFERENCES
Abbreviation The Record
1 RR 2:532 Reporter’s Record, vol. 2, page 532.
2 CR 1:45 Clerk’s Record, vol. 1, page 45.
3 Ant. Br. 5 Appellant’s Brief, page 5.
4 Apx. Ex. 1 State’s Appendix, Exhibit 1.
5 RR 5: Sx. 1 Reporter’s Record, vol. 5, State’s Exhibit 1
x
STATEMENT OF THE CASE
In a consolidated proceeding, Appellant Brodrick Michael
James was tried for three instances of delivery of a controlled substance,
enhanced, which were indicted under Cause Nos. 74207, 74208 and 74209
(RR 3:8). Trial occurred in the 149th District Court for Brazoria County,
Texas, Hon. Terri Holder presiding. Immediately before trial, Appellant
pleaded guilty to each of those charges (RR 3:9). In exchange for
Appellant’s plea and waiver of a pre-sentence investigation report, the State
agreed to waive a jury trial on punishment (RR 3:10). Following a trial to the
court on punishment, Appellant was sentenced to 45 years confinement in
each cause (RR 4:138).
1
ISSUES PRESENTED
At issue is whether the trial court abused its discretion by
refusing to grant Appellant’s request, made on the day of trial, to dismiss his
court-appointed attorney. The Court of Appeals is also asked to consider
whether the trial court abused its discretion by allowing the admission of an
audio recording of an accidental cellular telephone call made by Appellant
(or “butt dial”) to an undercover officer in which Appellant could be heard
speaking to a third party about Appellant’s intent to rob the officer during a
planned undercover narcotics purchase. In a related issue, the Court is asked
to consider whether Appellant’s trial attorney was ineffective by failing to
preserve the Fourth Amendment challenge for appellate review. Finally, the
Court is asked to consider whether the trial court committed error by
limiting Appellant’s appeal to the punishment phase of trial because of
Appellant’s guilty plea.
2
STATEMENT OF FACTS
Appellant sold methamphetamine to an undercover officer with
the Brazoria County Narcotics Task force on three separate dates: May 8,
2014, May 14, 2014, and May 28, 2014 (RR 4:31-32). Prior to each sale,
Investigator Marcos Salinas contacted Appellant on Appellant’s cellular
telephone to arrange a time and place for the transaction at various points
around Brazoria County (RR 4:30-32). The phone calls between Appellant
and the undercover officer were recorded. The sale of the methamphetamine,
which occurred in Inv. Salinas’s vehicle on each occasion, was also recorded
by a hidden video camera (RR 4:32-33). In a fourth methamphetamine sale
between Appellant and Inv. Salinas, however, the substance Appellant
provided tested negative (RR 4:36-37).
During the same time period of the methamphetamine sales,
Appellant indicated he wanted to purchase a kilogram of cocaine from Inv.
Salinas (RR 4:37). This discussion resulted in a “flash” meeting on July 18,
2014, in which Inv. Salinas and two other undercover officers showed
Appellant one kilogram of cocaine in a parking lot in Pearland, Texas (RR
4:38-39, 4:40). This meeting resulted in an agreement in which Appellant
agreed to purchase two kilograms of cocaine for $26,000 each (RR 4:41).
Shortly after the “flash” meeting, however, Inv. Salinas received two calls
3
from Appellant’s cellular telephone. The first was to confirm the terms of
the cocaine sale. The second was an accidental telephone call—or “butt
dial”—from the same phone number (RR 4:41-42). Both conversations were
recorded.
During the second phone call, Inv. Salinas heard Appellant
speaking with an unidentified female in the background (RR 4:43). At about
two minutes into the conversation Appellant said he planned to turn the
cocaine purchase into a “rip-off”—in other words, take the drugs in an
armed robbery (RR 4:44). On hearing this, investigators suspended all future
transactions with Appellant and arrested him (RR 4:44, 4:48). Appellant was
indicted shortly thereafter for possession of a controlled substance with
intent to deliver for the three prior methamphetamine sales. Appellant’s
charges were enhanced with a prior conviction for aggravated robbery that
occurred on April 13, 2008 (RR 4:8-9).
