Schalk v. State

823 S.W.2d 633 | Tex. Crim. App. | 1991

823 S.W.2d 633 (1991)

Thomas Barton SCHALK and Robert Gary Leonard, Appellants,
v.
The STATE of Texas.

Nos. 665-89, 666-89.

Court of Criminal Appeals of Texas, En Banc.

October 2, 1991. Rehearing Denied December 4, 1991.

Gerald A. Banks, Michael P. Carnes, John H. Hagler, Dallas, for appellants.

John Vance, Dist. Atty., and Kathi Alyce Drew, Anne B. Wetherholt, Ted Steinke & Jane E. Jackson, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

APPELLANTS' PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellants were convicted of theft of trade secrets. V.T.C.A. Penal Code § 31.-05. They pled not guilty to the indictments ^[1] and were afforded a joint trial on the merits. A jury found both appellants guilty of the offenses as charged and assessed punishment at two years confinement in the Texas Department of Corrections ^[2] and a $5,000 fine for each. Appellants raised six points of error in the court of appeals, alleging the evidence was insufficient to establish trade secret status and mental culpability for the act of theft thereof, additional points concerning the authorization of the search, and an allegation of jury misconduct. The court of appeals affirmed appellants' convictions in separate published opinions. Schalk v. State, 767 S.W.2d 441 (Tex.App.—Dallas 1988); Leonard v. State, 767 S.W.2d 171 (Tex.App.—Dallas 1988). Appellants petitioned this Court on six grounds for review, two of which we granted, to-wit: 1) "The court of appeals erred in holding that the evidence is sufficient to show that the so-called computer programs that were alleged in the indictment were trade secrets"; and 2) "The court of appeals erred in holding that the search warrant sufficiently described the magnetic tapes that were seized and that the magnetic tapes were not seized pursuant to a general exploratory search."^[3] We will affirm the court of appeals.

A brief recitation of the facts is necessary to set the background for the alleged commission of the instant offense. Appellants Schalk and Leonard are former employees of Texas Instruments (hereafter TI). Both men have doctoral degrees and specialized in the area of speech research at TI. Schalk resigned his position with TI in April 1983 to join a newly developed company, Voice Control Systems (hereafter VCS). In February 1985, Leonard resigned from TI and joined VCS. Several TI employees eventually joined the ranks of VCS. Speech research was the main thrust of the research and development performed by VCS. In fact, VCS was a competitor of TI in this field.

In April 1985 Sam Kuzbary, then employed with VCS and a former TI employee, noticed some information which he believed to be proprietary to TI stored in the memory of the computer he was using at VCS. Kuzbary contacted TI and agreed to serve as an "informant" for them. He then searched the premises of VCS and photographed materials which he recognized from his employment with TI. A TI internal investigation revealed that a few hours prior to Schalk's and Leonard's departures from TI, each appellant, utilizing TI computers, copied the entire contents of the directories respectively assigned to them. This information included computer programs which TI claimed to be its trade secrets.

Officials of TI then contacted the Dallas District Attorney's office. A search of the premises of VCS resulted in the seizure of computer tapes containing the alleged TI trade secret programs from appellants' offices. Appellants were arrested and the following indictments were returned:

THOMAS BARTON SCHALK, hereinafter styled Defendant, on or about the 27th day of April in the year of our Lord One Thousand Nine Hundred and Eighty-Three in the County and State aforesaid, did unlawfully, then and there, knowingly make a copy of an article representing trade secrets of Texas Instruments Incorporated, a corporation, to-wit: a computer disk on which the following computer programs were stored:

LPCSPEAK1.FOR created May 3,1981 at 1:13 p.m.

LPCSPEAK2.FOR created January 10, 1982 at 5:04 p.m.

LPCSPEAK3.FOR created October 18, 1982 at 6:51 a.m.

LPCSPEAK4.FOR created October 27, 1982 at 1:56 p.m.

