Leonard v. State, 05-86-01172-CR

• Decision Date: 22 December 1988
• Docket Number: No. 05-86-01172-CR,05-86-01172-CR
• Citation: 767 S.W.2d 171
• Parties: Robert Gary LEONARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 171

767 S.W.2d 171

Robert Gary LEONARD, Appellant, v. The STATE of Texas, Appellee.

No. 05-86-01172-CR.

Court of Appeals of Texas Dallas.

Dec. 22, 1988.

Rehearing Denied Feb. 10, 1989.

John H. Hagler, Michael P. Carnes, Dallas, for appellant.

Kathi Alyce Drew, Anne B. Wetherholt, Dallas, for appellee.

Before DEVANY, McCLUNG and THOMAS, JJ.

McCLUNG, Justice.

This is an appeal from a jury trial for the theft of trade secrets. Appellant was found guilty and assessed punishment at two years confinement and a fine of $5,000, probated for two years.

Specifically, appellant was indicted under Texas Penal Code section 31.05 for knowingly making a copy of five separately identified computer programs that were the trade secrets of his employer.

Appellant contends that: 1) the evidence is insufficient to establish that the five computer programs listed in the indictment were, in fact, trade secrets; 2) the evidence is insufficient to prove that appellant knowingly committed the offense charged; 3)

his motion to suppress the product of the search warrant for lack of probable cause should have been sustained; 4) the evidence was the product of an impermissible general exploratory search; and, 5) jury misconduct occurred. Having found no error, we affirm the judgment of the trial court.

FACTS

The complainant, appellant's former employer, is a major corporation with world-wide facilities and engaged primarily in the electronics industry in various capacities. This case involves a computer programming area sometimes referred to as speech synthesis, or voice recognition. It can be described in an oversimplified manner as a computer software program that causes a device to respond in a specified manner to commands issued orally or by voice. The complainant is generally understood to be a pioneer in this field and an industry leader in the research and development of this type programming for various applications.

The complainant kept and maintained a facility on their premises in Dallas designated as the "speech research laboratory" where this type of programing, research and development was conducted. Appellant had been employed by the complainant for approximately twelve years as an engineer in the speech laboratory. The laboratory was kept physically separated from other facilities within the confines of the overall premises. Access to the laboratory was limited to only certain authorized personnel, estimated to be something less than one hundred out of the several thousand that were admitted daily through the gates of the fences around the perimeter. The exterior gates were monitored by security guards around the clock. Speech laboratory employees were required to wear a certain type identity badge to gain access to the laboratory. Appellant, as an employee in this speech laboratory, was provided with the appropriate identity badge and was one of the limited group of employees granted access to the laboratory.

While so employed, appellant was under the direct supervision and authority of the Branch Manager of the Speech Research Laboratory. This branch manager was also known as the Chief Speech Scientist. Over the years of appellant's employment, his relationship with the department head became somewhat informal; however, the branch manager was appellant's immediate superior, and appellant always received all job assignments from the Chief Speech Scientist and was responsible directly to him. Appellant's immediate superior had been associated with the complainant company for many years prior to appellant's employment and, as Chief Speech Scientist, had originally written many of the programs utilized in the research conducted in the speech laboratory. Part of appellant's primary job assignment was to modify or convert certain portions of those original programs so as to accomplish a specific result, such as producing sounds from a speaker rather than a visual output displayed on a video screen, on receipt of an oral command. The final product, while perhaps producing a different result, was primarily made up of the basic original program that had been previously developed and carefully preserved as confidential by the complainant company.

These programs were stored in a memory bank of a computer system in the speech laboratory. Appellant was allowed access to these programs through a code or password specifically assigned to him. The password or code assigned to an employee in the laboratory was personal to that employee and was assigned only if their job duties required access to the information and any of those confidential programs stored in the memory bank. Essentially, access was permitted on a "need to know basis" as it related to their duties. Only by the proper use of his assigned password or code could appellant withdraw information from a memory bank and into a computer terminal. Appellant could also call data from the memory bank into a computer terminal located off of the complainant's premises via telephone modem, with the right kind of computer equipment and the use of his personal password. On certain occasions, persons from outside the company were assigned a guest/user password or As was customary with all laboratory employees, appellant had a "directory" designated as his and identified as such. Appellant's work product was saved or stored under this directory in the memory bank of the computer in the speech laboratory. Appellant also could, and did, store other data, programs and information in this same directory, some of which was personal to him. The speech laboratory computer equipment had the capability of receiving from, sending to, or copying to another medium, such as magnetic tape, any information stored in the memory when the appropriate instructions or commands were entered. Whenever a computer memory was accessed, the date, time, and identification of the user and the terminal was automatically logged into the memory. Appellant was experienced and very sophisticated in the use of this equipment and was a top level employee in the laboratory, working at a computer terminal regularly on a full time basis.

code so as to allow access to the computer within the laboratory. This decision and assignment, however, was made by persons within the company other than appellant, and appellant was not consulted or involved in such a decision.

Appellant resigned his position with the complainant company to take a position as a vice-president with another company that also engaged in voice recognition and speech synthesis research and development. Although this new company was much smaller in overall size and scope and said to be utilizing a different method or system, the new employer was in fact a direct competitor of the complainant in the area of voice control technology. Appellant's background, knowledge, and experience in this field was a major factor in making the new job available to him.

Over a period of a few years, several other speech laboratory personnel had left the complainant's employment to take positions with this same new employer, primarily because their specialized knowledge in this field gave them unique qualifications that competitive companies would seek out. One such employee had occasion to see some information stored in the memory of the computer he was using on his new job that he believed he recognized and he thought belonged to his former employer, the complainant. Feeling something was amiss, this employee contacted complainant's company security to report what he had seen. (This informant acknowledged that he felt that he had been wrongfully terminated previously by the complainant and that he hoped that bringing this information to the complainant's attention would help get his old job back.) A series of meetings between security personnel and the informant promptly took place and during these meetings, additional information was delivered. The informant was also recruited to act as a "mole" to search his employer's premises and equipment for further information or like material. The mole took several photos of various offices and their contents and made copies of some documents he thought belonged to the complainant and contained sensitive material. One of the photographs taken in appellant's office revealed a shelf containing one or more magnetic tapes of the type used to store computer data. Although the contents of the tapes were unknown at that time, at least one of them bore a label with the names of certain programs which the mole recognized from his former employment and job assignments with the complainant.

The information from the informant was passed along through the complainant's corporate structure, and an internal investigation within the speech laboratory took place. From the automatic entries made when the computer memory was accessed, the complainant determined that only a few hours before appellant left complainant's employ, a copy of the entire directory assigned to appellant was made onto a magnetic tape by someone using the personal access code assigned to the appellant. Imbedded within that directory and the information copied onto that tape from that directory were programs identified by the complainant to be trade secrets. Among these were the five programs that were ultimately made the subject of this indictment.

Armed with this information, complainant contacted the District Attorney. A search warrant for the premises of appellant's employer was obtained and executed shortly thereafter. During this search, the tape in question was among the items seized from appellant's office. Examination of the data recorded on the tape using compatible equipment revealed that it did, in fact, contain the five programs listed on the indictment. Appellant was arrested at the time the search warrant was executed at his place of employment.

Appellant does not dispute the fact that he did copy the directory that had a plethora of data...