McAfee, Kenneth Cooper

Opinion

PD-0667-15

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 7/13/2015 3:22:43 PM Accepted 7/15/2015 3:36:03 PM ABEL ACOSTA

PD 0667-15 CLERK

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

_______________________________________________

KENNETH COOPER MCAFEE,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

_______________________________________________

On Petition for Discretionary Review from the First Court of Appeals in No. 01-13-00777-CR affirming the conviction in cause number 1262341, From the 339th District Court of Harris County, Texas

_______________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

_______________________________________________

ORAL ARGUMENT NOT REQUESTED ALEXANDER BUNIN Chief Public Defender Harris County, Texas

JANI MASELLI WOOD Assistant Public Defender Harris County, Texas TBN. 00791195 1201 Franklin Street, 13th Floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 368-9278

July 15, 2015 Counsel for Appellant July 13, 2015

IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Mr. Kenneth Cooper McAfee TDCJ# 01879352 Polunsky Unit 3872 FM 350 South Livingston, TX 77351

TRIAL PROSECUTOR: Ms. Donna Logan APPELLATE PROSECUTOR: Ms. Jessica Caird Assistant District Attorney Harris County, Texas 1201 Franklin, 6th Floor Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL: Mr. Gerald Fry Ms. Emily Shelton 801 Congress #350 Houston, Texas 77002

PRESIDING JUDGE: Hon. Maria T. Jackson, Presiding Judge 339th District Court Harris County, Texas 1201 Franklin, 14th floor Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL: Mrs. Jani Maselli Wood Assistant Public Defender Harris County, Texas 1201 Franklin, 13th Floor Houston, Texas 77002

3

TABLE OF CONTENTS

PAGE

Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The attorney/client privilege is viewed from the perspective of the client. The State never provided any evidence Mr. McAfee had waived the privilege. Did the Court of Appeals err in determining that the trial court did not abuse its discretion is admitting evidence protected by attorney/client privilege?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1. Neither the State nor the Court of Appeals could ever point to evidence Mr. McAfee had waived his attorney/client privileged discussions with Mr. Storer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. The privilege belonged to Mr. McAfee to waive - not his attorney ........................................................ 9

4

3. The Court of Appeals belief that because Mr. McAfee and his attorney were friends that no privilege existed is inconsequential to whether the privilege was actually waived.. . . . . . . . . . . . . . . . . . 11

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

5

INDEX OF AUTHORITIES

PAGE

Cases:

Carmona v. State, 941 S.W.2d 949 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11

Cruz v. State, 586 S.W.2d 861 (Tex. Crim. App. [Panel Op.] 1979).. . . . . . . . . . . . . . 11, 12

McAfee v. State, 01-13-00777-CR, 2015 WL 2235122 (Tex. App.—Houston [1st Dist.] May 12, 2015, no. pet. h.) . . . . . . . . passim

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Sanford v. State, 21 S.W.3d 337 (Tex. App. - El Paso 2000, no pet.). . . . . . . . . . . . . . . . . . . 10

State v. Martinez, 116 S.W.3d 385 (Tex. App. - El Paso 2003, no pet.). . . . . . . . . . . . . . . . . . 10

Statutes and Rules:

TEX. CODE CRIM. PROC. 19.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TEX. R. EVID. 503 (b)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. R. EVID. 503(B)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TEX. R. EVID. 503 (b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

6

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.

STATEMENT OF THE CASE

This is an appeal from a conviction for murder. (I. C.R. at 687). TEX. CODE

CRIM. PROC. 19.02. Mr. McAfee pleaded not guilty by reason of insanity and was

found guilty by a jury. (I. R.R. at 415, 687). The judge assessed punishment at

confinement for 99 years in the Texas Department of Criminal Justice - Institutional

Division and a $10,000 fine. (C.R. at 687).

STATEMENT OF THE PROCEDURAL HISTORY

In a published opinion, the First Court of Appeals affirmed Mr. MCafee’s

conviction. McAfee v. State, 01-13-00777-CR, 2015 WL 2235122 (Tex.

App.—Houston [1st Dist.] May 12, 2015, no. pet. h.). No motion for rehearing was

filed. After an extension of time, this petition is timely if filed on or before July 13,

2015.

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GROUND FOR REVIEW

The attorney/client privilege is viewed from the perspective of the client. The State never provided any evidence Mr. McAfee had waived the privilege. Did the Court of Appeals err in determining that the trial court did not abuse its discretion is admitting evidence protected by attorney/client privilege?