RTSSPEAK3.FOR created October 18, 1982 at 6:52 a.m.

and said Defendant copied said computer programs, which were the trade secrets of Texas Instruments Incorporated, from said computer disk onto a magnetic tape without the effective consent of Texas Instruments Incorporated, the owner of said trade secrets ...

ROBERT GARY LEONARD, hereinafter styled Defendant, on or about the 18th day of February in the year of our Lord One Thousand Nine Hundred and Eighty-Five in the County and State aforesaid, did unlawfully, then and there, knowingly make a copy of an article representing trade secrets of Texas Instruments Incorporated, a corporation, to-wit: a computer disk on which the following computer programs were stored:

V2REC 9.FOR created July 28, 1982 at 1:40 a.m.

V2REC 9LN.FOR created October 7, 1982 at 1:08 a.m.

V3REC 9.FOR created November 16, 1982 at 3:53 a.m.

V3REC 9.FOR created October 8, 1982 at 8:33 a.m.

V4REC 9.FOR created January 13, 1983 at 2:32 p.m.

and said Defendant copied said computer programs, which were the trade secrets of Texas Instruments Incorporated, from said computer disk onto a magnetic tape without the effective consent of Texas Instruments Incorporated, the owner of said trade secrets ...

To reiterate, we granted review to consider, first, whether the evidence was sufficient to establish that the computer programs named in the indictments were trade secrets, and second, to determine whether the items listed in the search warrant were sufficiently described so as to preclude a general exploratory search. We will first address the trade secrets issue and then examine the search warrant to determine the specificity of its scope.

Trade Secrets

We begin our discussion with the nature of the alleged trade secrets in the instant case, viz computer programs. Texas trade secret law has its origins in the civil law arena. See BPI Systems, Inc. v. Leith, 532 F. Supp. 208 (W.D.Tex.1981) (Fifth Circuit case applying Texas law utilizing the trade secrets definition from the Restatement of Torts, citing Hyde Corp. v. Huffines, 158 Tex. 566, 314 S.W.2d 763 (1958)).^[4] In BPI, the subject of the trade secret litigation was a computer software program, which the court found met the trade secrets definition under Texas civil law.

Prior to the enactment of § 31.05, theft of trade secrets was subject to criminal charges under theft of property statutes. See Hancock v. State, 402 S.W.2d 906, 908 (Tex.Cr.App. 1966) (cites to theft statutes defining "property"). This Court's decision in Hancock, while not dispositive of the instant situation, does recognize computer programs as "property" subject to criminal jurisdiction.

Few cases have been decided under Penal Code § 31.05. See Falcone v. State, 682 S.W.2d 418 (Tex.App.—Houston [1st] 1984, no pet.) (in discussion of whether theft of trade secret computer programs was properly charged under the general theft statute, the court determined that the charge should have been made pursuant to the more specific theft of trade secrets statute). See also Atkins v. State, 667 S.W.2d 540 (Tex.App.—Dallas 1983, no pet.) (indictment for theft of trade secrets reading "architectural plans designed and drawn by Billy Joe Noles" held fatally defective because it did not effectively identify the property in question).

Having determined that computer programs are proper subjects for trade secret litigation under Texas civil and criminal law, we now look to the case sub judice to determine whether the programs which appellants copied and took with them to VCS are trade secrets as defined by § 31.05 of the Penal Code, to-wit:

§ 31.05 Theft of Trade Secrets

(a) For purposes of this section:

(1) "Article" means any object, material, device, or substance or any copy thereof, including a writing, recording, drawing, sample, specimen, prototype, model, photograph, micro-organism, blueprint, or map.

(2) "Copy" means a facsimile, replica, photograph, or other reproduction of an article or a note, drawing, or sketch made of or from an article.

(3) "Representing" means describing, depicting, containing, constituting, reflecting, or recording.

(4) "Trade secret" means the whole or any part of any scientific or technical information, design, process, procedure, formula, or improvement that has value and that the owner has taken measures to prevent from becoming available to persons other than those selected by the owner to have access for limited purposes.

(b) A person commits an offense if, without the owner's effective consent, he knowingly:

(1) steals a trade secret;

(2) makes a copy of an article representing a trade secret; or

(3) communicates or transmits a trade secret.

