Alameda, Efrain

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-0231-06

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EFRAIN ALAMEDA, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS TARRANT COUNTY

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   Keller, P.J., filed a concurring opinion in which KEASLER, and HERVEY, JJ., joined.

Three salient facts bear on the admissibility of the tape recording in this case: (1) one of the parties to the recorded conversations was the minor child of a parent conducting the recording, (2) the recording was conducted by the parent as part of caring for the child's welfare, and (3) the recording occurred through a telephone jack located in the parent's home. Because of these three facts, I would hold that the recording did not constitute "interception" under the Texas wiretap statute.

For a crime to occur under the wiretap statute, there must be an interception or an intended interception of a wire, oral or electronic communication. ⁽¹⁾ The statute provides that "intercept" has the same meaning as defined under Article 18.20 of the Code of Criminal Procedure, governing law-enforcement-related wiretaps. ⁽²⁾ Under Article 18.20, "intercept" 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." ⁽³⁾ This definition in turn relies upon the definition of "electronic, mechanical, or other device," which explicitly excludes certain types of instruments or equipment. ⁽⁴⁾ Among other things, the wiretap statute excludes from its reach "a telephone or telegraph instrument, [or] equipment . . . used for the transmission of electronic communications, . . . if the . . . instrument [or] equipment . . . is . . . furnished to the subscriber or user by a provider of wire or electronic communications service in the ordinary course of the provider's business and being used by the subscriber or user in the ordinary course of its business." ⁽⁵⁾

All of this language is virtually identical to language in the federal wiretap statute. In reviewing the legislative history of the federal counterpart to this provision (what has become known as the "extension phone" exception), the Second Circuit explained that the exception originally contained no "ordinary course of business" limitation. ⁽⁶⁾ This limitation was added after Professor Herman Schwartz, testifying on behalf of the A.C.L.U., complained that the unqualified language would allow policemen and private intruders to enter others' homes and listen in on extension phones without penalty. ⁽⁷⁾ But, declining to recommend that the entire exception be deleted, Professor Schwartz commented, "I take it nobody wants to make it a crime for a father to listen in on his teenage daughter or some such related problem." ⁽⁸⁾

Several federal appeals courts have applied the extension phone exception to in-home recording by a parent of a minor child's conversations because the recording was done within the ordinary course of the parent's business of caring for the child. ⁽⁹⁾ The Supreme Court of New Hampshire followed suit in interpreting the same language in its own wiretap statute. ⁽¹⁰⁾ I would follow these cases and hold that a parent's recording of a minor child's conversations from a telephone jack within the home for the purpose of caring for the child constitutes a use that is exempt from the wiretap statute.

With these comments, I join the opinion of the Court.

Filed: June 27, 2007

Publish

1. Tex. Pen. Code §16.02(b).

2. §16.02(a).

3. Tex. Code Crim. Proc. Art. 18.20, §1(3).

4. Art. 18.20, §1(4).

5. Art. 18.20, §1(4)(A)(emphasis added).

6. Anonymous v. Anonymous, 558 F.3d 677, 679 (2^nd Cir. 1977).

7. Id.

8. Id. (quoting Hearings on the Anti-Crime Program Before Subcomm. No. 5 of the House Judiciary Comm., 90^th Cong., 1^st Sess. 901 (1967)).

9. Scheib v. Grant, 22 F.3d 149, 153-55 (7^th Cir. 1994); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10^th Cir. 1991); Janecka v. Franklin, 843 F.2d 110, 111 (2^nd Cir. 1988), affirming and approving district court opinion at 684 F. Supp. 24 (S.D.N.Y. 1987); Anonymous, 558 F.2d at 679. But see Pollock v. Pollock, 154 F.3d 601 (6^th Cir. 1998)(declining to follow these cases but citing them as some support for its holding exempting parental recording of a minor child's conversations under the "consent" exception to the wiretap statute).

10. State v. Telles 139 N.H. 344, 346-47, 653 A.2d 554, 556-57 (1995).