The matter was called to trial on January 26, 2015. Before trial
was set to begin that day, Appellant pleaded guilty to the three possession
charges in Cause Nos. 74207, 74208 and 74209 (RR 3:9). In exchange for
this guilty plea, the State agreed to waive its right to a jury trial on
punishment—as the defendant wanted his punishment to be decided by the
trial court. Appellant waived his right to a pre-sentence investigation report
4
before sentencing (RR 3:10-12). Appellant also pleaded “true” to the
enhancement paragraphs of the indictments, which alleged Appellant had
been previously convicted of aggravated robbery (RR 3:12). Trial then
proceeded to the punishment phase two days later.
During punishment, the trial court considered evidence of
Appellant’s prior robbery conviction in which he used a rifle (stolen about
one year prior to that offense) to rob a local convenience store, striking the
cashier in the head with the butt of the weapon in the process (RR 4:10-13,
4:17, 4:102-04). Appellant evaded capture briefly, hiding in his
grandmother’s attic before being discovered by the police (RR 4:11).
Appellant then—while handcuffed—broke away from the arresting officer
and continued to elude investigators before finally being arrested in Houston
about one week later (RR 4:12).
The defense called Appellant’s father who testified Appellant
had been placed with the Texas Youth Commission from the age of 14 to 16
before being arrested for the aggravated robbery charge after Appellant
turned 17, and served another 5 years of incarceration (RR 4:58-60).
Appellant’s father told the court he hoped the trial court would not sentence
his son to not too much time since Appellant had regretted what he had done
and that this was a “turning point” in Appellant’s life (RR 4:63-64).
5
Appellant also called his maternal aunt and a local pastor before taking the
stand himself in support of his plea for leniency. At the close of punishment,
however, the trial court sentenced Appellant to 45 years confinement on
each case (RR 4:137-38).
6
SUMMARY OF THE ARGUMENT
The trial court did not abuse its discretion in refusing to allow
Appellant to discharge his lawyer on the day of trial when there was no
evidence of bad faith, insincerity, or disloyalty toward Appellant by his
attorney. Further, Appellant did not have a reasonable expectation of privacy
under the Fourth Amendment in his conversation with a third party that was
transmitted to law enforcement accidentally (in what is commonly known as
a “butt dial”) on Appellant’s cellular telephone due to his own carelessness,
neither did the recording of that accidental call violate Texas law. Thus, the
recording was properly admitted. In addition, because Appellant’s Fourth
Amendment challenge is without merit, defense counsel cannot be
considered ineffective for allegedly failing to preserve the issue. Finally,
given Appellant’s guilty plea and agreement with the State to have the trial
court decide punishment without a pre-sentence investigation report, the
court did not abuse its discretion by limiting Appellant’s appeal to the
punishment phase of trial.
7
ARGUMENT
1) The trial court was within its discretion to deny Appellant’s
request to discharge his attorney made on the day of trial.
A trial court’s denial of a defendant’s motion to dismiss counsel
is reviewed for an abuse of discretion. Childress v. State, 794 S.W.2d 119,
122 (Tex.App.—Houston [1st Dist.] 1990, pet. ref’d). An abuse of discretion
occurs if the trial court acts without reference to any guiding rules and
principles or acts arbitrarily or unreasonably. Montgomery v. State, 810
S.W.2d 372, 380 (Tex.Crim.App.1990); Tyler v. State, 137 S.W.3d 261, 266
(Tex.App.—Houston [1st Dist.] 2004, no pet.). Although an accused’s right
to counsel affords him a fair opportunity to secure counsel of his choosing,
the right to obtain counsel of one’s choice is neither unqualified nor
absolute. Childress, 794 S.W.2d at 121 (citations omitted). A defendant also
carries the burden of proving that he is entitled to a change of counsel. King
v. State, 511 S.W.2d 32, 34 (Tex.Crim.App.1974).1
Significantly, the right of a defendant to choose an attorney
cannot be manipulated so as to obstruct the orderly procedure in the courts,
and it must be balanced with a trial court’s need for prompt and efficient
administration of justice. Childress, 794 S.W.2d at 121-22 For example, a
1
See also James v. State, No. 01-06-00795-CR, 2007 WL 2214891 *3 (Tex.App.—
Houston [1st Dist.], Aug. 2, 2007, no pet.) (mem.opinion) (not designated publication).