(c) An offense under this section is a felony of the third degree, (emphasis supplied)

Appellants claimed on appeal that the programs did not meet the statutory trade secrets criteria because they alleged their former employer TI failed to take "measures to prevent [the information] from becoming available to persons other than those selected by the owner." V.T.C.A. Penal Code, § 31.05(a)(4). We note, as did the court of appeals, that the statute sets no standards for degree or sufficiency of the "measures" taken. See Schalk, 767 S.W.2d at 447; Leonard, 767 S.W.2d at 176.

Specifically, appellants pointed to considerable disclosure of speech research information, citing the "academic environment" of the laboratory in which they worked as encouraging the sharing of information, rather than maintaining secrecy. Appellants also claimed that TI policy favored protection of its research and development efforts through the patent process, as opposed to trade secret designation. Further, appellants allege that the programs that are the subject of the instant case were not listed in the TI register of trade secrets and that TI was lax in implementing its standard procedures with regard to notifying employees of trade secrets within the company. The precise issue before us in the case sub judice is one of first impression in Texas, to-wit: what constitutes requisite "measures" to protect trade secret status? Appellants emphasize the degree or extent to which "measures" were taken, rather than whether "measures" were taken. We agree with the court of appeals that the issue in this case presents a question of factual insufficiency. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) (whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find the essential elements of the offense beyond a reasonable doubt). Schalk, 767 S.W.2d at 447; Leonard, 767 S.W.2d at 176.

We will analyze the court of appeals opinion in view of the "measures" which that court found sufficient to meet the definition of trade secrets under section 31.05 of the Texas Penal Code. The court of appeals listing included the following measures:

Non-disclosure Agreements

1) non-disclosure agreements signed by all new employees when hired;

2) exit interviews with terminating employees to emphasize non-disclosure of confidential information;

Plant Security

3) identification badges to prevent unauthorized personnel from entering certain areas;

4) use of security guards and closed-circuit television monitors;

5) entry to speech lab limited to small number of total TI personnel; speech lab physically located in separate wing or building;

6) print-outs and hard copies of data were to be kept out of sight and nighttime security checks were conducted for data left out on desks; data found during such checks was subject to security report;

Computer Software Security

7) issuance of computer passwords or access codes so that data stored in restricted directories was not available to unauthorized personnel; all access required certain code clearance or password information before the computer would respond;

Other Measures

8) TI Trade Secret Register referred to "speech processing";

9) general reference to admonitions to lab personnel to protect software developed in the lab.

A literal reading of 31.05(a)(4) indicates that the above corporate actions and policies would qualify as "measures" under the statute, i.e., such that "the owner has taken measures to prevent from becoming available to persons other than those selected by the owner to have access for limited purposes." The statutory definition, without elaboration as to degree or type of measures, indicates that "some measures" would be sufficient, and we agree that the above listing does constitute "some measures" as the court of appeals determined. Schalk, 767 S.W.2d at 447; Leonard, 767 S.W.2d at 176. We believe, however, that elaboration of the term "measures," beyond the scope of the court of appeals discussion, is necessary from the standpoint of the remainder of the definition, to-wit: "to prevent from becoming available to persons other than those selected by the owner to have access for limited purposes."

Appellants' claims on appeal to the court of appeals and to this Court focus on the encouraged disclosure of speech research information to non-TI personnel engaged in similar research activities. We therefore next direct our attention to the disclosure issue to determine whether appellants' first ground for review has merit. Appellants argue, somewhat convincingly, that TI encouraged the sharing of speech research to others in the same field, thereby demonstrating to the speech research community that TI was on the leading edge of such research and fostered the free flow of information on the subject. In support of their position, appellants point to numerous published articles and papers in which their research was discussed, meetings during which TI speech laboratory activities were shared, and the giving of certain information and materials to schools and government agencies involved in similar research projects.

