McArthur v. State

• Decision Date: 30 August 1999
• Citation: 1 S.W.3d 323
• Parties: (Tex.App.-Fort Worth 1999) DARYL THOMAS MCARTHUR, APPELLANT v. THE STATE OF TEXAS, STATE NO. 2-98-482-CR
• Court: Texas Court of Appeals

Page 323

1 S.W.3d 323 (Tex.App.-Fort Worth 1999)

DARYL THOMAS MCARTHUR, APPELLANT v. THE STATE OF TEXAS, STATE

NO. 2-98-482-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS, FORT WORTH

August 30, 1999

Rehearing Overruled October 7, 1999

FROM THE 362ND DISTRICT COURT OF DENTON COUNTY, RE: Case No. 2-98-482-CR , Trial Court no. F-97-1144-D [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

PANEL B: LIVINGSTON, BRIGHAM, HOLMAN, DAUPHINOT, and RICHARDS, JJ.

OPINION

TERRIE LIVINGSTON, Justice

In twelve points, appellant Daryl Thomas McArthur appeals from his conviction on two counts of indecency with a child. In points one through four, he argues that the trial court erred by failing to suppress evidence obtained as a result of his telephone calls being traced. In his remaining points, appellant argues that several conditions of his community supervision are improper. Because we determine that there was no error in the trial court's failure to suppress the evidence, we overrule appellant's first four points. Because we conclude that the second sentence of term (gg) and all of term (ll) of appellant's community supervision were improper, we delete those terms and affirm the trial court's imposition of all other conditions of probation.

I. BACKGROUND

On July 10, 1997, appellant telephoned a crisis operator at the Denton County Mental Health and Mental Retardation Department ("MHMR"). In that conversation, appellant stated that he had fondled his twelve-year-old daughter. From appellant's tone and the nature of the conversation, the operator felt that someone, possibly appellant, was in danger. As a result, she temporarily placed appellant on hold and requested that the Denton Police Department (DPD) trace the call. While on hold, appellant hung up. The operator then reported the possible assault to Child Protective Services.

Later that same day, appellant called MHMR again. Kathleen Kern, another operator, answered. After a brief conversation, appellant abruptly hung up. Kern also requested that the call be traced because appellant had told her he thought about killing himself. Appellant called the following day and again spoke briefly with Kern. As before, Kern requested that the called be traced.

MHMR recorded the content of the first two conversations. MHMR's requests that the calls be traced was forwarded to the DPD. DPD, in turn requested General Telephone Electric (GTE) to trace the calls. GTE traced the calls to Services Programs for Aging Needs (SPAN), a nonprofit agency that provides busing and other services in Denton County.

Detective Bryan Lee then met with two SPAN supervisors and determined appellant's identity from MHMR's recordings and that he lived in nearby Argyle. Detective Lee referred the case to Tom Tackett of the Argyle Police Department, who began an investigation. Tackett interviewed appellant, at which time appellant admitted that he had fondled his daughter on three or four occasions. In a separate interview, appellant's daughter corroborated appellant's admission.

Appellant was charged with two counts of indecency with a child. He moved to suppress all evidence obtained as a result of the phone calls being traced. The trial court overruled appellant's motion to suppress, and appellant was convicted of both counts and placed on ten years' community supervision. This appeal followed.

II. SUPPRESSION OF EVIDENCE

In points one through four, appellant argues that the trial court erred by failing to suppress evidence obtained as a result of his phone calls being traced.¹ Specifically, appellant contends in point one that a "trap and trace² device was used and that its use was an unreasonable search under the Fourth Amendment. In point two, he argues that the trace was an unreasonable search under the Texas Constitution and that the subsequent admission of evidence obtained as a result of the trace was a violation of article 38.23 of the code of criminal procedure. In point three, he argues that the trace violated section 16.03 of the penal code and in point four, he contends the trace violated article 18.21 of the code of criminal procedure.

A. Standard of Review

In Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997), the court of criminal appeals clarified the standard of review to be used by appellate courts in reviewing a trial court's order on a motion to suppress evidence obtained through a search incident to a warrantless arrest. Id. at 87-89. In Loserth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998), the court of criminal appeals stated that the Guzman construct applied to all motions to suppress. Id. at 771.