8
defendant does not have an absolute right to discharge his attorney where the
request is made only five days before trial is scheduled to begin, and the
record does not reflect any bad faith, insincerity, or disloyalty toward
defendant by defense counsel. See id. In the present case, there is no
evidence of any bad faith, insincerity, or disloyalty to Appellant by his trial
counsel.
Appellant’s only complaint to the trial court—made
immediately before trial was set to begin—was that he “didn’t feel
comfortable going to trial with the court-appointed lawyer” (RR 3:7).
Appellant gave no other reason for wanting to discharge his attorney and
hire another. Appellant also told the court that his family was “talking” with
another lawyer and he felt sure they would be hiring that individual on the
same date, but no other evidence was presented to confirm this statement
(RR 3:6-7). Based on the evidence presented, the trial court did not abuse its
discretion in refusing to allow Appellant to discharge his court-appointed
lawyer on the day of trial. Therefore, Appellant’s point of error should be
overruled.
9
2) The recording of Appellant’s accidental call to law
enforcement was properly admitted.
Appellant complains about the admission of a recording of a
conversation between Appellant and a third party, which was recorded by
law enforcement when he accidently called an undercover officer. During
the conversation, the Appellant was heard explaining his intent to rob the
undercover officer during a planned narcotics sale and steal the cocaine that
Appellant was allegedly going to purchase. Appellant argues this audio
recording of his private conversation was obtained in violation of his privacy
rights under the Fourth Amendment of the United States Constitution.
A defendant has standing to challenge the admission of
evidence obtained by a government intrusion only if he had a legitimate
expectation of privacy in the place invaded. Villarreal v. State, 935 S.W.2d
134, 138 (Tex.Crim.App.1996). The accused also has the burden of proving
facts establishing a legitimate expectation of privacy. Id. To carry the
burden, the accused must prove (1) that by his conduct he exhibited an
actual subjective expectation of privacy, and (2) that circumstances existed
under which society was prepared to recognize his subjective expectation as
objectively reasonable. Id.; see also Smith v. Maryland, 442 U.S. 735, 740,
99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Ex Parte Moore, 395 S.W.3d 152,
158-59 (Tex.Crim.App.2013).
10
In considering whether the defendant has demonstrated an
objectively reasonable expectation of privacy, a court examines the totality
of the circumstances surrounding the search, including:
… (1) whether the accused had a property or possessory
interest in the place invaded; (2) whether he was
legitimately in the place invaded; (3) whether he had
complete dominion or control and the right to exclude
others; (4) whether, before the intrusion, he took normal
precautions customarily taken by those seeking privacy;
(5) whether he put the place to some private use; and (6)
whether his claim of privacy is consistent with historical
notions of privacy.
Granados v. State, 85 S.W.3d 217, 223 (Tex.Crim.App.2002); Villareal, 935
S.W.3d at 138. This is a non-exhaustive list of factors, and no one factor is
dispositive. Granados, 85 S.W.3d at 223.
The issue of whether a “subjective expectation of privacy” is
one that society recognizes as being reasonable is a question of law.
Villarreal, 935 S.W.2d at 138 n. 5; see also State v. Hardy, 963 S.W.2d 516,
523 (Tex.Crim.App.1997) (“proper focus, under the Fourth Amendment, is
upon American society as a whole, rather than a particular state or other
geographic subdivision.”). An appellate court “reviews a constitutional legal
ruling, such as whether a search or seizure governed by the Fourth
Amendment occurred in a particular case, under a de novo standard of
review.” Barfield v. State, 416 S.W.3d 743, 746 (Tex.App.—Houston [14th
11
Dist.] 2013, no pet.) (citing Wall v. State, 184 S.W.3d 730, 742
(Tex.Crim.App.2006)).
The question before the Court of Appeals here is whether the
Appellant had a reasonable expectation of privacy in a conversation with a
third party that was accidentally transmitted to law enforcement on
Appellant’s cellular telephone in what is commonly known as a “pocket” or
“butt dial”. This issue appears to be a matter of first impression in Texas,
and has had limited interpretation nationally. However, the U.S. Court of
Appeals for the 6th Circuit recently addressed the issue in Huff v. Spaw, No.
