Castillo v. State, 810 S.W.2d 180

Castillo v. State

810 S.W.2d 180

Tex. Crim. App.

1991

Check Treatment

*1 Josephine CASTILLO, Ysidro Castillo

Sr., Morones, and Jose Texas, Appellee.

The STATE of

Nos. 339-89 to 341-89. Texas,

Court of Appeals Criminal

En Banc.

Oct. 1990.

Rehearing Overruled June

181 23, 1987, County Ellis dis- On March County attorney and the Navarro trict application attorney made criminal district Thurman, B. 147th Mace to the Honorable County, for Travis district Ellis authorizing wiretaps on the orders Nickey Rutledge and telephones of County Thurman, Judge Carolina Castillo. empowered to order elec- judge lawfully Administra- “intercepts” in the Third tronic District, issued tive Judicial County although Ellis requested, orders as adjacent Administra- First is located Tex.Gov’t Code tive District. See Judicial Hagler, Douglas D. Mulder and John H. 74.042(b). listening post The for § Dallas, appellants. for however, in wiretaps, was located Navarro Batchelor, Atty., Patrick Dist. Corsica- C. in Third Administra- County, which is Prosecutor, Vollers, na, Sp. and Robert Jim Code tive District. See Tex.Gov’t Judicial Austin, Huttash, Atty., for the State’s 74.042(d). 31, the On March Navarro § State. attorney requested County criminal district Judge Thurman an or- from obtained authorizing wiretap, this time der third appel- County telephone of on the Navarro probable Josephine lant Castillo. OPINION ON APPELLANTS’ PETITION wiretap third relied affidavit for the cause FOR DISCRETIONARY REVIEW part in on information derived from CAMPBELL, Judge. wiretaps. first two Castillo, Appellants Josephine Ysidro 13, 1987, the Texas April officers of On Sr., and tried Castillo Jose Morones were Safety Department tape-recorded Public jointly guilty found the offense of acquired through the third a conversation engaging organized activity by criminal Appendix. The contents wiretap. See conspiring Flavio with Gilberto Salinas and admitted in evi- that conversation were Quintanilla pounds to deliver than more objec- their appellants’ trial over dence pounds but less than 2000 of marihuana. Appellants argued that the contents tion. 71.02(a)(5). jury Tex.Penal Code as- § suppressed of the conversation should be punishment sessed for each of Castillos 18.20, (wiretap Article statute under § years $100,- imprisonment for 75 and a rule) exclusionary because the conversation punishment 000 fine. Morones’ was as- unlawfully through an autho- acquired was jury at imprisonment sessed appel- wiretap. specifically, rized More years $100,000 and a fine. The Tenth 18.20, argued that under Article lants Waco, sitting Appeals, Court of affirmed power to Thurman no Judge had 495. We all three convictions. S.W.2d County wiretaps Ellis be- authorize granted appellants’ joint petition for discre- county Judge Thur- is not in cause review, pursuant Rule of tionary district; to Texas judicial man’s administrative 200(c)(4),in order to Appellate Procedure from the Ellis Coun- all information derived appeals tainted; the court of determine whether that all infor- ty therefore correctly interpreted wiretap wiretap County authoriza- from the Navarro mation provision tion contained because that was also tainted part Texas Proce- information 3 of the Code Criminal based on authorized wiretaps. appeals Ellis Concluding dure. that the court of obtained from the Giordano, interpretation that the error erred its but See United States (1974) harmless, 40 L.Ed.2d we will affirm 94 S.Ct. (under III, of ini- faulty Title authorization appeals. of the court of application tial wiretap exigent invalidated exten- Since circumstances exist- sion order and tainted evidence derived ed, prosecutors were authorized un- order); from extension United States v. 18.20(3)c apply der Article to the Third (9th Cir.1977) Spagnuolo, 549 F.2d Judicial District for the order[s]. *3 (when wiretap evidence from # 1 is tainted Id. probable and used as cause to obtain wire- #2, tap #2 evidence from is also petition In discretionary their for Carr, tainted); J. Law The Electronic review, appellants argument reiterate their of 6.4(b)(2) (1990) Surveillance at 6-95 § April 13, 1987, that the contents of the (“Where is later that determined telephone supp conversation should be original [wiretap] improperly order was re- brief, In reply its ar State ressed.1 issued, executed, quested, or and the evi- gues appeals correctly that the court of dence derived is suppressed, any therefrom interpreted Article 3.2§ subsequent eavesdropping orders based on Congress passed In 1968 Title III of the original information derived from the sur- tainted.”). may Omnibus Crime Control and Safe veillance be Streets Act, reg- 18 U.S.C. Title III 2510-2521. §§ appeals, relying The court upon Waco of ulates electronic and mechanical inter- State, 312, Evans v. 252 Ga. 314 S.E.2d 421 wire, oral, ception of and electronic commu- (1984), 18.20, 3(b), held that under Article by government pri- nications officials and electronically a telecommunication is “in- tercepted” vate citizens. Title III also authorizes it is wherever “heard and re- by corded” personnel, legislatures law enforcement state to enact electronic sur- County that since the Ellis conversations long veillance statutes as those as statutes were heard and recorded the Navarro subjects investigations of “afford at least County listening post, “Judge Thurman protection as improper intercep- much from a proper judge was intercept to issue the protected tion of communications as is af- The S.W.2d 505. court order[s].” Dix, forded the federal G. [statute].” appeals of held in the alternative that exi- The 1981 Texas Electronic Surveillance gent circumstances existed to warrant Statute, (1981). T.Mar.L.Rev. Judge Thurman’s two first orders Legislature passed the Texas its 18.20, 3(c): under Article statute, own electronic surveillance [original] application The stated the lo- 18.20 of the Texas Code Criminal Proce- of. telephones cation of the in Ellis 1(3) 3(a)- April dure. On communities; §§ were small that 30 officers (e) part: of Article 18.20 read in relevant required them;