Returning to the list of "measures" adopted by TI and scrutinizing them in light of the appellants' allegations of extensive disclosure, it becomes apparent that because we have limited precedent to guide us in this analysis, we must look to other jurisdictions for assistance. To facilitate the interpretation of these issues, we will group certain of the "measures" which have similar characteristics.

Non-Disclosure Agreements

Appellants Schalk and Leonard each signed three separate types of non-disclosure agreements with TI. First, upon beginning employment with TI, each signed an "Employee Trade Secret Information Acknowledgement" agreement, which reads in pertinent part as follows:

I, [Thomas Barton Schalk] [Robert Gary Leonard], upon my employment by Texas Instruments, Incorporated, have been advised:

A. Of procedure SP 7-4-4, entitled "Safeguarding TI in Trade Secret Matters";

* * * * * *

E. That I am not to use for my own benefit or for the benefit of others, or disclose to other Tier's except on a "need to know" basis, with a statement that the information is TI proprietary or trade secret, or disclose to any person outside of TI, any TI proprietary or trade secret information or customer proprietary information received under appropriate written contract to which I have access.

* * * * * *^[5]

Procedure SP 7-4-4 states TI policy for protecting trade secrets belonging to TI. Trade secret information is defined by TI, to-wit:

Proprietary information owned by TI which is or may be used in TI business and which provides TI an advantage over competitors who do not know or use it. Trade secret information is sensitive information, important to TI, the unauthorized use or disclosure of which could seriously harm the business interests of TI....

The definition further specifies that "software" is included in the types of technological information that may comprise a TI trade secret.

Second, appellants signed an "Assignment of Inventions and Company Information Agreement" form, which reads in pertinent part:

In consideration of my employment by Texas Instruments Incorporated or any subsidiary thereof (hereinafter, collectively referred to as "TI"), I hereby agree as follows:

I.

ASSIGNMENT OF INVENTIONS

A. I agree to disclose promptly, completely and in writing to TI and I hereby assign and agree to assign and bind my heirs, executors, or administrators to assign to TI or its designee, its assigns, successors or legal representatives, any and all inventions, processes, diagrams, methods, apparatus, or any improvements (all hereinafter collectively called "inventions") whatsoever, discovered, conceived, and/or developed, either individually or jointly with others, during the course of my employment with TI (including any and all inventions based wholly or in part upon ideas conceived during my employment with TI), or using TI's time, data, facilities and/or materials, provided the subject matter is one within a field of interest of TI. My obligations under this paragraph apply without regard to whether an idea for an invention or a solution to a problem occurs to me on the job, at home, or elsewhere. I further agree that all such inventions are TI's exclusive property, whether or not patent applications are filed thereon.^[6]

B. Subject matter within a field of interest of TI includes any field of interest that has been worked on by TI in the past, in which there is work in progress at the date of or during my employment with TI, and projects or other operations at TI planned for the future....

* * * * * *

III.

COMPANY INFORMATION

A. I recognize that my position with TI is one of highest trust and confidence by reason of my access to and contact with the trade secrets and confidential and proprietary business information of TI. I shall use my best efforts and exercise utmost diligence to protect and safeguard the trade secrets and confidential or proprietary information of TI.

B. Except as may be required by TI in connection with and during my employment with TI or with the express written permission of TI, I shall not, either during my employment with TI or thereafter, directly or indirectly, use for my own benefit or for the benefit of another, or disclose to another, any trade secret or confidential or proprietary information (whether or not acquired, learned, obtained or developed by myself alone or in conjunction with others) of TI, its customers, contractors or of others with which TI has a business relationship.

C. I further agree that all memoranda, notes, records, drawings, or other documents made or compiled by me or made available to me while employed by TI concerning any process, apparatus or products manufactured, used, developed, investigated or considered by TI or concerning any other TI activity shall be the property of TI and shall be delivered to TI upon termination of my employment or at any other time upon request.