14-5123, 2015 WL 4430466 (6th Cir.) July 21, 2015) (not released for
publication).
a) Appellant did not have a reasonable expectation of privacy
in the accidental call.
Because Appellant placed the accidental call to Inv. Salinas on
his own device, he exposed his statements to law enforcement and,
therefore, failed to exhibit an expectation of privacy with respect to those
statements. Such exposure need not be deliberate, and can be the inadvertent
product of neglect that vitiates any privacy interest protected by the Fourth
Amendment. See Huff, 2015 WL 4430466 *6 (citing California v. Ciraolo,
476 U.S. 207, 214-15, 106 S.Ct. 1809, 90 L.Ed. 210 (1980) (police who
viewed inside defendant’s fenced in property from a location open to the
12
public did not violate defendant’s reasonable expectation of privacy) and
United States v. Fisch, 474 F2d 1071, 1077 (9th Cir.), cert denied, 412 U.S.
921, 93 S.Ct. 2742, 37 L.Ed.2d 148 (1973) (no expectation of privacy to
statements “audible to the naked ear” of police in adjoining hotel room)).
In Huff, the Sixth Federal Circuit held there is no reasonable
expectation of privacy in cellular phone calls accidently made to a third
party. In its discussion of an inadvertent cellular phone call—commonly
known as the case of a “pocket” or “butt dial”—which was at the heart of a
civil claim under the federal wire tap statute,2 the court held,
… a person who knowingly operates a device that is
capable of inadvertently exposing his conversations to
third party listeners and fails to take simple precautions
to prevent such exposure does not have a reasonable
expectation of privacy with respect to the statements that
are exposed to an outsider by inadvertent operation of
that device.
Huff, 2015 WL 4430466 *7. In support of its decision, the court relied on the
plain-view doctrine, reasoning that if a homeowner neglects to cover a
window with drapes, he would lose his reasonable expectation of privacy
with respect to a viewer looking into the window from outside of his
property. Id. At *6 (citing Wright and Ciraolo, supra). The court concluded
the same reasoning would apply to visual and auditory information. Id.
2
See 18 U.S.C. § 2510, et seq. (2002) (Chapter 119. Wire and Electronic
Communications Interception and Interception of Oral Communications).
13
In further support of its holding, the court in Huff considered a
Ninth Circuit case in which law enforcement discovered child pornography
on the defendant’s computer via a peer-to-peer file-sharing program called
“LimeWire,” which the defendant had installed on his computer. See Huff,
2015 WL 4430466 *6 (citing United States v. Ganoe, 538 F.3d 1117 (9th Cir.
2008)). The Sixth Circuit noted that the defendant’s program in Ganoe had a
method to turn off the file-sharing feature, but the defendant neglected to do
so. Ultimately, the 9th Circuit held, “[t]o argue that Ganoe lacked the
technical savvy or good sense to configure LimeWire to prevent access to
his pornographic files is like saying he did not know enough to close his
drapes.” Ganoe, 538 F.3d at 1127.
Similarly recognizing that a person must have a legitimate
expectation of privacy to claim the protection of the Fourth Amendment, the
Court of Criminal Appeals has held when an officer observes contraband
“from a lawful vantage point, there has been no invasion of a legitimate
expectation of privacy and thus no ‘search’ within the meaning of the Fourth
Amendment—or at least no search independent of the initial intrusion that
gave the officers their vantage point.” Walter v. State, 28 S.W.3d 538, 541–
42 (Tex.Crim.App.2000) (quoting Minnesota v. Dickerson, 508 U.S. 366,
375 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993)); see Horton v.
