Castillo v. State

• Decision Date: 31 October 1990
• Docket Number: Nos. 339-89,s. 339-89
• Citation: 810 S.W.2d 180
• Parties: Josephine CASTILLO, Ysidro Castillo Sr., and Jose Morones, v. The STATE of Texas, Appellee. to 341-89.
• Court: Texas Court of Criminal Appeals

Page 180

810 S.W.2d 180

Josephine CASTILLO, Ysidro Castillo Sr., and Jose Morones, v. The STATE of Texas, Appellee.

Nos. 339-89 to 341-89.

Court of Criminal Appeals of Texas En Banc.

Oct. 31, 1990.

Rehearing Overruled June 12, 1991.

Douglas D. Mulder and John H. Hagler, Dallas, for appellants.

Patrick C. Batchelor, Dist. Atty., Corsicana, Jim Vollers, Sp. Prosecutor, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANTS' PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellants Josephine Castillo, Ysidro Castillo Sr., and Jose Morones were tried jointly and found guilty of the offense of engaging in organized criminal activity by conspiring with Gilberto Salinas and Flavio Quintanilla to deliver more than 200 pounds but less than 2000 pounds of marihuana. Tex.Penal Code § 71.02(a)(5). The jury assessed punishment for each of the Castillos at imprisonment for 75 years and a $100,000 fine. Morones' punishment was assessed by the jury at imprisonment for 15 years and a $100,000 fine. The Tenth Court of Appeals, sitting in Waco, affirmed all three convictions. 761 S.W.2d 495. We granted appellants' joint petition for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(4), in order to determine whether the court of appeals correctly interpreted the wiretap authorization provision contained in Article 18.20, § 3 of the Texas Code of Criminal Procedure. Concluding that the court of appeals erred in its interpretation but that the error was harmless, we will affirm the judgment of the court of appeals.

On March 23, 1987, the Ellis County district attorney and the Navarro County criminal district attorney made application to the Honorable Mace B. Thurman, 147th district court judge of Travis County, for orders authorizing wiretaps on the Ellis County telephones of Nickey Rutledge and Carolina Castillo. Judge Thurman, the judge lawfully empowered to order electronic "intercepts" in the Third Administrative Judicial District, issued the intercept orders as requested, although Ellis County is located in the adjacent First Administrative Judicial District. See Tex.Gov't Code § 74.042(b). The listening post for the wiretaps, however, was located in Navarro County, which is in the Third Administrative Judicial District. See Tex.Gov't Code § 74.042(d). On March 31, the Navarro County criminal district attorney requested and obtained from Judge Thurman an order authorizing a third wiretap, this time on the Navarro County telephone of appellant Josephine Castillo. The probable cause affidavit for the third wiretap relied in part on information derived from the first two wiretaps.

On April 13, 1987, officers of the Texas Department of Public Safety tape-recorded a conversation acquired through the third wiretap. See Appendix. The contents of that conversation were admitted in evidence at appellants' trial over their objection. Appellants argued that the contents of the conversation should be suppressed under Article 18.20, § 2 (wiretap statute exclusionary rule) because the conversation was acquired through an unlawfully authorized wiretap. More specifically, appellants argued that under Article 18.20, § 3(b), Judge Thurman had no power to authorize the Ellis County wiretaps because that county is not in Judge Thurman's administrative judicial district; that all information derived from the Ellis County was therefore tainted; and that all information from the Navarro County wiretap was also tainted because that wiretap was authorized in part based on information obtained from the Ellis County wiretaps. See United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) (under Title III, faulty authorization of initial wiretap application invalidated extension order and tainted evidence derived from extension order); United States v. Spagnuolo, 549 F.2d 705, 711 (9th Cir.1977) (when evidence from wiretap # 1 is tainted and used as probable cause to obtain wiretap # 2, evidence from wiretap # 2 is also tainted); J. Carr, The Law of Electronic Surveillance § 6.4(b)(2) at 6-95 (1990) ("Where it is later determined that the original [wiretap] order was improperly requested, issued, or executed, and the evidence derived therefrom is suppressed, any subsequent eavesdropping orders based on information derived from the original surveillance may be tainted.").