* * * * * *

Last, each appellant participated in an exit interview conducted by the legal department prior to or at the time of termination of employment. An integral part of the exit interview is the signing of another non-disclosure form entitled "Trade Secret Listing for Termination of Employment." In this agreement, appellants acknowledged that they had been advised of their obligations to the company concerning trade secrets and proprietary information to which they had access during their employment with TI. The agreement further states, "I have been advised that I cannot disclose to others, or use for my own benefit or the benefit of others, any proprietary information and trade secrets to which I have had access at TI.... I am free to use information in the public domain and my own skill, knowledge, knowhow, and experience to whatever extent and in whatever way I wish so long as such use does not involve such trade secrets or proprietary information."

Employment contracts containing nondisclosure agreements are common in trade secret law. See Aries Information Systems, Inc. v. Pacific Management Systems Corp., 366 N.W.2d 366 (Minn.App.1985) (in suit for misappropriation of trade secret, employees signed an "Employee Confidential Information Agreement" which the court considered as a reasonable effort to maintain the secrecy of computer software). In fact, courts have found the implied duty of confidentiality by virtue of the employer/employee relationship, even in the absence of a written agreement. See Welex Jet Services, Inc. v. Owen, 325 S.W.2d 856 (Tex.Civ.App.—Fort Worth 1959, writ ref'd, n.r.e.). Although a confidentiality agreement existed in Welex, the court stated that "[Confidential information secured by reason of fiduciary relationships may not be used or disclosed to appellant's detriment irrespective of an agreement not to do so." Id. at 858. Cf. Hyde Corp. v. Huffines, 158 Tex. 566, 314 S.W.2d 763, cert, denied, 358 U.S. 898, 79 S. Ct. 223, 3 L. Ed. 2d 148 (1958) (fiduciary relationship of confidentiality existed between licensor/licensee in absence of written contract). Appellants unquestionably contracted with TI, giving rise to a fiduciary duty not to disclose TI trade secrets or TI proprietary information to anyone not so designated by the company.

We now determine whether the information disclosed with TI's permission or encouragement, such as published articles, seminar papers, speeches given at public meetings, information provided to government agencies, etc., was so extensive as to destroy any trade secret status that may have existed regarding the computer software which is the subject of the instant indictments. It is axiomatic that the core element of a trade secret must be that it remain a secret. See generally 70 Tex.Jur.3d, § 36 and cases cited therein. However, absolute secrecy is not required. See Q-CO Industries, Inc. v. Hoffman, 625 F. Supp. 608 (S.D.N.Y.1985) (absolute secrecy not required, rather a substantial element of secrecy must exist). In the instant case appellants rely heavily on the facts detailing disclosure of the work performed in the speech research lab. Certainly, much information was disclosed to various sources through various means. The record reflects, however, from trial testimony by Dr. George Doddington, chief scientist and head of the speech research lab at TI, that the algorithms composing the actual software which is the subject of these indictments, were not disclosed, nor at any time was such disclosure encouraged or authorized. The relevant portion of Dr. Doddington's testimony follows:^[7]

Q. Now, putting the directory listing aside for a moment, let me direct your attention specifically, well first, let me ask you, if, in your 16 years with Texas Instruments in the speech research area, has Texas Instruments ever given out any of it's [sic] speech recognition, speech synthesis, or, speaker verification, or voice verification software, to anybody?

A. Not to my knowledge.

Q. Have you ever personally given out, or authorized the giving out of any of the algorithms?

A. No, never.

Q. All right. And, you were the head of the speech research department?

A. I was the head of the speech research branch, yes.

Q. All right. Now regarding, State's Exhibit, 4-B, 4-C, 4-D, 4-E, and 4-F, the five computer programs that you have identified as coming from tape number four, you wrote them?

A. Yes, I wrote these.

Q. Have you, or Texas Instruments, ever given out those five computer programs to anyone, whether or not,—

A. No.

Q. With or without restrictions?

A. Correct.

Q. Have you ever given them out to anybody?

A. No.

Q. Okay. Let me show you, now, the computer programs that you have identified as coming off of tape number 16, State's Exhibit, 16-B, 16-C, 16-D, 16-E, 16-F, 16-G, 16-H, and 16-1, and I'll ask if you, or anybody else at Texas Instruments as [sic] ever provided these, or given these out to anybody outside of Texas Instruments for any reason, whatsoever?