14
California, 496 U.S. 128, 133-35, 110 S.Ct. 2301, 2307, 110 L.Ed.2d 112
(1990) (noting that, if an article is in plain view, neither its observation nor
its seizure involves any invasion of privacy); see also Katz v. United States,
389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (“What a person
knowingly exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection”); Id. at 361 (Harlan, J.,
concurring) (“Thus a man’s home is, for most purposes, a place where he
expects privacy, but objects, activities, or statements that he exposes to the
‘plain view’ of outsiders are not ‘protected’ because no intention to keep
them to himself has been exhibited.”).3
In the present case, Appellant cannot have a reasonable
expectation of privacy in a conversation that was transmitted inadvertently
to law enforcement due to his own carelessness.4 The effect is the same as if
Appellant had participated in the same private conversation at his residence,
in front of an open window, and which was audible to investigators. An
3
See also McCall v. State, 540 S.W.2d 717, 720 (Tex.Crim.App.1976) (“What a person
knowingly exposes to the public is not subject to Fourth Amendment protection”); see
also, e.g., Duhig v. State,
171 S.W.3d 631, 635 (Tex.App.—Houston [14th Dist.] 2005,
pet. ref’d) (no impermissible, warrantless search when he looked through the window on
appellant’s front door and observed marijuana and drug paraphernalia on the coffee table)
and Wilkerson v. State, 644 S.W.2d 911, 912 (Tex.App.—Fort Worth 1983, pet. ref’d)
(holding defendant could have no reasonable expectation of privacy in backyard
marijuana plants visible from the street).
4
See TEX. PENAL CODE ANN. § 1.07(a)(1) (Vernon 2011) (An “act” “means a bodily
movement, whether voluntary or involuntary, and includes speech.”).
15
accused does not have a privacy interest protected by the Fourth Amendment
when that privacy is surrendered by a defendant’s carelessness or neglect.
The facts of this case do not demonstrate the Appellant had a subjective
expectation of privacy that society is prepared to recognize as objectively
reasonable—and neither should the Court of Appeals. Accordingly, the
admission of Appellant’s recorded conversation was not error, and his
complaint should be overruled.
b) The investigator’s recording of Appellant’s conversation
did not violate the Texas wiretap statute.
Appellant further complains the recording of his accidental call
to Inv. Salinas violated Texas law and, therefore, should have been
excluded. Under the penal code, it is an offense when a person “intentionally
intercepts, endeavors to intercept, or procures another person to intercept or
endeavor to intercept a wire, oral, or electronic communication.” TEX.
PENAL CODE ANN. § 16.02(b)(1) (Vernon 2011); TEX. CODE CRIM. PROC.
ANN. art. 18.20 (Vernon 2015).5 Such evidence, if obtained in violation of
state law, may not be admitted against the accused in a criminal case. TEX.
5
Penal Code section 16.02—herein, the “Texas Wiretap Statute”—incorporates
definitions from Article 18.20 of the Texas Code of Criminal Procedure. TEX. PENAL
CODE ANN. § 16.02(a) (Vernon 2011). Appellant argues that, because the recording of the
telephone conversations “constituted an illegal intercept of a wire communication” as
described by TEX. CODE CRIM. PROC. art. 18.20, § 1(3), the content of the conversation
recorded by investigators was obtained in violation of TEX. PENAL CODE § 16.02. The
recording was, therefore, inadmissible under TEX. CODE CRIM. PROC. art. 38.23.
16
CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2011). Because article 38.23 is
mandatory, a judge has no discretion in ruling on the exclusion of evidence
if the evidence was obtained in violation of a state statute or constitutional
provision. Polk v. State, 738 S .W.2d 274, 276 (Tex.Crim.App.1987).
“For purposes of the wiretap statute, an ‘oral communication’ is
one “uttered by a person exhibiting an expectation that the communication is
not subject to interception under circumstances justifying that expectation.”
Allen v. State, No. 08–13–00302–CR, 2015 WL 2183526 *2 (Tex.App.—El
Paso, May 8, 2015, no pet.) (not released for publication) (emphasis
original) (citing TEX. PENAL CODE § 16.02(a); and TEX. CODE CRIM. PROC.
ANN. art. 18.20, § l(2)). The “threshold question for purposes of the wiretap
statute, therefore, is whether the [defendant] had a reasonable expectation of
privacy under the circumstances.” See id.
Because the authority cited above demonstrates that Appellant
did not have a reasonable expectation of privacy in his accidental call (or
“butt dial”) to Inv. Salinas, the Court of Appeals should conclude the call
was not an “oral communication” covered by Section 16.02 of the Texas
Penal Code—thus, the investigator did not violate the statute by recording
Appellant’s conversation. For this reason, Appellant’s complaint that the
recording in dispute was illegally obtained should be overruled.