would maintain danger that there was of compromise of 1(3) “Intercept” means Sec. the aural investigation monitoring if occurred acquisition of a or contents wire of County; in Ellis and that there close through oral communication of use parties association between two of the mechanical, electronic, or other de- County police be monitored and an Ellis vice. officer, and there information con- cerning “pay off” of the Sheriff. sense, Appellants complain argues allegedly

1. also 2. State if "[i]n all The also evidence case in this from information proba- flowfed] from tainted information deleted [unlawfully obtained from use autho- wiretap, ble cause affidavit for the third Appellants’ electronic surveillance.” rized] probable sup- affidavit still establishes cause to Thus, interpret appellants' Brief at if 7. we port wiretap. See v. Brown correctly, they contending brief are that all of (Tex.Cr.App.1980). S.W.2d 572 does State sup- the State’s evidence should have been us, however, any particular pages not cite to However, pressed. appellants because do not allegations 21-page or the 53 affidavit any place direct us record where this pages incorporated of other affidavits into it court, argument made to the trial we con- circumstances, reference. Under these we con- argument inadequately sider the briefed and argument inadequately sider briefed 74(f) Tex.R.App.P. will not it. address See will not address it. Klein, 154 Tex.Crim. 3(a) presiding judge of the courts. State Sec. (App.1949). ap- shall appeals court criminal ... S.W.2d judge from each of the point one district cases which reveals two Our research of this judicial administrative districts3 courts, pat- facing similar factual appellate compe- as state to serve ... terns, identical “aural interpreted the have jurisdiction tent within that administra- used in the federal acquisition” language judicial tive district.... upon by the In the case relied statute. (b) Except provided as Subsection State, supra, a appeals, Evans court (c) section, judge of com- this Georgia superior whose state petent jurisdiction the administra- Circuit the Atlanta Judicial jurisdiction was *4 judicial pro- the tive district in which 23 of wiretaps telephones, on 41 authorized may be made posed interception will Dis- in the Atlanta Judicial were not which application on for authorization act argued that Georgia The defendant trict. intercept or oral communications. wire taps obtained from the outside evidence (c) jurisdic- judge competent of If the suppressed should be judge’s the district judicial district tion for an administrative judge power had no under because exigent or unable to serve or is absent wiretaps to authorize out- if federal statute exist, may application circumstances jurisdiction. The his territorial Geor- side juris- judge competent be made to the of held, Supreme though, be- gia Court adjacent diction in an administrative listening post, where all the cause the district_ judicial recorded, tapped were communications 1, 1981, District, R.S., superior Leg., of ch. in the Atlanta Judicial Act June 67th 275, 729, jurisdiction un- court had territorial 1981 Tex.Gen.Laws amended 16, 1989, all 41 Leg., R.S., eh. the federal statute to order wire- Act of June 71st der held, effect, taps. that under & 1989 Tex.Gen.Laws 4783 The Court §§ statute, is (emphasis added). The a communication definition of “inter- the federal is “aurally acquired” place at the where it cept” essentially was taken verbatim from 2510(4).4 by law enforcement heard and recorded U.S.C. § personnel. task Our initial is to ascertain the Nelson,