A. No.

Q. State's Exhibit, 17-B, 17-C, 17-D, 17-E, 17-F, I'll ask you if you or anybody else at Texas Instruments has ever given out these five programs that came out of tape number 17?

A. Not to my knowledge.

Q. State's Exhibit, 18-B, 18-C, 18-D, 18-E, 18-F, and 18-G, these computer programs that came off of tape number 18, I'll ask you if you or anybody else at Texas Instruments has ever given those out to anybody without or with restrictions?

A. No, not to my knowledge.

Q. Or provided them to anybody?

A. No.

Q. Again, are those programs that fall within this third area, algorithms?

A. Yes.

Q. Now, you have given out, for limited purposes, some of the data bases?

A. Yes.

Q. And, for limited purposes, some of the tools?

A. Some, yes.

Q. But, not the algorithms?

A. Correct.

Q. Now, Doctor Doddington, you wrote all of the programs that we have just talked about in front of the Jury, correct?

A. Yes, some of them were subsequently modified—seventeen, was subsequently modified by Gary Leonard.

Q. But, you were the original author of all of them?

A. Yes.

Q. So, you are familiar with what they can do and what their value is?

A. Yes.

Q. How long would it take a competitor of Texas Instruments in the speech synthesis, and speech recognition areas to duplicate your efforts that were found on tapes 4, and 6, 16, 17, 18, and 19?

A. You mean how long would it take to develop these programs?

Q. How long would it take a competitor to develop those programs?

A. Well, to the best of my knowledge, these programs, or anything similar to them, did not exist anywhere except at Texas Instruments.

It's difficult for me an [sic] say how long it would take someone to do this, maybe never, years.

Q. How long—I'm sorry.

A. This is basically a culmination of fifteen years of speech research at Texas Instruments.

Q. Okay. Over that,—well, let's just say the last ten years of speech research at Texas Instruments, how much money has Texas Instruments invested in this speech research area, that you were working in?

MR. BANKS: Judge, that is repetitious. It's been asked and answered yesterday, I think we got a figure of one to two million dollars a year. It's repetitious.

THE COURT: Overruled.

THE WITNESS: At the rate of approximately one million dollars a year, or sometimes more, in the range of ten to twenty million dollars.

The exhibits referenced in Dr. Doddington's testimony correlate to the computer tapes and programs under indictment in the instant case.

In Dickerman Associates, Inc. v. Tiverton Bottled Gas Co., 594 F. Supp. 30 (D.C.Mass.1984), the court held that although portions of the computer software system were disclosed during demonstrations to prospective purchasers, it represented but a small fraction of the whole system and this limited disclosure was insufficient to permit an understanding of the design and architecture of the program. Courts have also held that access to the computer software program by a few customers does not destroy trade secret status. J & K Computer Systems, Inc. v. Parrish, 642 P.2d 732 (Utah 1982). See also Annot, Computer Trade Secret, 53 A.L.R. 4th 1046,1072, citing Ward v. Superior Court, 3 Computer L.Serv.Rep. 206 (Cal.Super.1972) (program held not generally available to public where owner did not sell details of program itself but only sold remote plotting service that the program made possible).

The instant situation is analogous to Dickerman and J & K. For example, in a letter transmitting computer software to the USAF Academy, Dr. Doddington stated the following:

Here is a tape containing the most significant software packages that we have in our laboratory that you desired to receive. I have enclosed both documentation and source listings for your use. I hope you find these data to be helpful in setting up your laboratory and structuring your software for maximum efficiency. Please understand that we can not [sic] support this software in any way other than to provide you with the listings as we are doing by sending you the tape.

With this in mind, and considering that the software is sensitive to the exact system configuration, the software that we are sending will probably find best use as a template or guide for helping you to define and develop your own software....