17
3) Appellant was not prejudiced by any alleged error by his
trial counsel.
In his final issue, Appellant raises an ineffective counsel claim
in an exercise of caution should the Court of Appeals find that his attorney
failed to preserve the Fourth Amendment challenge by proper objection to
the State’s offer of the recording of his accidental cellular call to Inv.
Salinas. To prevail on this claim, Appellant must prove by a preponderance
of the evidence deficient performance and prejudice. Busby v. State, 990
S.W.2d 263, 268 (Tex.Crim.App.1999). In evaluating such a complaint, an
appellate court looks to the totality of the representation and strongly
presumes counsel’s competence. Id.; Moore v. State, 694 S.W.2d 528, 531
(Tex.Crim.App.1985). An allegation of ineffectiveness must also be firmly
founded in the record, and without the required showing of deficient
performance or sufficient prejudice, the presumption of reasonable counsel
will not be overcome. Thompson v. State, 9 S.W.3d 808, 814
(Tex.Crim.App.1999).6
Because Inv. Salina’s recording of Appellant’s accidental call
does not run afoul of the Fourth Amendment, the failure of defense counsel
to preserve this particular objection cannot form the basis of an ineffective
6
For purposes of this appeal, the State does not argue trial counsel failed to
preserve error on this point.
18
assistance of counsel claim. See Bourque v. State, 156 S.W.3d 675, 677
(Tex.App.—Dallas 2005, no pet.) (counsel not ineffective in failing to object
to unobjectionable documents); Thacker v. State, 999 S.W.2d 56, 67
(Tex.App.—Houston [14th Dist.] 1999, pet. ref’d) (counsel not ineffective in
failing to make meritless objection).
Furthermore, the record is silent with respect to why trial
counsel did not raise a Fourth Amendment challenge to the recording, and
the Court of Appeals should not speculate on what her trial strategy might
have been by not objecting. See Jackson v. State, 877 S.W.2d 768, 771
(Tex.Crim.App.1994) (en banc) (silent record contained no evidence to rebut
presumption of reasonable professional judgment by trial counsel); see also,
e.g., Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App.2003) (silent
record will not support ineffective assistance of counsel claim); Ex parte
Okere, 56 S.W.3d 846, 856-57 (Tex.App.—Fort Worth 2001, pet. ref’d)
(overruling ineffective assistance claim where record silent as to why
counsel failed to contact or subpoena witnesses). Thus, Appellant’s
ineffective assistance claim should be overruled.
19
4) Appellant retained the right to Appeal for both guilt-
innocence and the punishment phases of trial.
Shortly before a jury panel was scheduled to be brought into
court, Appellant entered a plea of “guilty” to all charges (RR 3:9) (CR
000020-21). The plea was made without a recommendation from the State
on punishment. Instead, the parties agreed, both orally and in writing, that
the trial court would determine punishment and that there would be no pre-
sentence investigation ordered (CR 000023). Upon completion of trial, the
court limited Appellant’s right to appeal as to punishment only, and prepared
a certification of Appellant’s right to appeal in line with this finding.
In criminal cases, a trial court is required to enter a certification
of a defendant’s right of appeal in every case that it enters a judgment of
guilt or other appealable order. See TEX. R. APP. P. 25.2(a)(2). Rule
25.2(a)(2) limits an appellate court’s jurisdiction over appeals from plea-
bargained convictions. However, these limitations do not apply to
convictions from open pleas of guilty. Dears v. State, 154 S.W.3d 610, 613
(Tex.Crim.App.2005).
A defendant in a noncapital case may waive any rights secured
him by law. See TEX. CODE CRIM. PROC. ANN. art. 1.14(a) (Vernon 2005).
However, in the absence of a plea agreement regarding sentencing, a pre-
sentence waiver of the right to appeal is unenforceable. See Smith v. State,
20
91 S.W.3d 407, 408-09 (Tex.App.—Texarkana 2002, no pet.) (citing Ex
parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977)). The rule stems
from a principle that if a defendant does not know what his sentence will be
at the time he enters his plea, any waiver of the right to appeal cannot be
made knowingly, voluntarily, and intelligently. Thomas, 545 S.W.2d at 470.