The Waco court of appeals, relying upon Evans v. State, 252 Ga. 312, 314 S.E.2d 421 (1984), held that under Article 18.20, § 3(b), a telecommunication is electronically "intercepted" wherever it is "heard and recorded" by law enforcement personnel, and that since the Ellis County conversations were heard and recorded at the Navarro County listening post, "Judge Thurman was a proper judge to issue the intercept order[s]." 761 S.W.2d at 505. The court of appeals held in the alternative that exigent circumstances existed to warrant Judge Thurman's first two intercept orders under Article 18.20, § 3(c):

The [original] application stated the location of the telephones in Ellis County were small communities; that 30 officers would be required to maintain them; that there was danger of compromise of the investigation if monitoring occurred in Ellis County; and that there was close association between two of the parties to be monitored and an Ellis County police officer, and there was information concerning "pay off" of the Sheriff.

Since the exigent circumstances existed, the prosecutors were authorized under Article 18.20(3)c to apply to the Third Judicial District for the order[s].

Id.

In their petition for discretionary review, appellants reiterate their argument that the contents of the April 13, 1987, telephone conversation should be suppressed. ¹ In its reply brief, the State argues that the court of appeals correctly interpreted Article 18.20, § 3. ²

In 1968 Congress passed Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2521. Title III regulates the electronic and mechanical interception of wire, oral, and electronic communications by government officials and private citizens. Title III also authorizes state legislatures to enact electronic surveillance statutes as long as those statutes "afford subjects of investigations at least as much protection from improper interception of protected communications as is afforded by the federal [statute]." G. Dix, The 1981 Texas Electronic Surveillance Statute, 7 T.Mar.L.Rev. 59, 60 (1981).

In 1981, the Texas Legislature passed its own electronic surveillance statute, Article 18.20 of the Texas Code of Criminal Procedure. On April 13, 1987, §§ 1(3) and 3(a)-(c) of Article 18.20 read in relevant part:

Sec. 1(3) "Intercept" means the aural acquisition of the contents of a wire or oral communication through the use of an electronic, mechanical, or other device.

* * * * * * Sec. 3(a) The presiding judge of the court of criminal appeals ... shall appoint one district judge from each of the administrative judicial districts ³ of this state to serve ... as the judge of competent jurisdiction within that administrative judicial district....

(b) Except as provided by Subsection (c) of this section, only the judge of competent jurisdiction for the administrative judicial district in which the proposed interception will be made may act on an application for authorization to intercept wire or oral communications.

(c) If the judge of competent jurisdiction for an administrative judicial district is absent or unable to serve or if exigent circumstances exist, the application may be made to the judge of competent jurisdiction in an adjacent administrative judicial district....

Act of June 1, 1981, 67th Leg., R.S., ch. 275, 1981 Tex.Gen.Laws 729, amended by Act of June 16, 1989, 71st Leg., R.S., ch. 1166, §§ 2 & 3, 1989 Tex.Gen.Laws 4783 (emphasis added). The definition of "intercept" was taken essentially verbatim from 18 U.S.C. § 2510(4). ⁴

Our initial task is to ascertain the meaning of the terms "aural acquisition" and "interception" as used in §§ 1(3) and 3(b). In the interpretation of these sections, we must, of course, attempt to effectuate the collective "intent" or "purpose" of the Legislature. Camacho v. State, 765 S.W.2d 431 (Tex.Cr.App.1989). We may consider the legislative history of the statute as well as the consequences of any particular construction. Tex.Gov't Code §§ 311.023(3) & (5). ⁵ We must presume that the Legislature intended a reasonable result. Tex.Gov't Code § 311.021(3). Finally, because § 1(3) was borrowed from the federal wiretap statute, it is appropriate for us to consider the construction placed upon the federal statute by other courts. State v. Klein, 154 Tex.Crim. 31, 224 S.W.2d 250 (App.1949).

Our research reveals two cases in which appellate courts, facing similar factual patterns, have interpreted the identical "aural acquisition" language used in the federal statute. In the case relied upon by the court of appeals, Evans v. State, supra, a Georgia state superior court judge whose jurisdiction was the Atlanta Judicial Circuit authorized wiretaps on 41 telephones, 23 of which were not in the Atlanta Judicial District. The Georgia defendant argued that evidence obtained from the 23 taps outside the judge's district should be suppressed because the judge had no power under the federal statute to authorize wiretaps outside his territorial jurisdiction. The Georgia Supreme Court held, though, that because the listening post, where all the tapped communications were recorded, was in the Atlanta Judicial District, the superior court judge had territorial jurisdiction under the federal statute to order all 41 wiretaps. The Court held, in effect, that under the federal statute, a communication is "aurally acquired" at the place where it is heard and recorded by law enforcement personnel.

In United States v. Nelson, 837 F.2d 1519 (11th Cir.), cert. denied, 488 U.S. 829, 109...