Texas Courts of Appeal

State v. Gonzalez

No. 13-25-00309-CR                   1/8/26

Issue:

Should the trial court have granted the defendant’s motion to suppress an audio recording made on a student’s cellphone of the defendant (a school resource officer) and an assistant principal discussing planting a vape pen in a student’s backpack?

Holding:

No. A law enforcement officer performing official duties does not have a reasonable expectation of privacy in a conversation made while on duty, especially considering the public interest in preventing police misconduct. The Court rejected the defendant’s argument that the recording was obtained in violation of Penal Code §16.02 because neither the officer nor the vice principal consented to being recorded by a third party. “Here, the audio recording was made by a student who was a private citizen. There is no allegation that this student was acting on behalf of law enforcement or doing anything other than acting in a private capacity.” The Court also concluded that the conversation between the officer and vice principal was not an “oral communication” as defined by the wiretap statute (§16.02). While the officer had a subjective expectation of privacy, the Court ruled that under factors discussed in Long v. State, 535 S.W.3d 511 (Tex. Crim. App. 2017), the expectation was not one that society would accept as objectively reasonable. Read opinion.

Commentary:

This State’s appeal is a good win for the State. Because of the novelty of the legal issue concerning the Texas Wiretap Statute (i.e., whether the student violated the statute when she recorded the defendant’s conversation with the assistant principal), the Court of Criminal Appeals may take a look at this opinion if the defendant petitions for discretionary review. But given that the intermediate appellate court faithfully applies the CCA’s guidance from Long, particularly the Court’s conclusion that the definition of “oral communication” incorporates the Fourth Amendment’s legitimate-expectation-of-privacy standard, this opinion should withstand the CCA’s scrutiny.  

On another note, this opinion should serve as a notice to law enforcement officers that, when they are engaged in an active investigation in a public setting, they should not anticipate having an objectively reasonable expectation of privacy in recordings of the officers’ conversations taken by a private citizen. That is certainly an important lesson in the digital age we live in.

Houston v. State

No. 03-24-00557-CR                   1/8/26

Issue:

Did the trial court abuse its discretion in denying the defendant’s request for permission to take still shots to use at trial of a recording of the victim’s forensic interview in which she described the defendant’s sexual abuse?

Holding:

No. Although the State is required to produce certain material for the defense under CCP Art. 39.14, that statute is subject to the restrictions of CCP Art. 39.15 and Family Code §264.408. Section 264.408(d-1) states that while an electronic recording of an interview with a child is subject to production under Art. 39.14, a court must “deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce an electronic recording” of a forensic interview with a child as long as the prosecutor makes the recording reasonably available to the defendant. Art. 39.15(d) states that the material is considered to be reasonably available to the defendant if the State provides ample opportunity for the defense to inspect, view, and examine the material. The Court concluded that the trial judge properly denied the defense request to take photos of the victim’s recorded interview. Read opinion.

Commentary:

This opinion reminds us that, although the State may offer still shots from the recording of a complainant’s forensic interview (e.g., to show the complainant’s appearance or demeanor during questioning), the defendant may not because Article 39.14 specifically directs the trial court to deny any request by a defendantto copy, photograph, duplicate, or otherwise reproduce the recording. Though this may seem unfair, the defendant’s rights are still safeguarded by the requirement that the State make the forensic-interview recording abundantly available to the defense pre-trial for inspection, viewing, and examination, as well as by the defense’s ability to reference the video and cross-examine the State’s witnesses concerning the video at trial.

Moffett v. State

Nos. 05-25-00005-CR                1/9/26

Issue:

Did a mother’s search of information in her underage daughter’s user profile on a laptop owned by the defendant constitute a violation of Penal Code §33.02 and require suppression of text message evidence of the defendant and daughter’s history of sexual intercourse?

Holding:

No. The mother’s live-in boyfriend owned an Apple MacBook laptop, which allowed multiple users to create separate profiles on a single device. Both the mother and daughter maintained profiles on the computer. The daughter’s profile was also connected to her phone, and her text messages would appear on the laptop when the computer was logged in with the daughter’s profile. The mother used a password hint to access the daughter’s profile on the laptop, and from there, she accessed the daughter’s text messages to reveal a conversation between the daughter and the defendant about their sexual history. The Court concluded that even though the defendant owned the laptop, the mother had common authority to search the daughter’s profile on the laptop. The Court noted that the mother did not try to access any of the content connected to the defendant’s profile or account. “Here, the trial court could have determined that the text messages were properly obtained by Mother when she vicariously consented to the search of [the daughter’s] electronic devices in an effort to exercise her responsibility to protect her daughter from harm.” Read opinion.

Concurrence (Rossini, J.):

“The evidence—including evidence that Mother was motivated to access [her daughter’s] text messages based on Mother’s concerns about [her daughter’s] safety and welfare—supports the trial court’s implied determination that Mother had, at a minimum, apparent authority to access [her daughter’s] text messages based on constitutionally grounded ‘understood expectations and social norm that parents have shared access to property of their children to ensure their safety and welfare.’” Read concurrence.

Commentary:

This should be a very helpful opinion for prosecutors who have cases where incriminating information is located on a cellphone, another electronic device, or a digital profile (e.g., social media websites or apps) belonging to a juvenile (regardless of whether the juvenile is the victim or the offender) and the State seeks to validate the search of the device or profile on the basis of the parent’s actual or apparent authority to consent. 

In the context of sexual offenses committed against children, this opinion also operates as a useful weapon to prevent defendants from successfully shielding communications or other evidence of their crimes by buying and maintaining cellphones or other devices for their child-victims with the intention of excluding access to the cellphones or devices by the children’s parents or guardians.