This letter, ironically presented as defendant's exhibit, supports instead the State's position because it emphasizes the limited nature of the disclosure and is consistent with relevant caselaw on this topic. Q-CO Industries, 625 F.Supp. at 617, quoting Imperial Chemical Indus. Ltd. v. National Distillers & Chem. Corp., 342 F.2d 737, 742 (2d Cir.1965), to-wit: "... [A] trade secret can exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process and operation of which, in unique combination, affords a competitive advantage and is a protectable secret." We find, based on the record in this case, that the limited disclosures made by TI in regard to the speech research lab activities merely described the application and configuration of the certain elements of the software but did not reveal the actual composition of the programs.

Doddington testified that disclosure of the programs named in the instant indictments was never authorized. We note that even if TI had authorized disclosure of such programs on a limited basis, trade secret status would not necessarily be destroyed because it could still meet that part of the statutory definition which reads "that the owner has taken measures to prevent from becoming available to persons other than those selected by the owner." (emphasis added). V.T.C.A. Penal Code § 31.05(a)(4).

Plant Security Measures

The measures used by TI to secure its premises to prevent unauthorized personnel from admission to or exposure to its proprietary research data were reasonable under the circumstances. The issuance of identification badges, use of security guards and closed-circuit television monitors, entry to the speech lab limited to small number of personnel, nighttime security checks, etc. are fairly common to research oriented industries. Although these measures relate to the TI plant and not specifically or uniquely to the speech lab, they do affect and serve to limit access to the speech lab, and therefore serve to protect the trade secret status of the information developed therein.

Computer Software Access

Testimony at trial enumerated detailed restricted user access basically utilizing a series of passwords and restrictive codes in order to access the desired software utilities. Trade secret caselaw dealing with computer software recognizes these types of measures as protective of trade secret status. See generally, Annot, 53 A.L.R. 1046, § 7[a] (cases supporting trade secret status for computer software).

Other Measures

The court of appeals listed as one of the preventive measures the fact that the TI Trade Secret Register referred to "speech processing." Conflicting testimony indicates that the register entry may relate to a different area of speech research than that conducted in the lab by appellants and therefore did not refer to the software programs under indictment. We find the evidence inconclusive to support the theory that the register entry refers to the specific software involved in the instant case. It was also brought out in testimony that the Trade Secret Register was not timely updated and distributed to TI employees in accordance with the company policy manual. Further, the "admonitions" to lab personnel to protect lab software are simply too general in nature to determine whether they should be considered a protective measure. In fact, such "admonitions" were tempered with memoranda and conversations that encouraged sharing of information with others outside TI.

Correlative to the above-mentioned Trade Secret Register and "admonitions" regarding non-disclosure, appellants also claimed that they were not informed by TI that the programs which they worked on at TI and later took with, them to VCS were trade secrets. In support of this contention, they point out that the TI Trade Secret Register was not updated and distributed to employees in a timely manner as was required by the company policy manual. They further contend that the "speech processing" entry in the Register is not the speech research with which they were involved. In addition, they claim that extensive dissemination of certain information destroyed any secrecy that may have existed or been intended. Clearly, the contractual agreements that appellants made with TI gave appellants ample notice that their employment would be directed towards proprietary and trade secret information. Indeed the actual programs they developed were not in existence at the time they signed the initial agreements, so they could not have been named definitively. Granted, a stronger case for the State would have resulted from the naming of the subject programs in the exit interview agreements. Even so, if the programs were trade secrets at time of creation, there is insufficient evidence to suggest that trade secret status was destroyed prior to the exit interview. Because the exit interview agreement covers trade secrets, and the exit form itself states that it is non-exclusive, listing of the specific programs was not a requirement to maintain trade secret status.

Conclusion

We need not decide today whether any one of the preventive measures listed, standing alone, is factually sufficient to support trade secret status. We do find that the combination of employment agreements, strict plant security, restricted computer access, the non-authorization of disclosure of the subject programs and the general non-disclosure of those programs by TI and its employees served to support trade secret status of the computer programs that are the subject of the instant indictments. Appellants neither requested nor received permission to copy the files containing these programs. The unauthorized copying of an article representing a trade secret constitutes an offense under V.T.C.A. Penal Code § 31.05(b)(2). Therefore we affirm the court of appeals' ruling that the subject programs are trade secrets. Appellants' first ground for review is overruled.

