Duffy v. StateDuffy v. State
- Reporters:
- , ,
- Before:
- McClure
OPINION
ANN CRAWFORD McCLURE, Justice.Jack Joseph Duffy appeals his conviction for the offense of unlawful interception of electronic communication. Following a bench trial, the court found Appellant guilty and assessed punishment at imprisonment for a term of two years, probated for two years, and a fine of $1,000. On appeal, Appellant challenges the legal and factual sufficiency of the evidence, and the validity of the indictment. We affirm.
FACTUAL SUMMARY
This criminal prosecution arises out of conduct which occurred during divorce proceedings, which by all accounts became acrimonious. In March of 1996, Darlene Duffy filed a petition for divorce after twenty-six years of marriage to Appellant. Pursuant to the agreed temporary orders, both Darlene and Appellant continued to reside in the family residence, a.two-story home near Wylie, Texas.
1
Darlene lived in the master bedroom downstairs while Appellant moved into an upstairs bedroom. Both parties had equal access to the remaindеr of the house, including the family study. Prior to finalization of the divorce and while Appellant still lived in the marital home, Darlene became concerned that Appellant was listening to telephone messages intended for her. She removed the answering machine from the telephone in the kitchen and obtained voice mail capa
Darlene called her daughter, Pamela, and her son, Steve. Pamela was already on her way to her parents’ home because she had dinner plans with her mother and two other relatives; the others arrived shortly thereafter. Darlene showed them what she had found and played the tape. Steve insisted that they leave the house for а while so he could talk to Appellant. When Darlene returned home later that evening, she found Appellant in the study and confronted him about recording her telephone conversations. When she asked Appellant why he had done it, he told her that he wanted to “see what [she] was up to.” Darlene later turned over the recording device to Mike Vance, an investigator with the Collin County Sheriffs Office. 2
During cross-examination, Darlene admitted that she had found the recording device and made the wiretapping accusations approximately two weeks before the divorce was scheduled for final hearing. She had previously threatened to expose an illegality committed by Appellant’s company 1 if he did not agree to a continuance in the divorce proceedings. Darlene needed a continuance because she had hired new counsel to represent her. She also acknowledged that Appellant did not have ready access to the detаiled long-distance billing statement although he was responsible for paying the telephone bill during this time period.
Pamela Duffy testified about the events of that evening as well as separate conversations she had with her father. When Pamela arrived at the house, her mother appeared extremely excited and upset and showed her what appeared to be a recording device. When Darlene played the tape on the family stereo, Pamela heard a conversаtion she had had with her mother only minutes before arriving at the house. At one point that evening, the family talked with Appellant. According to Pamela, accusations were made about the recording device and her father, for the most part, remained silent. He did not deny placing the device on the telephone. Appellant later admitted to her that he had placed the device on the telephone, but claimed he did so in order to prove which
Question by the prosecutor: I want you to state why he said he taped the phone. He was explaining to you. Tell us why. We don’t want the whole story.
Answer by Pamela: Okay. He said his reason for doing this was because he was trying to combat or trying to prove that telephone bills, really expensive telephone bills, were — the charges were being made by my mother.
Q: Okay. So if he taped the phone conversations he could show that it was her calling these people and not you calling these people; is that right? A: Right. The intention was that she was — that this was to record outgoing phone numbers, the touch tones, to prove that she was making phone calls.
Q: Basically if it’s not your voice talking — your boy friend live out of state?
A: Not now. At the time he did.
Q: Basically if you tape the phone call, he can determine whether it’s you talking on the phone long distance or if it’s your mom talking on the phone lоng distance?
A: I believe the intent was the time of day. I’m not sure. I believe the intent was the time of day. I was at school. My procedure, I believe was school or work. My dad was at work; therefore, my mother would have been the only one who could have made those calls.
Pamela had also heard her mother threaten to file charges against Appellant if he did not agree to the continuance in the divorce case.