meaning 837 F.2d acquisition” of the terms “aural In United States denied, 1(3) (11th Cir.), “interception” as cert. used §§ 3(b). (1988), the interpretation In the these 102 L.Ed.2d 58 of sec 109 S.Ct. must, tions, course, attempt to effec reached a different conclu we of Eleventh Circuit There, “purpose” state issued tuate the collective “intent” or sion. a Florida wiretap Legislature. telephones for several with Camacho v. orders district, listening (Tex.Cr.App.1989). may although post his S.W.2d 431 We legislative history taps his district. consider the of stat for the was outside argued wiretap evi consequences any ute as as the defendant that all well suppressed should because it particular construction. Tex.Gov’t Code dence 311.023(3) (5).5 authorizing judge’s presume & We must recorded outside §§ held, Legislature how that the intended a reasonable district. Eleventh Circuit 311.021(3). ever, ‘intercept’ fed Code Fi that “the term result. Tex.Gov’t § [in 1(3) nally, wiretap from as it relates ‘aural because was borrowed eral statute] § statute, place a appropri acquisition’ refers where the federal is initially regard is obtained ate for us consider construction communication the communication is ulti- placed upon the federal statute other less mechanical, judi- (Emphasis or other device.” add- 3. Texas is divided into nine administrative “regions", ed.) or cial districts as current statute 74.042(a). § reads. See Tex.Gov't Code Act, 5. The Code Construction Tex.Gov’t Code statutory "intercept” In definition of 4. 311.001-311.032, applies to Article 18.20. §§ changed acquisition to “the or aural other 311.002(032). See Tex.Gov’t Code wire, oral, the contents electronic com- electronic, through munication the use of an mately heard 837 F.2d at Court of Criminal Appeals of district one [or recorded].” judge from each judicial administrative dis- applications trict to hear for electronic sur- Thus, the two courts that have con- veillance within House that district.’’ meaning acquisition” sidered the of “aural Comm, Crim.Juris., Analysis, on Bill Tex. in similar situations have reached conflict- (1981) H.B. 67th Leg., (emphasis R.S. ing answers. added). reading A “common sense” view, 3(b) our language of § bill analysis indicates the relevant lo- plainly contemplates territorial restriction. judicial cation purposes for authorization is Only judges may certain issue listening post that of the rather but only orders and then if the communications where the wiretap physically device is lo- question “aurally acquired” are to be cated. within their respective jurisdictions. The cited, that, For the reasons we hold of appeals Legislature’s held that the the purposes of Article a com- use of the “aural” word means that a com “intercepted” munication is wire- where the “acquired” munication place at the tap placed. is physically device In this case actually it is *5 heard or recorded the County devices for the Ellis personnel. law enforcement Professor Dix telephones physically placed were in Ellis explained, however, has that lan “[t]his County. guage, identical to that in the federal stat ute, [only] is apparently impose intended origi We hold also that the State’s no limitation upon the use of devices such wiretap applications nal failed to demon registers pen as that enable law enforce exigent strate warranting circumstances ment officers to determine the numbers Judge original Thurman’s of issuance the telephone called from a orally but not to 3(c). intercept orders under The circum acquire the ‘contents’ of conversa [sic] prosecutors stances cited the in their Dix, tions.” G. 7 T.Mar.L.Rev. original wiretap simply applications were If the Waco appeals’ interpreta- court of i.e., exigent; they why not failed to show 1(3) 3(b) tion of upheld, and then a §§ possible appropriate not to ask the wiretap at any in location Texas could be judge in the First Administrative Judicial authorized of the any authorizing nine County District to authorize the Ellis wire because, judges. This with is so modern that, taps. follows present It on the facts technology, communications a listening ed, Judge authority Thurman had no post can be established hundreds of miles issue intercept the orders for the Ellis place from the under surveillance. Under telephones; that the information then, appeals’ the court of holding, law intercepts tainted; derived from those enforcement officials would free to and that the from the information derived “shop” sympathetic for a judge from which intercept, including April 13,1987, third the an obtain order. This would conversation, similarly tainted and effectively destroy the territorial restric- should not have been admitted evidence. apparent on tiveness the face of the stat- ute. We must now determine whether April the of admission the conver legislative history

