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Click here for the full text of this decision FACTS:While Efrain Alameda was going through a divorce, he moved in with the 12-year-old victim, J.H., and her mother, Deborah, whom Alameda had known for eight or nine years. He lived in an extra bedroom in Deborah’s home for close to a year. After Alameda moved out, Deborah became suspicious that Alameda and J.H. were communicating without her knowledge, so she attached to the phone jack in her garage a recording device that would record all incoming and outgoing calls on her home telephone. Over two weeks, Deborah recorded almost 20 hours of conversation between Alameda and J.H., neither of whom knew that they were being recorded. Deborah did not suspect that Alameda and J.H. were having a sexual relationship until she heard the recording of their conversations. Deborah took the audiotape to the police, who charged Alameda with aggravated sexual assault of a child. Before his trial, Alameda filed a motion to suppress the audiotapes. He claimed that it was an offense under Texas Penal Code �16.02 to intentionally intercept a wire communication without consent, so the audiotape was inadmissable under Texas Code of Criminal Procedure Art. 38.23. The trial judge found that Deborah could vicariously consent to the recording of J.H.’s phone conversations, so the audiotape was admissible. After the conviction of Alameda, he appealed the trial court’s decision to admit the audiotape and a transcript of the recording. He also appealed the trial court’s cumulating of the two 30-year sentences imposed by the jury, arguing that the jury should decide whether to cumulate the sentences rather than the trial judge. Because there are no Texas cases on this issue, the 2nd Court of Appeals looked at other state courts, as well as at how federal courts interpreted the federal wiretap law, which is similar to the Texas law. The court of appeals considered the factors outlined in the 6th U.S. Circuit Court of Appeals’ 1998 decision in Pollock v. Pollock, which held that a parent may give vicarious consent to record a child’s telephone conversations if the parent has a good faith basis for believing that recording is in the best interest of the child. Thus, the 2nd Court held that to protect a child, a parent may record her child’s telephone conversations if the recording meets the standards in Pollock. The 2nd Court agreed with the trial court’s determination that Deborah had a good faith, objectively reasonable belief that recording the phone conversations was in the best interest of J.H. and therefore upheld the trial court’s denial of Alameda’s motion to suppress. The 2nd Court also rejected Alameda’s claim regarding the cumulating of his sentences, stating that it was not improper for the trial judge, rather than the jury, to determine whether the sentences would be cumulated. Alameda filed a petition for discretionary review, asking the Texas Supreme Court to consider whether the 2nd Court erred in grafting an exception into the relevant statute in order to conclude that the audiotape was properly admitted. HOLDING:Affirmed. The CCA held that the doctrine of vicarious consent applied to the consent exception of the wiretapping statute. Because the victim’s mother provided the consent necessary for the affirmative defense to the statute prohibiting wire tapping, the court found no violation of Texas Penal Code �16.02 in her recording of the conversations. Therefore, the CCA found that she legally obtained the audiotape and that Art. 38.23 did not render the tape inadmissible. The CCA also found that although the jury imposed the two 30-year sentences, it was within the trial judge’s discretion to decide whether to order that the sentences be served consecutively. The CCA held that the 2nd Court properly rejected Alameda’s arguments regarding the cumulating of his sentences and upheld the trial court’s cumulating order. OPINION:Meyers, J., delivered the opinion of the court, in which Keller, P.J., and Price, Johnson, Keasler, Hervey and Cochran, JJ., joined. CONCURRENCES:Keller, P.J., filed a concurring opinion, in which Keasler and Hervey, JJ., joined. “Three salient facts bear on the admissibility of the tape recording in this case: (1) one of the parties to the recorded conversations was the minor child of a parent conducting the recording, (2) the recording was conducted by the parent as part of caring for the child’s welfare, and (3) the recording occurred through a telephone jack located in the parent’s home. Because of these three facts, I would hold that the recording did not constitute”interception’ under the Texas wiretap statute.” Womack, J., joined in part and filed a concurring opinion. “For the reasons given in the Presiding Judge’s opinion . . . I agree that the tape recording was admissible.” DISSENT:Holcomb, J., dissented. “I respectfully dissent from the majority’s holding that it was within the trial judge’s discretion to order cumulation of the two 30-year sentences determined by the jury in this case.”

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