Mike Vance took the initial report from Darlene and reсeived from her a recording device and tape. Vance said that the device, which bore the label “dialed number recorder” did not appear to be a simple telephone answering machine. It had both a power source plug and a cord with a phone jack connected to it and it contained a microcassette. It appeared to him to have the capability of recording a telephone call.
At the conclusion of the evidence, the triаl court expressly rejected Appellant’s defense that he could not be found guilty in the absence of the actual device being introduced into evidence. 3 By finding Appellant guilty, the court impliedly found that Appellant had intentionally recorded the conversations, and therefore, rejected his defense that he intended only to record the numbers dialed.
Appellant testified during the punishment phase. He admitted placing the device on the telephone and admitted that it had the cаpability of recording calls, but he insisted that he installed the device for the sole purpose of recording the numbers dialed on the outgoing calls. He suggested that Darlene had found the device and changed the settings to record the calls.
SUFFICIENCY OF THE EVIDENCE
In Points of Error Nos. One and Two, respectively, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction. The State responds initially that both contentions are waived because Appellant аdmitted his guilt during the punishment phase by acknowledging that he placed the recording device on the telephone. Even if the issues are not waived, the State maintains that the evidence is both legally and factually sufficient.
DeGarmo Doctrine
The State’s initial argument refers to the long-standing rule which has come to be known as the DeGarmo 4 doctrine:
[I]f a defendant does not testify at the guilt stage of the trial, but does testify at the punishment stage of the trial, and admits his guilt to the crime for which he has been found guilty, ... [t]he law as it presently exists is clear thаt such a defendant not only waives a challenge to the sufficiency of the evidence, but he also waives any error that might have occurred during the guilt stage of the trial.
DeGarmo, 691 S.W.2d at 661. Accord McGlothlin v. State, 896 S.W.2d 183, 186 (Tex.Crim.App.1995). However, the Court of Criminal Appeals has essentially abrogated the DeGarmo doctrine in recent years. Reyes v. State, 994 S.W.2d 151 (Tex.Crim.App.1999); Leday v. State, 983 S.W.2d 713 (Tex.Crim.App.1998). Even if it could be said that some aspect of the DeGarmo doctrine somehow survived Le-day, it would not apply here since Appellant did not fully admit his guilt. To the contrary, he consistently denied having the intent to record any of his wife’s telephone conversations or having aсtually set the recording device so that it would record conversations. We turn now to the sufficiency issues.
Standards of Review
In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App.1991). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing ■ all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct evidence and circumstantial evidence cases. Geesa, 820 S.W.2d at 158; Chesnut v. State, 959 S.W.2d 308, 311 (Tex.App.—El Paso 1997, no pet.).
In reviewing factual sufficiency, wе consider all of the evidence, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996); Levarlo v. State, 964 S.W.2d 290, 295 (Tex.App.—El Paso 1997, no pet.). We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129; Levando, 964 S.W.2d at 295. In conducting a factual sufficiency review, the reviewing court cannot substitute its conclusions for those of the fact finder. Levario, 964 S.W.2d at 295. It is not within the province of this Court to interfere with the fact finder’s resolution of conflicts in the evidence or to pass on the weight or credibility оf the witness’s testimony. Id. Where there is conflicting evidence, the fact finder’s verdict on such matters is generally regarded as conclusive. Id.
Elements of the Offense
Omitting the formalities, the indictment alleged that Appellant did then and there:
[Intentionally and knowingly intercept and endeavor to intercept a wire, oral and electronic communication of Darlene Duffy by installing, affixing, and directing the installation of an electronic, mechanical, and other device to intercept and endeavor to intercept а wire, oral, and electronic communication....
Appellant was indicted pursuant to Section 16.02(b)(1) of the Texas Penal Code which
[IJntentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication.
Tex.Pen.Code Ann. § 16.02(b)(l)(Vernon Supp.2000).
A number of the terms used in this statute have the meaning assigned to them by Section 18.20 of the Texas Code of Criminal Procedure.