The relevant of Article sation constituted reversible error. Rule find, such have as we been able to as 81(b)(2) the Appellate as of Texas Rules of shopping consequences well the forum provides appellate an appeals’ interpretation of Procedure that court of of 1(3) a criminal not lead us case need “reverse the to conclude that §§ interpretation that under appellate is unreasonable review [if] probably beyond does reflect court determines a the intent of the reasonable Legislature. analysis prepared bill doubt that error made no contribution (later 18.20) Bill House punishment.” states in to the conviction or part 3(b) “[pjrovides relevant for the When the error to improperly relates ad designation by presiding judge evidence, of the mitted the test “is not whether searched, van was Shortly after without have been had the conviction could received, for, and evidence, but, in- asked D.P.S. officers improperly admitted search his resi- consent to Jose Morones’ pos- stead, is a reasonable is whether there storage storage shed. dence and of evidence complained sibility that boxes found 37 U-Haul the officers shed might the conviction have contributed containing marihuana. State, assessed.” Green punishment (Tex.Cr.App.1987). 727 S.W.2d evening April D.P.S. early In the probable impact of the Consideration search warrant at the a officers executed on the minds admitted evidence improperly Sr., Josephine, Ysidro residence. Castillo average jurors is essential to such present were when Salinas Gilberto 683 S.W.2d 411 inquiry. Gauldin Found was executed. warrant (Tex.Cr.App.1984). $7,212 in cash residence were: around the $109,000 in cash in Josephine’s purse; pros- testified for the Eighteen witnesses reg- automobile trunk of a Cadillac guilt/innocence phase ecution $70,000 cash buried Josephine; istered to trial; testified for the defense. The none $499,000 bed; in cash buried in a flower fol- witnesses established the prosecution’s doghouse; small of mari- a amounts under 22, 1987, lowing: January On Linda McAl- in a in a van and workbench drawer huana Depart- an officer of the lister contacted residence; and written barn next to Safety him and notified ment Public drug ledger appeared to be notes “that large transported she had amount found, in mas- Also the residence’s notes”. “organization” for an of individ- marihuana bedroom, of un- ter were numerous notes *6 uals, appellant one of whom was Ysidro many involving per- specified transactions p.m., April Castillo Sr. At 2:23 D.P.S. $554,840. Fi- high as sons and amounts as officers, acting pursuant to the pockets were found nally, in one of Salinas’ intercepted previously, order discussed a corresponded to weights which records of telephone call from Castillo to the Chris in found Morones’ weights of the boxes par- rural of his Navarro residence storage shed. ents, appellants Josephine and Ysidro Cas- difficulty concluding that the We have no conversation, telephone tillo Sr. That in erroneous admission evidence case, which is the focus of this led the beyond was harmless April 13 conversation officers to believe that “there would D.P.S. appellants’ a as to convic- reasonable doubt something happening day the next ... conversation, in when taken tions. around noon.” isolation, any way incriminating, not in was April On D.P.S. surveilled the officers of all the State’s evi- the context residences, Castillo and Morones located dence, how aver- quite it is difficult see approximately Blooming miles two south of thought the conver- age jurors could have Grove, ground from the and from the air. diffi- significant. We also have no sation The Morones residence was across the road concluding beyond a reasonable doubt culty p.m. residence. At 1:55 a from the Castillo did admission of the conversation that the U-Haul truck left the Morones residence punishments as- contribute to the not residence, to the Castillo and went any did not sessed. The conversation three from an adult male unloaded boxes gravity appellants’ way increase the p.m. Dodge At 1:59 a van left truck. poorer place them a crimes or otherwise and headed south. the Castillo residence light. high- p.m., a approximately At 2:10 D.P.S. appeals the court of van,

