White v. State

• Decision Date: 13 June 2018
• Docket Number: NO. PD–0442–17,PD–0442–17
• Citation: 549 S.W.3d 146
• Parties: Brian Jason WHITE, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

549 S.W.3d 146

Brian Jason WHITE, Appellant

v.The STATE of Texas

NO. PD–0442–17

Court of Criminal Appeals of Texas.

DELIVERED: June 13, 2018

Kyle Therrian, McKinney, for Brian Jason White.

Emily Johnson–Liu, for The State of Texas.

Richardson, J., delivered the opinion for a unanimous Court.

Appellant, Brian Jason White, was convicted of one count of engaging in organized criminal activity and one count of money laundering.¹ The trial court assessed his punishment at ten years imprisonment for each count, suspended for eight years of community supervision. The sentences were ordered to run concurrently, and White was ordered to pay restitution in the amount of $32,822.04. The Fifth Court of Appeals affirmed White's conviction.²

The issue before us involves the admission of an audio recording of a conversation between White, his co-defendant Ronald Robey, and a third party named "Brandon." The trial court admitted the recording into evidence over White's objection that it was inadmissible under Texas Code of Criminal Procedure Article 38.23.³ White argued on appeal that the recording was inadmissible under Article 38.23 because the State failed to prove that the recording was legally obtained and not in violation of Texas Penal Code § 16.02 (illegal wiretapping).⁴ The court of appeals held that "the trial court was authorized in finding the admission of the recording was not barred by Article 38.23."⁵ We agree with this ultimate conclusion and therefore affirm the judgment of the court of appeals.

BACKGROUND

Jason Earnhardt and his wife, complainants, were the sole owners of Earnhardt Restoration and Roofing ("ERR"). They had a business bank account at JP Morgan Chase. In May 2012, Earnhardt hired Ronald Robey as a sales manager to solicit business and hire salespeople to go door-to-door in neighborhoods that had been hail-damaged. Robey hired White and J.D. Roberts. All three signed a "project manager agreement," under which ERR agreed to pay the salesperson 50% of the net profit realized from each roofing job.

In June 2012, a storm hit Dallas and Collin Counties, causing extensive hail damage. Homeowners Mary Lou Thurman and Andrew McAdoo testified that in June 2012, White, on behalf of ERR, solicited business from them to fix their roofs. They each gave a check, payable to ERR, to White. Homeowners Inderjit Sethi, Siva Sankaramanch, and Jessica Carlton testified that in June and July 2012, J.D. Roberts, on behalf of ERR, solicited business from them to fix their roofs. They each gave a check, payable to ERR, to Roberts. All five checks totaled $32,822.04.

In late July 2012, Earnhardt became aware that some of ERR's customers had written checks that he had never received. Earnhardt also learned that ERR had customers he was not aware of. During that same time, ERR started receiving hundreds of calls and emails based on Craigslist ads that Earnhardt had not posted or authorized. As a result, Earnhardt had to shut down ERR's phone system. During that time, Robey had stopped coming to the office, and he had stopped communicating with ERR.

A man named "Brandon" contacted Earnhardt by telephone shortly thereafter.

Brandon told Earnhardt that he worked as an IT person for Robey, White, and Roberts. Brandon sent Earnhardt a copy of a recorded conversation on which Robey, Brandon, and White can be heard talking about the Craigslist postings used to "blow the phones up" at ERR. Earnhardt contacted the police.

The police investigation revealed that on July 30, 2012, an assumed name certificate was filed in Collin County under the name Earnhardt Restoration & Roofing, and listing Robey, Roberts, and White as owners. They had all signed the certificate and used it to open bank accounts under ERR's name, listing the three of them as owners of the bank accounts. White, Robey, and Roberts then deposited customers's checks made out to ERR directly into the accounts. Earnhardt was unaware of these accounts and was never given access to them.

Robey, Roberts, and White were all charged with engaging in organized criminal activity and money laundering. White and Robey were tried together. Robey testified at their trial, but White did not. He admitted to entering into a partnership with Roberts and White to file the assumed name certificate, open the bank accounts, and deposit the ERR checks. Robey also admitted that he and Brandon had placed the fake Craigslist ads in order to shut down ERR's phones and prevent Earnhardt from finding out what they were doing. Brandon was not charged in connection with his involvement in these activities.