See
Tex.Pen.Code Ann. § 16.02(a). The term “intercept” аs used in the statute and the indictment 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.
Analysis
Citing Simpson v. Simpson, 5 a case which concludes that the Federal Wiretapping Statute 6 was not intended to extend into the area of marital conflicts, Appellant argues that Section 16.02 is subject to a similar construction because it is modeled after the federal statute. He reasons that the placing of a device on one’s own telephone, evеn if the device records the telephone conversations of the person’s spouse, should not be a violation of the statute. Appellant’s argument regarding the legislative intent behind Section 16.02 and alleged inapplicability of the statute to interspousal wiretaps is unpersuasive.
First, this contention is not properly raised in the context of a legal or factual sufficiency challenge because there is no exception to prosecution under Section 16.02 arising from the faсt that the person placed a wiretapping device on his own telephone or that he intercepted a spouse’s conversation.
7
See
Tex.Pen.Code Ann.
Even if we could consider an exception not expressly provided by the Legislature, we would not be inclined to do so under the authority cited by Appellant. As noted in
Collins,
only
Simpson
and one other federal court of appeals case
9
have held that the Federal Wiretap Statute exempts spouses from its prohibitions and both opinions have been widely criticized.
Collins,
904 S.W.2d at 797,
citing e.g., Platt v. Platt,
951 F.2d 159, 160 (8th Cir.1989),
Heggy v. Heggy,
944 F.2d 1537,1539 (10th Cir.1991),
Kempf v. Kempf,
868 F.2d 970, 972-73 (8th Cir.1989),
Pritchard v. Pritchard,
732 F.2d 372, 374 (4th Cir.1984),
United States v. Jones,
542 F.2d 661, 667 (6th Cir.1976),
Walker v. Carter,
820 F.Supp. 1095, 1097 (C.D.Ill.1993),
Nations v. Nations,
670 F.Supp. 1432, 1434-35 (W.D.Ark.1987),
Flynn v. Flynn,
560 F.Supp. 922, 924-25 (N.D.Ohio 1983),
Heyman v. Heyman,
548 F.Supp. 1041, 1045-47 (N.D.Ill.1982),
Gill v. Willier,
482 F.Supp. 776, 778 (W.D.N.Y.1980),
Kratz v. Kratz, All
F.Supp. 463, 467-72 (E.D.Pa.1979), and Comment,
Interspousal Electronic Surveillance Immunity, 1
U. Of Tol.L.Rev. 185, 185-212 (1975);
see Turner,
765 S.W.2d at 469-70.
See also May v. State,
780 S.W.2d 866, 870 (TexApp.—Dallas 1989, pet. refd). Like Section 16.02, the Federal Wiretap Statute does not contain an exception for wiretaps between spouses.
Kempf,
868 F.2d at 973. Further,
Simpson’s
suggestion that Congress did not intend for the Federal Wiretap Statute to apply to spouses is directly contrary to the statute’s legislative history because Congress actually anticipated that the statute would restrict the use of wiretap evidence in divorce proceedings.
Collins,
904 S.W.2d at 797,
citing Kempf,
868 F.2d at 973. Sеnator Long, chair of the subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee, stated that the “three major areas in which private electronic surveillance was widespread were (1) industrial, (2) divorce cases, and (3) politics.”
Collins,
904 S.W.2d at 797,
quoting Kempf,
868 F.2d at 973. Additionally, Senator Hruska, a co-sponsor of the bill, commenting on the scope of the statute, noted that “[a] broad prohibition is imposed on private use of electronic surveillance, particu
Reiterating the defenses offered at trial, Appellant additionally argues that the evidence is both legally and factually insufficient to support his conviction because it does not establish that the device found by Darlene is the same device he placed on the telephone, or even if it is, that he set the device to record Darlene’s telephone conversations. 10 Considering first the legal sufficiency of the evidence, the trial court had before it evidence that the device was capable of recording telephone conversations and that Appellant told Darlene that he had placed the device on the telephone for the purpose of finding out what she “was up to.” Taken in the light most favorable to the verdict, this evidence is legally sufficient to support Appellant’s conviction because a rational trier of fact could have concluded beyond a reasonable doubt that Appellant intentionally intercepted a wire or oral communication through the use of the recording device placed on the telephone. Point of Error No. One is overruled.