way patrolman searched the which affirmed. stopped cemetery had in Navarro County. The driver of the van was Flavio TEAGUE, J., concurs the result. Quintanilla. The van was found to contain marihuana, J., weigh- CLINTON, opinion of the joins the three U-Haul boxes of merits, remand the ing pounds. on the but would approximately 125 Court Appeals any that if cause to Waco Court for a CHRIS: And there chance help analysis you harm could him with one. the first instance. YSIDRO: Ah-ha. STURNS, J., participating. know, said, you he CHRIS: And good. job was APPENDIX YSIDRO: Ah-ha. Intercepted Exhibit No. 10A: State’s tele- you help CHRIS: But if could him with one phone April conversation of be- you give was all need to because that parents, his tween Chris Castillo and Jo- me_ just telling he him. And sephine and Ysidro Castillo Sr. Ralph just ago. called me a little while couple CHRIS: No. But I called a YSIDRO: Uh. Nobody times. answered. boy says, white “Yeah!” CHRIS: The Well, JOSEPHINE: we here were inside YSIDRO: Uh. (Inaudible) house. But it rained so know, wanted, CHRIS: he he wanted You up much that it messed line or just complete job, to do one too. something you.... because when I YSIDRO: Ah-ha! trying to tax call the office ... quick one, you one CHRIS: Just know? CHRIS: Ah-ha! me, then I Curly And called tried just hung JOSEPHINE: ... and I had (Inaudible) to call over there.... up.... I them ‘cause asked two ladies phone just ringing Then the been for the number and ... ringing. through. I could get never CHRIS: Ah-ha! YSIDRO: He’ll call while. No. after give JOSEPHINE: ... she me the number (Inaudible) had CHRIS: Yeah. He told me in Waxahachie. call, try you you tell know. To Ah-ha! CHRIS: call him about noon. hung JOSEPHINE: And But I then.... things But the are to un- YSIDRO: Yes. phone, picked I up up, and then will he load the material. Where see? I tried Somebody to dial out.... *7 why he That’s doesn’t want to. was on the line. But CHRIS: Yeah. ... Ah-ha! CHRIS: YSIDRO: But.... Johnny, JOSEPHINE: It was Carolina’s said, he, he CHRIS: ... later he said brother. bring that he a small he told us would CHRIS: Who? John? Only truck over there. with the go to said, “I JOSEPHINE: Ah-ha! He was hav- one. ing get lot of your trouble to line.” Uh, I don’t think YSIDRO: so! (Pause) noise) (Background so, I think CHRIS: don’t either. YSIDRO: Hello. Ah, They go.... no. YSIDRO: doing, you CHRIS: What are Dad? that, it will CHRIS: But if works like Nothing, just YSIDRO: son. I finish arriv- Still_ alright. Because the white ing from Waxahachie. and boy said that he would come send Curly you? CHRIS: Has called I, All in But I know everything. full. No. YSIDRO: everything. he wants to see Because he called me this CHRIS: morn- Me, YSIDRO: Ah-ha. too! We have ing. haven’t, to.... we haven’t done We YSIDRO: Ah-ha. anything here the ranch now. call trying CHRIS: I’ve been to over there CHRIS: Yeah! he he going

because told me that they If want with the YSIDRO: to come you. to talk to light. payment of Oh. YSIDRO: CHRIS: Yeah. person He told CHRIS: me a had called. Well, going I’m for Chris YSIDRO: to wait call_

