Zachary Jabe Riley v. the State of Texas

Summary

The Texas Thirteenth Court of Appeals reviews Zachary Jabe Riley’s convictions for two counts of unlawful interception of a wire, oral, or electronic communication based on his accessing his former wife’s voicemail. Riley challenged the prosecutor’s appointment, the constitutionality and vagueness of Texas Penal Code section 16.02, the sufficiency of the evidence, and several trial and new-trial rulings. The court affirmed the convictions as modified, rejecting the jurisdictional and constitutional arguments presented in the excerpt.

Holdings

1. The appointment did not violate the separation-of-powers doctrine and did not deprive the trial court of subject-matter jurisdiction because the elected district attorney sought recusal and consented to the appointment under former Texas Code of Criminal Procedure article 2.07; the appointed attorney pro tem acted with the elected district attorney's authority.
2. Section 16.02 is not facially void for vagueness because, read together with the definitions in Texas Code of Criminal Procedure article 18A.001, it gives persons of ordinary intelligence a reasonable opportunity to know what conduct is prohibited and does not authorize arbitrary enforcement.
3. Riley failed to preserve his as-applied constitutional challenge because he did not present that challenge to the trial court.
4. The record did not demonstrate that the judge who presided over the second trial violated article 38.05 by commenting on the evidence or advising the prosecution to correct an evidentiary error.
5. The evidence was legally sufficient to support both convictions under Texas Penal Code section 16.02(b)(1).
6. The trial court did not abuse its discretion or deny due process by quashing the subpoena duces tecum seeking the county judge's cell-phone records because Riley failed to make a plausible showing that the records contained material and favorable evidence.
7. The judgments were properly modified to state that the two sentences run concurrently because the trial court was silent when pronouncing sentence about cumulation.

Questions Presented

1. Whether the trial court lacked subject-matter jurisdiction because the appointment of Texas Attorney General personnel as district attorney pro tem violated the Texas Constitution's separation-of-powers doctrine.
2. Whether Texas Penal Code section 16.02 was facially or as applied unconstitutionally vague.
3. Whether the trial court violated Texas Code of Criminal Procedure article 38.05 by commenting on the evidence or conveying an opinion of the case to the jury.
4. Whether the evidence was legally sufficient to support Riley's convictions for unlawful interception.
5. Whether the trial court improperly quashed a subpoena duces tecum and refused to permit testimony in support of Riley's motion for new trial.
6. Whether Riley was denied due process at the motion-for-new-trial hearing.
7. Whether the judgments contained an error concerning whether the sentences would run concurrently or consecutively.

Disposition

affirmed