In a majority decision, a criminal appeals court in the state of Texas has reversed a lower court and upheld the conviction of a school board member who encouraged the interception of an oral communication between a basketball coach and his team and then shared copies of it with her fellow school board members.
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. Wendee 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 Feb. 7, 2012, the Argyle High School girls’ basketball team traveled to Sanger, Texas 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 and an audio recording of Townsend’s post-game speech.
In March 2012, Long showed the recordings, which were on her computer at work, to her assistant principal. Later that month, Long mailed the recordings to the other members of the 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 Tex. Penal Code Ann. § 16.02(b). 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. The jury agreed, finding Long guilty. The trial court sentenced Long to five years confinement, probated for three years, and assessed a $1,000 fine.
Long successfully appealed the ruling. After she obtained relief, the state appealed.
The majority wrote that the definition of “oral communication” found in Article 18.20 of the Code of Criminal Procedure “incorporates the reasonable expectation of privacy test as set out in Katz and Berger.”
Berger v. New York and Katz v. United States
“Eavesdropping is an ancient practice which at common law was condemned as a nuisance,” wrote the court. “At one time, the eavesdropper listened by naked ear under the eaves of a house or at its windows or beyond its walls seeking out private discourse. In 1967, when the United States Supreme Court decided Berger, the Court recognized that technological advances had yielded sophisticated electronic devices capable of eavesdropping under almost any condition by remote control. At that time, the Court was concerned with devices suitable to an Ian Fleming novel such as miniature microphones (no bigger than a postage stamp) and “electric rays” beamed at walls or glass windows to record voice vibrations. Doubtless the Court could not even imagine the eavesdropping potential in the modern cell phone.
“Berger was the go-between for the principal co-conspirators in a conspiracy to bribe the Chairman of the New York State Liquor Authority. Police obtained two different ex parte orders under the New York ‘eavesdropping’ statute to plant listening devices in the offices of the attorneys for Berger and his co-conspirators. After some two weeks of eavesdropping, evidence of the conspiracy was uncovered, and New York charged Berger based solely upon his conversations with the attorneys in their respective offices.
“The Supreme Court struck down the New York statute because it effectively authorized a ‘general warrant’ for the collection of evidence after a trespassory invasion of a home or office. Though the statute required police to obtain an order from a neutral and detached magistrate before placing the listening device, it did not explicitly require a showing of probable cause, only a showing of a ‘reasonable ground.’ And, even assuming that a showing of ‘reasonable ground’ equaled a showing of probable cause, it also failed to require a showing of particularity as to the crime under investigation, the place to be searched, or the person or things to be seized. This need for particularity was especially great in the context of eavesdropping because of its intrusion upon privacy. According to the Court, the New York Statute authorized ‘indiscriminate use’ of an electronic listening device.”
The appeals court then turned to the high court’s decision, several months later, in Katz v. United States.
“The United States charged Katz with taking bets in a public telephone booth in Los Angeles from gamblers in Miami and Boston. FBI agents obtained key evidence in the case by attaching an electronic listening and recording device to the outside of the booth and recording Katz’s end of the conversation. At trial, the prosecution introduced these recordings, over objection, based upon the theory that the recording did not violate the Fourth Amendment because the agents had not physically intruded into the public telephone booth occupied by Katz.
“The Court reversed, holding that the recording of Katz’s side of the conversation, even overheard from outside a public telephone booth, violated the Fourth Amendment. At the outset, the Court rejected the contention that the telephone booth at issue was less deserving of Fourth Amendment protection simply because Katz was still visible to the public while inside it.
“But what he sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.
“Consequently, the Court held that the FBI agents had violated Katz’s privacy even without a physical intrusion into the public phone booth to record his conversation.”
Applying the cases, the appeals court wrote that “under the circumstances presented in this case, there was sufficient evidence for the jury to find that C.L. intercepted an ‘oral communication’ because Coach Townsend had a subjective expectation of privacy that society is prepared to regard as objectively reasonable when he uttered that communication within the girls’ locker room. Consequently, there was sufficient evidence supporting the jury’s verdict that Appellant had violated Section 16.02 of the Texas Penal Code for her part in encouraging the interception of that oral communication and sharing copies of it with the school board. We reverse the court of appeals and affirm appellant’s conviction.
Wendee Long v. The State of Texas; Ct. Crim. App. Tex.; El Paso; NO. PD-0984-15, 2017 Tex. Crim. App. LEXIS 589; 6/28/17
Attorneys of Record: (FOR APPELLANT) Bruce Anton, Sorrels, Udashen & Anton, Dallas, TX. (FOR STATE) John R. Messinger, Assistant State Prosecuting Attorney, Austin, TX.