YSIDRO: Ah-ha. to Or that one. everything him and got hold of He CHRIS: somewhere, then him and met go there. going I to over Okay. CHRIS: truck, gave he got out of I when YSIDRO: Good. running. He left up. well, talk about to (Inaudible) ... CHRIS: No, man! YSIDRO: (Sighs) yesterday. happened what fence, jumped he Then Yes. CHRIS: man? happened, What YSIDRO: him, Ralph ... after and I went The, the Puer- Oh, nothing much. CHRIS: car so he in a little (laughs) ... went you I told about.... Rican that couldn’t see.... Ah-ha. YSIDRO: change) tape (Gap due Rick El ... ... CHRIS: him, just sit down I “Let’s told CHRIS: Ah-ha! YSIDRO: telling me of talk,” kept and he yesterday. found him We CHRIS: everything. his car and they stole how found him? You YSIDRO: The hardhead. bullshit. That’s YSIDRO: his Because someone stole Yeah! CHRIS: while. Well, you in a little I’ll see CHRIS: car. Okay! YSIDRO: No, man! YSIDRO: Okay! CHRIS: money in He had all of the Yes. CHRIS: you. Okay. I’ll see YSIDRO: says. That’s what he the car. Okay. Bye. CHRIS: Oh, that’s bullshit. YSIDRO: McCORMICK, Presiding Judge, But.... Yeah. CHRIS: concurring in part dissenting you Did he owe a lot? YSIDRO: only. the 37 you Do remember of CHRIS: Ha? V.A.C.C.P., Section pipe? feet of “only part provides Ah-ha! YSIDRO: administra- for the competent jurisdiction But two of those. CHRIS: proposed in which judicial district tive mine, they pay And then didn’t YSIDRO: may act on an be made interception will either? authorization application for already paid They had Ha? Yes. CHRIS: The critical or oral communications.” wire yours. proper judge regarding the language Oh, hard- that’s bullshit! That YSIDRO: intercept order is “in which issue the head. made.” will be interception proposed night. I him last Yeah! But found CHRIS: added.) At the time (Emphasis Uh, any- why he call or didn’t YSIDRO: in this case intercept order signed the *8 thing? aural as “the “intercept” was defined term thing. He hadn’t No. That’s the CHRIS: or oral of a wire acquisition of the contents he said he was afraid. called because of an elec- through the use communication they car with all of Because stole his 1981 tronic, or other device.” mechanical in the car. money the (now 729, 275, see sec. 1 ch. Tex.Sess.Laws hardhead. That’s bullshit. The YSIDRO: 1(3), V.A.C.C.P.). 18.20, Section But he showed us where “intercept” Yeah! CHRIS: definition of Substituting the got 3(b) in touch because he never he lived “interception” Section the word nothing. with us or only judge the provides that that section ” the where “contents Uh. “in" the district YSIDRO: “aural[ly] ac- will be the communication finally last finally, then there And CHRIS: heard) (i.e. authorized to issue is quired]” you where. Do night we found out meaning diseerna- other is the order. No Mike? remember ble. YSIDRO: Uh-huh! boy? construing the Indeed, The white

CHRIS: case law most wiretapping counterpart1 to our federal YSIDRO: Uh-huh! as 18 U.S.C. Act codified and Safe Streets Crime Control Title III of the Omnibus 1. See 188 interprets the acquisi phones County)