In the event that a defendant enters a waiver of his right to
appeal before he is aware of the consequences of his plea, the waiver is
considered invalid. Tufele v. State, 130 S.W.3d 267, 270 (Tex.App.—
Houston [14th Dist.] 2004, no pet.). In the present case, the trial court’s
certification limits Appellant’s right of appeal to the punishment phase only
(Apx. Ex. 1). Under the facts presented, however, the State agrees that the
jurisdiction of the Court of Appeals extends to all points of error raised by
Appellant.7
7
A court of appeals may review the record to determine whether the trial court’s
certification of Appellant’s right of appeal is defective and, if necessary, to obtain another
certification from the trial court. See, e.g., Trevino v. State, 2007 WL 2806659 *2
(Tex.App.—Amarillo, Sep. 27, 2007, no pet.) (citing Dears, 154 S.W.3d at 614-15; TEX.
R. APP. P. 34.5(c); 37.1). A defective certification includes a certification that is correct in
form, but, when compared with the record before the court, proves to be inaccurate. Id.;
Dears, 154 S.W.3d at 614. If it cannot be determined from the record whether the trial
court’s certification of Appellant’s right to appeal is accurate, and thus the Court cannot
determine its jurisdiction over the appeal, the Court can choose to abate and remand this
case to the trial court for re-certification of appellant’s right of appeal. See TEX. R. APP.
P. 34.5(c), 44.3, 44.4; Dears, 154 S.W.3d at 614.
21
CONCLUSION
The trial court was within its discretion to deny Appellant’s
request to change attorneys on the day of trial. Nothing indicated any
apparent conflict between Appellant and his court-appointed attorney, and
nothing supported Appellant’s testimony that he might retain other counsel
in the near future. Further, Appellant had no reasonable expectation of
privacy under the Fourth Amendment in his accidental (or “butt dial”) to law
enforcement—thus, the recording of this telephone call was properly
admitted and his trial counsel cannot be considered ineffective if the Court
of Appeals finds the Fourth Amendment challenge was not preserved for
appellate review. Finally, although the trial court may have limited
Appellant’s right of appeal to the punishment phase of trial, review of the
record by this Court should indicate that its jurisdiction extends to any points
of error raised regarding the guilt-innocence phase of trial as well.
22
PRAYER
For these reasons, after considering all issues raised, the State
asks the Court of Appeals to overrule the Appellant’s issues on appeal and
affirm the trial court’s judgment.
Respectfully submitted,
/s/ Jeri Yenne
_____________________________________
Jeri Yenne
State Bar No. 04240950
Brazoria County Criminal District Attorney
/s/ Trey D. Picard
_____________________________________
Trey D. Picard
State Bar No. 24027742
Assistant Criminal District Attorney
111 East Locust St., Suite 408A
Angleton, Texas 77515
(979) 864-1233
(979) 864-1712 Fax
treyp@brazoria-county.com
ATTORNEY FOR THE APPELLEE,
THE STATE OF TEXAS
23
CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and
9.5(b), (d), (e), I certify that I have served this document on all other parties,
which are listed below, on August 10, 2015:
Keith G. Allen By:
State Bar No. 01043550 personal delivery
Law Offices of Keith G. Allen, PLLC
2360 CR 94, Suite 106 mail
Pearland, Texas 77584 commercial delivery service
(832) 230-0075
electronic delivery / fax
(832) 413-5896 Fax
Keith@KGAllenLaw.com
Attorney for the Appellant
/s/ Trey D. Picard
_____________________________
Trey D. Picard
Assistant Criminal District Attorney
24
CERTIFICATE OF RULE 9.4 COMPLIANCE
I certify that this electronically filed document complies with
Rule 9.4 of the Texas Rules of Appellate Procedure and that the number of
words is: 5,326.
/s/ Trey D. Picard
_____________________________
Trey D. Picard
Assistant Criminal District Attorney
25
APPENDIX
Trial Court’s Certification of Defendant’s Right to Appeal ...........................1
26
000028
Brodrick Michael James v. State
Combined Opinion