Search Issue

In their second ground for review, appellants contend the court of appeals erred in holding the search warrant sufficiently described the magnetic tapes that were seized and that the tapes were not seized pursuant to a general exploratory search.^[8] We have reviewed the court of appeals' opinions and, as they pertain to the facts of this case, we adopt its treatment of the appellants fourth point of error. See Leonard, 767 S.W.2d at 181-82, and Schalk, 767 S.W.2d at 452-53. The court of appeals framed this issue under Art. I, § 9 of the Texas Constitution, although also citing federal precedent. In our recent decision in Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991), we expressly concluded that this Court, when analyzing and interpreting Art. I, § 9 of our constitution, would not be bound by decisions of the United States Supreme Court addressing the comparable Fourth Amendment issue. Id. The question of whether our state constitution should provide more protection than the federal constitution in this case was not presented in the appellants' second ground for review, and we therefore express no opinion on that issue. See Id., at 690-91, fn. 23 (Court requires separate ground and substantive analysis on state and federal constitutional claim). With this caveat, however, we approve of the court of appeals' opinion on appellants' fourth point of error, and, thus, we overrule appellants' second ground for review. January v. State, 732 S.W.2d 632 (Tex.Cr.App.1987).

Accordingly, the judgment of the court of appeals is affirmed.

McCORMICK, PJ., concurs in the result.

CLINTON, J., dissents to disposition of the second ground for review.

NOTES

[1] Schalk and Leonard were charged in separate indictments in cause nos. F-85-98689-M and 85-9860-MHM, each charge for the offense of theft of trade secrets. Because of the close relationship between the two causes, appellants were tried jointly.

[2] Now the Texas Department of Criminal Justice, Institutional Division.

[3] The remaining grounds allege that the evidence was insufficient to prove that both appellants "knowingly" committed the offense, error resulting from jury misconduct, and unconstitutionality of Texas Penal Code § 31.05.

[4] The definition in the Restatement of Torts, § 757, as approved in Huffines, 314 S.W.2d at 776 reads in pertinent part:

b. Definition of trade secret. A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers....

[5] Paragraphs B., C, D., and F. refer to procedures for handling proprietary or trade secret information received from outside TI.

[6] Appellants argue that TI relied on the patent process for protection of its speech research software, rather than trade secret status. We note, without further comment, that reliance on the "patent process" will not protect trade secrets prior to the issuance of the patent because the information remains a secret until the patent is issued. Upon issuance of a patent, the subject information becomes part of the public domain and is no longer protected by trade secret law. Luccous v. Kinley Co., 376 S.W.2d 336 (Tex. 1964).

[7] To facilitate an understanding of the technical terminology referenced in Dr. Doddington's testimony, we offer the following definitions obtained from Sippl, Computer Dictionary (4th ed.):

algorithm—a defined process or set of rules that leads and assures development of a desired output from a given input; a sequence of formulas and/or algebraic/logical steps to calculate or determine a given task; processing rules.

data base—a data base is a collection of data arranged in files used for more than one purpose.

program—a plan for the automatic solution of a problem. A complete program includes plans for the transcription of data, coding for the computer, and plans for the absorption of the result into the system. The list of coded instructions is called a routine. Programming consists of planning and coding, including numerical analysis, specification of printing formats, and any other functions necessary to the integration of a computer into a system.

software—various programming aids that are frequently supplied by the manufacturers to facilitate the purchaser's efficient operation of the equipment. Such software items include various assemblers, generators, subroutine libraries, compilers, operating systems, and industry application programs,

system—an assembly of components united by some form of regulated interaction to form an organized whole; a devised and designed regular or special method, plan, methodology, or procedure. The organization of hardware, software, and people for cooperative operation to complete a set of tasks for desired purposes.

[8] We have attached to this opinion copies of the search warrant, related orders, and protective orders as Appendix 1.