Regarding the factual sufficiency of the evidence, the trial court had before it substantially conflicting evidence on the question of Appellant’s intent in placing the recording device on the family telephone and whether he set the device to record conversations as opposed to telephone numbers dialed from the family telephone. It was for the trial court to weigh the credibility of Darlene’s and Pamela’s testimony, to assign wеight to their testimony on this question, and to draw deductions from all of the evidence. We note that both witnesses were impeached by exposure of their respective biases. Ultimately, the trial court resolved the conflict in favor of a finding of guilt. We are unable to conclude that this finding is so contrary to the evidence as to be manifestly unjust. Accordingly, Point of Error No. Two is overruled.
VALIDITY OF THE INDICTMENT
In his third point of error, Appellant asserts that the trial court lacked jurisdiction because the indictment failed to state an offense. He contends that the indictment improperly authorized conviction based upon an allegation that he “knowingly” intercepted a wire, oral, and electronic communication because Section 16.02 does not allow conviction based upon that lesser mental state. While Appellant is correct that the indictment improperly alleged that he both intentionally and knowingly committed the illegal conduct, the defect regarding the additional mental state does nоt render the indictment constitutionally void since the indictment accuses Appellant of a crime with enough clarity and sufficiency to identify the penal statute under which the State intended to prosecute.
See Duron v. State,
956 S.W.2d 547, 550-51 (Tex.Crim.App.1997)(written instrument is an indictment or information under the Art. V, sec. 12(b) of the Texas Constitution if it accuses someone of a crime with enough clarity and sufficiency to identify the penal statute under which the State intends to prosecute, even if the
Notes
. Darlene explained that the house was located on farm or ranсh property out “in the country.” The parties had six thoroughbred horses on the premises. It was necessary for Appellant to continue living there during the divorce proceedings to tend to the upkeep and to perform tasks which Darlene was physically unable to do.
. At some subsequent point in the case, the Collin County District Attorney‘s Office lost the recording device and the tape.
. Appellant does not pursue this complaint on appeal.
. DeGarmo v. State, 691 S.W.2d 657 (Tex. Crim.App.1985).
. Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974).
.
Simpson
construed the Omnibus Crime Control and Safe Street Act of 1968,
.Furthermore, the argument raised by Appellant does not constitute an affirmative defense to prosecution under Section 16.02. See Tex Pen.Code Ann. § 2.03 (Vernon 1994); TexPen. Code Ann. § 16.02(c)(Vernon Supp.2000). Under a former version of Section 16.02 not applicable here, the statute contained eleven exceptions rather than affirmative defenses. With the 1993 amendment of Section 16.02, those exceptions became affirmative defenses. See Act of May 28, 1989, 71st Leg., R.S., ch. 1166, § 16, 1989 Tex.Gen.Laws 4783, 4791-92, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex.Gen.Laws 3586, 3608-09. See also Hernandez v. State, 938 S.W.2d 503, 506 nn. 3, 4 (Tex.App.— Waco 1997, pet. ref‘d).
. Section 2.02 of the Penal Code provides:
(a) An exception to an offense in this code is so labeled by the phrase: ‘It is an exception to the application of .... ’
(b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant‘s conduct does not fall within the exception.
Tex.Pen.Code Ann. § 2.02 (Vernon 1994).
. Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir. 1977).
. Appellant emphasizes certain statements by the trial court indicating its belief that a “pen register” is illegal under Section 16.02. However, as Appellant points out, he was not indicted for placing a pen register on his telephone. Regardless of whether the trial court was mistaken in its statements, the only question before us is whether the evidence supports Appellant’s conviction.