Long v. State
| Decision Date | 28 June 2017 |
| Docket Number | NO. PD-0984-15,PD-0984-15 |
| Citation | 535 S.W.3d 511 |
| Parties | Wendee LONG, Appellant v. The STATE of Texas |
| Court | Texas Court of Criminal Appeals |
ATTORNEYS FOR APPELLANT: Bruce Anton, Sorrels, Udashen & Anton, Dallas, TX.
ATTORNEYS FOR THE STATE: John R. Messinger, Assistant State Prosecuting Attorney, Stacey Soule, Austin, TX.
Does the definition of "oral communication" in the state wiretap statute incorporate the expectation-of-privacy test? We hold that it does. Under this standard, does a high school basketball coach have an expectation of privacy in his team's locker room during halftime? We hold that under the circumstances presented in this case, he does. Consequently, we affirm Appellant's conviction for her role in the interception of the coach's communication with his team in the team's locker room.1
There is relatively little disagreement on what happened. At the time of the offense, Wendee Long was the principal of Wayside Middle School in Saginaw, Texas and a member of the Argyle I.S.D. school board. Long's daughter, C.L., attended Argyle High School and traveled to Sanger High School to attend a girls' high-school basketball game between the two rivals. It was the last game of the season, and the Argyle team was one game behind the Sanger team in the standings.
Shortly before halftime, C.L. went to sit with a friend of hers, P.S., who also happened to be a student at Sanger High School. C.L. claimed to be a "team manager" for the Argyle girls' basketball team, and asked her friend for help getting into the visitor's locker room. P.S. knew that team managers for visiting teams would be allowed into the visitor's locker room, so she agreed to show C.L. where the visitor's locker room was located.
All teams that visit another school for an athletic event are assigned a visitor's locker room. In this case, the visitor's locker room was at the end of a hall of three locker rooms. One must pass through two sets of doors to enter the locker room. The first set of doors leads to a little "nothing" room and the second set opened into the locker room itself. The room consisted of a changing area in front of lockers and a separate area for showers and toilets.
The girls' basketball coach, Lelon "Skip" Townsend, described the locker room as a private area to get away from the people that are at the ball game and allow the coaches and teammates to meet and discuss aspects of the game or do team activities such as pray. It was Coach Townsend's understanding that no one was supposed to be able to access the locker room except the Argyle team and the coaches. Team members could use the locker room to store their belongings and get dressed, though no male coaches were allowed in while the female players were dressing. Coach Townsend acknowledged that "sometimes" a locker room could be thought of as a sports classroom, but no one disputed that the access to the locker room was limited to Argyle team members and the coaches.
On the way to the locker room, C.L. informed her friend that she was going to set up her phone in the locker room to record Coach Townsend's halftime speech. After C.L. entered the locker room, she set her phone inside the door to one of the small lockers and taped the phone so it would not fall once the locker was shut. From that position, the phone made an audio and visual recording of the coach's halftime speech.
After halftime was over, C.L. and P.S. returned to the locker room to retrieve the phone. C.L. showed the recording to another friend of hers and asked that friend for help in cropping the video. Unfortunately, C.L. deleted some of the recording while trying to crop it, so she returned to the locker room to make another recording. She was able to obtain additional audio of the coach speaking to the basketball team after the game, but not additional video because the camera fell down after the locker was closed. The video portion of the first recording reveals that Coach Townsend gave his halftime speech in the changing area of the girls' locker room. However, the girls were not changing clothes at the time.
A copy of both recordings spliced together was emailed to all the members of the school board in advance of the school board taking up the issue of whether to award Coach Townsend a term contract. Notably, some audio on the recording emailed to the school board members was edited in such a manner that particular statements made by Coach Townsend during his speeches were copied and then repeated at the end of the recording. None of the girls on the team were aware they were being recorded, and Coach Townsend did not give anyone permission to record his remarks to his team.
At some point, Long showed one of her assistant principals a part of the video. Long also told that assistant principal that her husband was angry because he believed Long was allowing C.L. "to take the fall" for the recording. The superintendent for the school district eventually delivered a copy of the recording to the police.
A detective with the Sanger Police Department requested the cell phones for Long's two daughters. Long's husband provided C.L.'s phone, but it was a brand new phone. When police requested the phone that C.L. had been using around the time of the taping, they discovered that the screen had been shattered. They were also unable to get access to the hard drive on Long's personal computer because it had been replaced.
However, the police did get access to Long's work computer. On that computer, they found a copy of the recording turned over to the police by the superintendent. Long's computer also contained an additional, longer copy of the recording that had additional footage. This footage included a video recording of Long's daughter returning to the locker room to retrieve the phone after the halftime speech. The footage of Long's daughter was not included on the copy of the video that was distributed to the school board.
Long also provided to police an unsigned, typed statement attempting to explain the chain of events. According to Long, "the journey to this bad decision" started a year before the incident. The original girls' basketball coach was pulled from the "approval list" shortly before his contract was up for renewal, and Long was unsure as to why. When a special board meeting was called to hire both Coach Townsend and his wife, Long became concerned because she was unaware of any other position opening other than the coach position and she had done her own research into the contacts provided by the Townsends. Long was unable to attend the special board meeting and, according to Long, the Townsends were hired with just enough votes.
Long spent the bulk of her written statement detailing complaints against Coach Townsend. According to Long, numerous parents approached her to complain that Coach Townsend was too mean, and that neither the principal nor the school's athletic director would do anything to remedy the situation. Paradoxically, Long also explained that several of these parents were AISD employees who had come forward to complain to her that they were afraid to come forward generally due to fear that they might lose their jobs. Out of the five-page, single-spaced, typed statement, Long devoted only four paragraphs to details about the recording.
According to Long, the recording was her daughter's idea. Long related that her daughter had initially tried to get a recording of Coach Townsend during a game between Argyle and Gainesville because "someone has to let people see how he acts to them." However, C.L. informed Long that she was unable to get the recording because policemen were there. According to Long, C.L. called her after the Argyle-Sanger game to say that she had gotten the recording by taping the phone to a locker and placing it on airplane mode so that there were no interruptions.
Finally, Long added that in March, before the board meeting to discuss Coach Townsend's contract, she happened upon the video on her personal computer, claiming it had been downloaded by C.L. Upon seeing the recording, Long claimed to have wondered whether the school board would understand "a little of what is trying to be explained" if they were to see Coach Townsend in action. However, she denied that the video was ever made to catch the girls on the team dressing or undressing, stating that it was only made "in the hopes of the leadership of the district being able to see Coach Townsend's treatment of 15-18 year old girls." Long concedes that she sent the recordings to the school board.
The State charged Long with the unlawful interception of oral communication, or electronic eavesdropping, alleging in two paragraphs that she had violated Section 16.02 of the Texas Penal Code. Section 16.02(b)(1) makes it a crime when a person "intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication[.]"2 Section 16.02(b)(2) provides that a person commits a crime when that person "intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation of [subsection (b) ]."3
Section 16.02 does not define many of the terms of the offense; rather, it specifically incorporates the definitions found in Article 18.20 of the Texas Code of Criminal Procedure.4 Under Article 18.20, "oral communication" means "an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation."5 "Intercept" means "the aural or other acquisition of the contents of a wire, oral, or electronic...
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