REASON FOR REVIEW

The First Court of Appeals has decided an important question of state or federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United States. TEX. R. APP. P. 66.3(c).

STATEMENT OF FACTS RELATIVE TO GROUND RAISED

Mr. McAfee was convicted of killing his wife; the Court of Appeals explained

his background succinctly:

In 2006, appellant began to suffer from various health problems. These issues led to the breakup of appellant's marriage to Janet, and the two were in the process of getting divorced. The record contains conflicting evidence regarding the nature of appellant's physical and mental health issues and includes testimony that appellant suffered from drug and alcohol abuse, depression, anxiety and panic attacks, degenerative neurological disease, and dementia. It is undisputed that at the time of the offense appellant was living in an assisted living facility.

McAfee, 2015 WL 2235122, at *1. Mr. McAfee shot his wife and due to a panic alarm,

there was a SWAT stand off. Id., at *1-3.

8

Motion to Suppress

The defense moved to suppress the statements of Charles Storer, Mr. McAfee’s

attorney. (6 R.R. at 8). A hearing was held outside the presence of the jury. (6 R.R.

at 8). Mr. Storer stated Mr. McAfee called him on the day of the offense and stated

he had done something horrible. (6 R.R. at 9). Mr. Storer testified it was a private

conversation and that Mr. McAfee was talking to him in his capacity as an attorney.

(6 R.R. at 9). Mr. Storer went to the scene of the offense and introduced himself to

the police as Mr. McAfee’s attorney. (6 R.R. at 9). Defense Exhibit 1 was introduced,

a police report stating that Mr. Storer arrived on the scene and introduced himself as

the attorney of Mr. McAfee. (21 R.R. at D-1; 6 R.R. at 10).

The State focused on the fact that Mr. McAfee and Mr. Storer had been friends

for many years. (6 R.R. at 7-14). Mr. McAfee had lived with Mr. Storer and his wife

for a short time. (6 R.R. at 18-21). In the beginning of May 2012, Mr. Storer had

started representing Mr. McAfee in his divorce. (6 R.R. at 16). The State asked

whether there had been any formal discussions about representing him in criminal

matters. (6 R.R. at 17). Further, the State offered the 9-1-1 call where Mr. Storer

called the police telling them there had been a shooting, and that his friend had killed

his wife. (6 R.R. at 21). Mr. Storer also gave information to the police about what Mr.

McAfee had told him. (6 R.R. at 23). In that statement, Mr. Storer agreed with the

9

officer that he was not representing Mr. McAfee on a criminal case. (6 R.R. at 27).

However, Mr. Storer clarified that he was trying to find another attorney to handle the

criminal case and he was representing him. (6 R.R. at 29-30). Further, Mr. McAfee

never waived the attorney/client privilege nor gave Mr. Storer permission to speak

with anyone about the case. (6 R.R. at 30).

After argument of counsel, the court determined there was no attorney/client

privilege. (6 R.R. at 39).

Argument

The attorney/client privilege is viewed from the perspective of the client. The State never provided any evidence Mr. McAfee had waived the privilege. Did the Court of Appeals err in determining that the trial court did not abuse its discretion is admitting evidence protected by attorney/client privilege?

1. Neither the State nor the Court of Appeals could ever point to evidence Mr. McAfee had waived his attorney/client privileged discussions with Mr. Storer.

The Court of Appeals held “[t]he record contains conflicting evidence

regarding the nature of appellant’s relationship with Storer at the time the phone calls

occurred.” McAfee, 2015 WL 2235122 at *16. Then the Court of Appeals stated that

“appellant told police that he wanted to see his attorney and that when Storer arrived

on the scene, he introduced himself as appellant’s attorney.” Id.

10

2. The privilege belonged to Mr. McAfee to waive - not his attorney.

A client has a privilege to refuse to disclose and to prevent any other person

from disclosing confidential communications made for the purpose of facilitating the

rendition of professional legal services to the client; between the client or a

representative of the client, and the client's lawyer or a representative of the lawyer.

TEX. R. EVID. 503 (b)(1)(A). In criminal cases, a client has a privilege to prevent the

lawyer or lawyer's representative from disclosing any other fact which came to the

knowledge of the lawyer or the lawyer's representative by reason of the attorney-client

relationship. TEX. R. EVID. 503 (b)(2).