statute term “aural located Fulton but where judge tion”—as to which has telephone relates au the contents the calls—the aurally thorization issue orders—to conversations —were heard or ac- quired.” Stynchcombe, Adams mean where the Cause actually communication is C84-2312A, (N.D. slip op. 8-10, pp. heard No. or where it is recorded. For exam Ga., 5, 1985)2 (emphasis delivered March ple, in Evans v. 252 Ga. 314 original) denied, grounds on other cert. 469 S.E.2d U.S. 105 affirmed nom., (1984), Lankford, sub Adams v. 788 F.2d 83 S.Ct. L.Ed.2d 50 the Fulton (11th Cir.1986). County Superior judge Court authorized wiretaps. taps several Some of these were by The same Geor- conclusions made County. located outside of Fulton gia Supreme Court and the District Court calls, however, all by were monitored Georgia for the Northern District of were County. team in surveillance Fulton De made the District Court for the South- argued judge jur fendants that the lacked ern District of Adding New York. to the wiretaps isdiction authorize on tele employed cases, Georgia rationale in the phones County. located outside of Fulton the New York District Court reasoned: Georgia Court, Supreme interpreting logic of [Georgia] “The cases illus- is applying III of Title the Omnibus by a comparison pen reg- trated with Act, Crime Control and Safe deter Streets very pen isters. For the that a reason mined acquisition” that “aural occurred register does not hear sound and there- where authorities heard the conversations. accomplish fore does not ‘interception’ Specifically, the “It Court determined: of wire communications as that term is undisputed acquisi that the oral aural 2510(4), by 18 defined U.S.C. the use of tion of the defendant’s communication oc pen registers as a device to monitor (Ful curred in the Atlanta Judicial Circuit partic- record the numbers dialed from a County) judge authorizing ton where the telephone governed by ular Title investigative sitting. warrants was We III. See United States v. New York therefore find that federal law authorized Co., 159, 165-67, Telephone issuance of these warrants the Fulton (1977). [368-70], S.Ct. L.Ed.2d Superior judge.” Court 314 S.E.2d at 426. capacity It is the of the to hear jected wire which tion of the a habeas to issue the warrants. The district court concluded calls were again arguing that (something curred not where the Thereafter, the defendants in Evans filed taps. lacked corpus petition arguments, holding which The Federal District Court re- mechanically was authorized “listening post” jurisdiction occurred “interceptions tapped telephone in federal interfered with Fulton with authorize determined the statute respect ... oc- court, loca- See also 1977) and United isdiction of brought emphasized ‘the original)) supports and to disclose the contents contents’, id. at 166 United wiretap is States, *9 Michigan States the it under Title (S.D.N.Y.1990). cases cited logic 565 F.2d the communication overheard or monitored.” aural Rodriguez, Bell recognizing ^[369] 385, Telephone acquisition therein. III, (italics 388 place and which (the (6th F.Supp. v.Co. which Court jur- Cir. twenty-three telephones only contrary located outside of The cited case the above County, Nelson, eighteen Fulton as well as tele- is v. F.2d cases United States 837 generally opinion accepted publish- §§ 2510-2521. a It is rule of 2. The District Court’s not was statutory Legislature however, construction that when the repro- opinion, the ed. Most of is adopts "foreign” adopts a statute it also the Rodriguez, F.Supp. duced United States 734 by foreign juris construction of that statute the (S.D.N.Y.1990) adopted 116 which the Adams’ occurring prior diction to the Texas enactment. holding. Blackmon, 955, (Tex. Hansen v. 169 S.W.2d 958 Klein, 31, Civ.App.1943); State 154 Tex.Crim. 250, (1949). 224 S.W.2d 253