THE AUDIO RECORDING

On the first day of trial, the jury was selected and sworn. The jurors were then allowed to leave for the day and instructed to return the next morning. That afternoon, the trial court agreed to hear arguments on the issues raised in the defendants's motions in limine, one of which involved the admissibility of the audio recording. No witnesses were presented at this hearing. The State had indicated that it intended to present as evidence the audio recording Earnhardt received from Brandon and to use Earnhardt to authenticate the audio recording. Defense counsel⁶ objected, arguing that Earnhardt could not properly authenticate the recording, and that it was illegally obtained because Earnhardt was not a party to the conversation. Defense counsel asked the court to be able to take Earnhardt on voir dire at the appropriate time during trial in order to show that the recording was inadmissible. The State responded that Earnhardt would be able to identify the three voices on the recording, and that Earnhardt would testify that the recording was given to Earnhardt by Brandon, one of the three people heard in the recording. The trial court judge listened to the recording, and then continued the pretrial hearing. Defense counsel argued that there was "nothing to indicate on the recording itself that anyone was aware that the conversation was being recorded." The trial court judge responded by asking whether there was "anything that says that Brandon was not aware[,] like someone else reportedly gave it to Brandon?" Defense counsel answered that he did not "even know if Brandon is a real person's name or if that's just a made up name." The trial court judge observed that "somebody says Brandon on the audio." Defense counsel concluded his argument by objecting to the recording's admissibility based on the reason that "we don't know where the recording was created[;]" [w]e don't know when the recording was actually created[;]" "[a]nd there's certainly nothing on the recording itself that would suggest that the parties were aware they were being recorded." The trial court ruled that, "assuming the State lays the appropriate predicate," the recording would be admitted because the issues raised by the defense go "more to weight than admissibility."

When the State called Jason Earnhardt to the stand during the trial, he testified that in late July 2012, ERR started receiving hundreds of calls and emails based on fake Craigslist ads. He had to eventually shut down ERR's phone system because of these calls. Earnhardt testified that, shortly thereafter, he received a telephone call from Brandon, and that Brandon sent him a copy of an audio recording. Earnhardt testified that the three voices on the audio recording were Robey's, White's, and Brandon's. Earnhardt testified that he had worked with Robey and White and that they had "very distinct voices." Earnhardt also said that, although he had never met Brandon face-to-face, he recognized his voice as the person who had called him, who had identified himself as Brandon, and who had sent him this recording.

After the State offered the recording into evidence, the trial court then allowed defense counsel to take the witness on voir dire (the jury was not excused at that time). Defense counsel asked Earnhardt several questions regarding Earnhardt's knowledge of the recording and whose voices were on it. No evidence was elicited from Earnhardt indicating that the conversation was recorded by someone other than Brandon. Defense counsel then objected that the audio recording was hearsay, that the State had not established a proper foundation, and that it had not been established to be a "legally-obtained recording."⁷ Without any response from the State, the trial court overruled the defense objections and admitted the recording into evidence.

Robey testified in his defense. He said that he did not know that he was being recorded, but he confirmed that the three voices on the recording were his, White's, and Brandon's. Robey also testified that, although he did not know at the time he was being recorded, he believed that Brandon had recorded the conversation. When asked who Brandon was, Robey responded:

He was supposed to provide Web site development or build a Web site for us. And that's not my specialty, Web sites and things. So, he was going to built [sic ] a Web site and Facebook and those kinds of things for our new company that we were trying to start.... I believe he was in Mexico. We were sending money orders to San Juan, Mexico to pay him.

Robey testified that he talked to Brandon "twice a day," and he believed that Brandon sent four recorded conversations to Earnhardt. On cross examination, Robey admitted that he and Brandon posted Craigslist ads, and that he "direct[ed Brandon] to post Craigslist ads to shut down Jason Earnhardt's phone system."⁸

On direct appeal, the court of appeals concluded that the audio recording was admissible, stating that, "[s]ince [A]ppellant never produced evidence of a statutory violation, the State never had the burden to prove that Brandon was the person who recorded the conversation. Therefore, the trial court was authorized in finding that the admission of the recording was not barred by Article 38.23."⁹ Because the court of appeals decided the case in the way that it did, the following issue was presented to us for...