The power to waive the attorney-client privilege belongs to the client, or his

attorney or agent both acting with the client's authority. Carmona v. State, 941 S.W.2d

949, 953 (Tex. Crim. App. 1997). This Court has explained:

the mere fact privileged materials already have been disclosed does not establish a “presumptive” or “automatic waiver.” See Jordan v. Court of Appeals for Fourth Supreme Judicial District, 701 S.W.2d 644, 649–51 (Tex.1985) (orig. proceeding) (Gonzalez, J., concurring and dissenting) (mere disclosure of privileged materials does not establish an “automatic waiver”); TEX.R.CRIM.EVID. 511 (holder of the privilege waives the privilege if he discloses or consents to disclosure of any significant part of privileged materials).

Carmona v. State, 941 S.W.2d 949, 953-54 (Tex. Crim. App. 1997).

A client has a privilege to refuse to disclose and to prevent any other person

from disclosing confidential communications made for the purpose of facilitating the

11

rendition of professional legal services to the client. TEX. R. EVID. 503(B)(1).

503(B)(2) further provides that:

in criminal cases, a client has a privilege to prevent the lawyer or lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship.

The “[i]nvocation of the privilege is dependent upon the existence of an

attorney-client relationship, which has been defined as a contractual relationship

whereby an attorney agrees to render professional services for a client.” State v.

Martinez, 116 S.W.3d 385, 392 (Tex. App. - El Paso 2003, no pet.). The client bears

the burden of establishing the existence of the privilege. Sanford v. State, 21 S.W.3d

337, 342 (Tex. App. - El Paso 2000, no pet.), abrogated on other grounds, Motilla v.

State, 78 S.W.3d 352 (Tex. Crim. App. 2002). Mr. Storer had been representing Mr.

McAfee in his divorce. (6 R.R. at 15-16). There was an attorney/client relationship.

The “attorney-client privilege is designed for the benefit of the client by

guaranteeing to the client the confidentiality necessary to promote forthright

communications between the lawyer and the client.” Carmona, 941 S.W.2d at 953.

Additionally "[t]he Rules of Criminal Evidence make it clear the attorney-client

privilege is held by the client, not the attorney... [a]nd only the client, or an attorney

acting with the client's consent, may waive the attorney-client privilege." Carmona, 941

S.W.2d at 956. (Baird concurring) (citations omitted). Texas law does not authorize

12

attorneys to unilaterally waive the attorney-client privilege for their clients; only the

client may relinquish the privilege. Id. citing Cruz v. State, 586 S.W.2d 861 (Tex. Crim.

App. [Panel Op.] 1979).

3. The Court of Appeals belief that because Mr. McAfee and his attorney were friends that no privilege existed is inconsequential to whether the privilege was actually waived.

The Court of Appeals discussion of the friendship of the two men is

insignificant for the analysis:

However, it was undisputed that appellant and Storer were long-time friends, and Storer testified that he was probably appellant's closest friend. Appellant did not call Storer's legal office; rather, he called Storer's cell phone. Storer also acknowledged that he did not typically practice criminal defense law.

McAfee, 2015 WL 2235122, at *16.

Mr. McAfee referred to Charles Storer as “my attorney” while talking to the

S.W.A.T negotiator and received legal advice from Charles Storer on May 8, 2010.

Charles Storer testified that he was giving legal advice and viewed Mr. McAfee as his

friend as well. An objective analysis of these facts demonstrate Mr. McAfee thought

he was conducting privileged communications to obtain legal advice from an attorney.

However it is not Mr. McAfee's burden to disprove waiver, it is the State's

burden to prove waiver. Carmona, 941 S.W.2d at 953(party seeking to benefit from a

finding of waiver has the burden to provide evidence that supports a finding of

13

waiver). The State failed to do so. Waiver is not to be “lightly inferred.” Cruz, 586

S.W.2d at 865.

Mr. McAfee was harmed because the statements by Storer were used by Dr.

Moeller to somehow prove that Mr. McAfee was sane at the time of the offense. The

jury could have latched onto this privileged communications and used to justify their

decision to not find for the insanity defense. The law is clear - there was not one

shred of evidence presented that Mr. McAfee ever waived the privilege with Mr.

Storer. A review of the SWAT recording (SX 96) shows Mr. McAfee repeatedly asked

for his attorney. Mr. Storer introduced himself as Mr. McAfee’s attorney.

The Court of Appeals erred in determining that the trial court did not err in

failing to grant the motion to suppress. Review should be granted.

14

PRAYER FOR RELIEF

For the reasons states above, Mr. McAfee prays that this Court grant his

petition for discretionary review.