Determination of the appropriate standard of appellate review depends on the type of question presented. See Guzman, 955 S.W.2d at 87-89. Guzman recognizes three types of questions: (1) historical facts that the record supports, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor; (2) application of law to fact questions, i.e., mixed questions of law and fact, when the ultimate resolution of those questions turns on an evaluation of credibility and demeanor; and (3) mixed questions of law and fact when the resolution of those questions does not turn on an evaluation of credibility and demeanor. See id. at 89; see also Loserth, 963 S.W.2d at 772. In reviewing the first two categories of questions, an appellate court should show "almost total deference" to a trial court's determination because of a trial court's exclusive fact-finding role and because a trial court is in an appreciably better position to decide the issue. Guzman, 955 S.W.2d at 89. In reviewing the third type of question, where the resolution of the issue does not turn on an evaluation of credibility and demeanor, an appellate court is in as good a position to review the issue as the trial court; therefore, an appellate court determines the issue independently, or de novo. Because the historical facts in the present case are not in dispute, the proper standard of review is de novo. See Loesch v. State, 958 S.W.2d 830, 831-32 (Tex. Crim. App. 1997); Guzman, 955 S.W.2d at 87.

B. Fourth Amendment

For Fourth Amendment purposes, the issue in this case is whether appellant could have a "justifiable, reasonable, or legitimate expectation of privacy" in the information revealed when his telephone calls were traced. See Smith v. Maryland, 442 U.S. 735, 741, 99 S. Ct. 2577, 2581 (1979). Determination of a privacy interest requires an examination of two issues: whether appellant, by his conduct, "has exhibited an actual (subjective) expectation of privacy" and whether this subjective expectation of privacy is one which "society is prepared to recognize as 'reasonable.'" Id. at 740, 99 S. Ct. at 2580.

The Supreme Court has unequivocally stated that the electronic impulses indicating the transmission or reception of received telephone communications are automatically and voluntarily conveyed to the telephone company; thus, no legitimate expectation of privacy exists. See id. at 744-45, 99 S. Ct. at 2582. This, in large part, is based on the fact that telephone subscribers have no reasonable expectation that records of their calls will not be made and that those records will not be disclosed. See United States v. Clegg, 509 F.2d 605, 610 (5th Cir. 1975). Fourth Amendment protection extends only to the content of a telephone conversation and not the fact that a call was placed or that a particular number was dialed. See Smith, 442 U.S. at 744-45, 99 S. Ct. at 2582-83.

Here, GTE monitored only the electronic impulses indicating the origin of the incoming calls; nothing else was noted. Consequently, appellant has no legitimate expectation of privacy; therefore, this was not a search proscribed by the Fourth Amendment. We overrule point one.

C. Article I, Section 9

In point two, appellant argues the trial court erred by admitting evidence seized in violation of his state constitutional guarantee against unreasonable searches. That is, he argues the trace violates article I, section 9 of the Texas Constitution and because it does, it also violates article 38.23 of the code of criminal procedure, the statutory exclusionary rule. See TEX. CONST. art. I, 9; TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon Supp. 1999). He cites us to Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993) for the proposition that a "pen register" may be a search under the Texas Constitution.³ The State concedes that under the state constitution a legitimate privacy interest may exist in phone records, but it contends appellant has no standing to complain because the privacy interest in the phone records belongs to appellant's employer. We agree.

The purpose of both the Fourth Amendment and article I, section 9 is to safeguard an individual's legitimate expectation of privacy from unreasonable governmental intrusions. See Green v. State, 566 S.W.2d 578, 582 (Tex. Crim. App. 1978). Those safeguards protect people not places. See id.

Under this approach, the substantive question of what is a search is effectively merged into the procedural question of "standing" to challenge such a search. See Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430 (1978); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). It is now a matter, not only of whether the government has breached some "reasonable," "justifiable," or "legitimate expectation of privacy" that existed in a particular place, Katz v. United States, 389 U.S. 347, 351-53, 88 S. Ct. 507, 511-12 (1967), but also of who reasonably, justifiably, or legitimately harbored that expectation. See Chapa v. State, 729 S.W.2d 723, 727 (Tex. Crim. App. 1987). Furthermore, the accused has the burden of proving facts establishing a legitimate expectation of privacy. See Calloway v. State, 743 S.W.2d 645, 650 (Tex. Crim. App. 1988).

In this case, the record does not indicate that appellant...