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Alameda v. State

The court adopts the standard set forth in Pollock, and holds that as long as a parent has a good faith, objectively reasonable basis for believing that the taping of telephone conversations is in the best interest of the parent's minor child, the parent may vicariously consent to the recording on behalf of the child.

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Click here for the full text of this decision FACTS:A woman named Deborah allowed a man named Efrain Alameda to move in with her and her 12-year-old daughter, J.H. Alameda, lived there for a year; during this time, Deborah did not see anything that indicated Alameda and J.H. were involved sexually, but she noticed that Alameda would allow J.H. to do things she wasn’t allowed by Deborah to do. When Alameda moved out, Deborah told him that while he and J.H. would be allowed to talk to one another, they would have to go through Deborah to do so. When Deborah suspected that the two were nonetheless communicating � Deborah had heard things from Alameda’s family that presumably only Deborah and J.H. knew � she placed a recording device on all of the home phones. Again, at this time, Deborah did not know if the two were engaged in a sexual relationship, but she nonetheless felt they were engaging in inappropriate behavior. Deborah recorded between 15 and 20 hours of phone conversations between Alameda and J.H. over a two-week period. Neither Alameda nor J.H. had ever asked Deborah for permission to talk to each other, nor did Deborah get permission from Alameda or J.H. to record their conversations. In various calls recorded by Deborah, the two used sexually explicit language and discussed having a baby together and moving into an apartment together. Alameda was charged with aggravated sexual assault of a child. Alameda filed a motion to suppress the audiotapes, arguing they were inadmissible under Texas Code of Criminal Procedure Article 38.23 because they violated Texas Penal Code �16.02, which criminalizes intentional interception of wire communication without consent. The trial court denied the motion. At trial, the state introduced an edited audiotape of the recorded conversations, and the state also gave the jury a transcription of the edited tapes. The trial court overruled Alameda’s objections to the entry of this evidence, and a jury found Alameda guilty of two counts of aggravated sexual assault of a child. Following the jury’s verdict, the court ordered that Alameda’s sentences for each offense be served cumulatively, for a total of 60 years. HOLDING:Affirmed. Acknowledging that the question of whether a parent can give consent to recording a conversation under �16.02 is a matter of first impression, the court notes that federal wiretap laws are similar to Texas’ wiretap law. Although the federal statute does not have an explicit exception that allows parents to vicariously consent for their children, several federal courts have held that one exists. State court opinions in Alabama and Arizona have also adopted this vicarious-consent doctrine, the court notes. “We agree with the federal and state courts that have adopted the vicarious consent doctrine. We hereby . . . hold that as long as a parent has a good faith, objectively reasonable basis for believing that the taping of telephone conversations is in the best interest of the parent’s minor child, the parent may vicariously consent to the recording on behalf of the child. . . . Our holding that a parents may vicariously consent to the recording of their child’s telephone conversations is consistent with the rights and duties our laws give parents in regard to their children.” Consequently, a recording that meets this standard is not excluded by Article 38.23. Applying this standard to this case, the court does not find fatal the fact that Deborah did not know the precise nature of Alameda’s relationship with J.H. at the time she began recording his calls with her daughter. The court says it “seems logical” that parents could install a recording device on their telephone after suspecting that their child was involved in inappropriate behavior with an adult, regardless of whether that behavior was sexual or not. Because the court holds that the audiotape was properly admitted under the vicarious-consent doctrine, the court says it need not address whether the transcription of the audiotape was properly admitted. Noting that the 60-year sentence imposed by the trial court is less than the statutory maximum for the offense of aggravated assault of a child under 14, which is 99 years, the court holds that Alameda’s sentence did not run afoul of Apprendi v. New Jersey, 530 U.S. 466 (2000). OPINION:Livingston, J.; Cayce, C.J., Livingston and McCoy, JJ.

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