189 denied, The deter- (11th Cir.) in Title III. Turk court 488 U.S. defined 1519 cert. was an inter- (1988) (a replaying that each not mined 102 58 case 109 S.Ct. L.Ed.2d “ acquisition’ is ac- ‘aural ception because the after enactment of Texas Stat decided com- steps two are complished only when was ute and after the order device acquisition by the pleted initial case). re signed majority’s in this —the by hearing of the communication and the however, Nelson, extremely upon liance responsible.” 526 persons person the questionable. short, opinion the Turk F.2d at the was concerned with In Nelson III a “con- that Title envisioned determined however, us; issue that is before the same of the communi- temporaneous acquisition” us, the State in the case before the unlike and, such, replaying as each of cation government “intercep argued there that prior recording was not violative acquisition com tion” referred to the of a sought in way Id. The court no Act. See acquisi as well as the “initial munication inter- which could issue to determine by [recording] hear tion a device and the cept importantly, More the Turk orders. by person or ing of the communication (and ignored) wrote the Nelson court Court persons responsible recording.” for following: panel judges agreed with of in Nelson interpretation ... “We believe that a[n] government’s arguments held that defini- ... which would exclude from the ‘intercept’ it ‘aural “the term as relates to pre- replaying of a ‘intercept’ tion of place a acquisitions’ refers to the a viously conversation has recorded initially regard communication is obtained language much firmer basis ulti less of where the communication is 2510(4) logic, corresponds § It is mately heard.” 837 F.2d at 1527. legislative history. The words with however, clear, language relied through any ‘acquisition the use of ... upon by government taken out suggests that the central concern device’ Turk, context from United 526 States v. activity engaged in at the is with (5th Cir.1976) denied, F.2d cert. which time of the oral communication 50 L.Ed.2d 84 S.Ct. such to be over- causes communication (1976). Moreover, language utilized person listeners. If a heard uninvited government contrary ob to other thereby in a room a recorder secrets servations made the Turk court. oth- two records conversation between ers, ‘acquisition’ time occurs at the The issue “action Turk was whether F.2d at 658 is made.” 526 recording listening of the officers in to the cassette added). (emphasis tape party’s] seized from third car con- [a Thus, legal as a accepting Turk basis impermissible ‘interception’ stituted an wrong— holding, the court was its Nelson communication, in 18 Turk’s oral as defined language take out only opinion did the 2510(4).” Turk, U.S.C. 526 F.2d at 657. context, language it other clear- ignored The Turk court held that the initial record- holding ly contrary to contained within its “intercep- ing of the conversation was an opinion.3 By merely accepting the Turk interception tion” but this initial today, legal holding for its Nelson as basis not violative Title III since one of the us, perpetu- majority the case before parties to the conversation had consented wrongs made in ates the Nelson. recording. citing F.2d at to the Thus, 2511(2)(d). Considering issue U.S.C. the costs involved wire- Dix, replaying prior tapping, each of a see Texas Electronic Surveil- was whether (1981), lance, Thur. L.R. recording “interception” constituted an as Marshall *10 Lankford, panel citing F.2d 3. It is obvious that the Nelson was not Adams v. (11th Cir.1986). (A completely holding holding strange satisfied with this since 1498-90 additionally supported affirmance of the convic- Adams whether an issue since involved tion on a determination that the defendant's cognizable in habeas Nelson federal review and implicate Congress’s "did not con- claims core us.) in the the same issue case before involved Nelson, passing cerns in Title III.” 837 F.2d expected majority in that electronic surveillance will the case before us. Conse- limited, large only operations quently, holding occur in scale I to the majority’s dissent operations judge where these would be most that the in where like located the district toly appears listening cross district It boundaries. device is to be attached is Legislature that the central of the the intercept concern authorized to issue order un- 18.20, establishing der territorial restrictions was Article Section V.A.C.C.P. to centralize law enforcement. See United I concur to affirm Chavez, 562, 571-575, v. States 94 the convictions. 1849, 1854-56, (1974); S.Ct. 40 L.Ed.2d 380 Lankford,

Adams v. 788 F.2d

(11th Cir.1986). Today majority by purpose mandating

thwarts that wiretapping

those cases where crosses dis personnel

trict lines other law enforcement

along judges other must with be made a operations. cf.,

part See and Adams Lankford, majori 788 F.2d at 1499. The MOBERG, Ray Appellant, ty rejects legislative the obvious intent and purpose (along the better with reasoned law plain meaning case and the of the Texas, Appellee. The STATE of statute) because, taking into account that a 1119-89, Nos. 1120-89. listening post anywhere can be established enforcement “law officials Texas, Appeals Court of Criminal ‘shop’ sympathetic be free to for a would En Banc. judge from which to obtain an Jan. 1991. order.” S.W.2d 184. In other words, majority rejects a common sense Rehearing June 1991. Overruled reading of the legis Texas statute and the goal lative of centralization because it be personnel

lieves Texas law enforcement shop. be apt

would to forum Because I am

unwilling imply to faith part bad on the officials,

Texas law enforcement I am un accept to majority’s only justifica

able reject Legislature’s

tion clear intent place authority for issuance of the inter

cept order in the “in” the district

where “contents” communica “auraljly] acquired].”4

tion will be summary, agree holdings I with the cases, Georgia York along New Appeals’ opinion

with the Waco Court holdings

this case. The these are cases supported

aptly reasoning better logic employed by

sounder than that majority (Emphasis added.) Considering attempts It is incredible that the that district.” over,” justify “watching its reference is a see conclusions to the Bill "surveillance” (2nd Analysis. Analysis Dictionary, p. Ed. The Bill Random House V.A.C.C.P., 1987); purpose Dictionary, states that the of Section Webster’sThird International 3(b) then, (1969), "provide designation p. clearly Legislature is to in- presiding Appeals issuing judge of the court of Criminal tended that be the one “within judicial of one district from each applications district the district authorities to hear would be "watch- ing listening for electronic surveillance over” to the within conversations.