Respectfully submitted, ALEXANDER BUNIN Chief Public Defender Harris County Texas

Jani Maselli Wood

_______________________________

JANI J. MASELLI WOOD Assistant Public Defender Harris County, Texas Jani.Maselli@pdo.hctx.net TBN. 00791195 1201 Franklin Street, 13th Floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 368-9278

Attorney for Appellant Kenneth Cooper McAfee

15

CERTIFICATE OF SERVICE

Pursuant to Tex. R. App. Proc. 9.5, this certifies that on July 13, 2015, a copy of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and the Harris County District Attorney’s Office through texfile.com at the following address:

Jessica Caird Assistant District Attorney 1201 Franklin Street, 6th Floor Houston, TX 77002 caird_jessica@dao.hctx.net

Lisa McMinn Lisa.McMinn@SPA.texas.gov

Jani Maselli Wood

_________________________________

JANI J. MASELLI WOOD

16

CERTIFICATE OF COMPLIANCE

Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D).

1. Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this

petition contains 1768 words printed in a proportionally spaced typeface.

2. This petition is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text and Garamond 14 point font in footnotes produced

by Corel WordPerfect software.

3. Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.

Jani Maselli Wood

____________________________

JANI J. MASELLI WOOD

Appendix A

Opinion London v. State

McAfee v. State, --- S.W.3d ---- (2015)

Holdings: The Court of Appeals, Evelyn V. Keyes, J., held

2015 WL 2235122 that:

Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED [1] evidence was factually sufficiency to support finding that

FOR PUBLICATION IN THE PERMANENT LAW defendant was aware his conduct was wrong when he

REPORTS. UNTIL RELEASED, IT IS SUBJECT TO murdered his wife;

REVISION OR WITHDRAWAL.

Court of Appeals of Texas, [2] the trial court's error, if any, in permitting the prosecution Houston (1st Dist. to define the word “wrong” during voir dire by using a

commonly accepted definition of the term that was broader

than the definition set out by caselaw did not constitute Kenneth Cooper McAfee, Appellant reversible error; and

v.

The State of Texas, Appellee

NO. 01–13–00777–CR | Opinion issued May 12, 2015 [3] the attorney-client privilege did not apply to bar evidence

of the telephone calls defendant made to his friend, who was

also an attorney, on the night of the murder.

Affirmed.

Synopsis

Background: Defendant was convicted in the 339th District

Court, Harris County, of murder and he was sentenced to 99 West Headnotes (43)

years of imprisonment. Defendant appealed.

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

McAfee v. State, --- S.W.3d ---- (2015)

[1] Criminal Law [4] Criminal Law Defenses in general Verdict unsupported by evidence or contrary Criminal Law to evidence Particular issues or elements Criminal Law Rendition, form, and entry of judgment The Texas Court of Criminal Appeals has adopted the civil standard of factual-sufficiency review for The Court of Appeals may sustain a defendant's challenges to the rejection of an affirmative factual-sufficiency claim only if, after setting out defense because the burden of proof is that of the relevant evidence and explaining precisely preponderance of the evidence, the same burden how the contrary evidence greatly outweighs the applied in civil proceedings. evidence supporting the verdict, the Court clearly states why the verdict is so much against the great weight of the evidence as to be manifestly unjust, Cases that cite this headnote conscience-shocking, or clearly biased.

Cases that cite this headnote [2] Criminal Law Particular issues or elements

In making a factual-sufficiency claim, the [5] Criminal Law defendant is asserting that, considering the entire Particular issues or elements body of evidence, the jury's adverse finding on his Criminal Law affirmative defense was so against the great Ordering new trial weight and preponderance of the evidence as to be manifestly unjust. If the Court of Appeals determines that the evidence supporting an affirmative defense so greatly outweighs the State's contrary evidence Cases that cite this headnote that the verdict is manifestly unjust, then the Court of Appeals may reverse the trial court's judgment and remand for a new trial.

[3] Criminal Law Weight of Evidence in General Cases that cite this headnote Criminal Law Province of jury or trial court

On a challenge to the sufficiency of the evidence [6] Criminal Law the Court of Appeals may not usurp the function Insanity of the jury by substituting its judgment in place of the jury's assessment of the weight and credibility To establish the affirmative defense of insanity, of the witnesses' testimony. the defendant must prove that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his Cases that cite this headnote conduct was wrong. Tex. Penal Code Ann. § 8.01.

Cases that cite this headnote

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

McAfee v. State, --- S.W.3d ---- (2015)

[7] Criminal Law Proof of a mental disease or defect alone is not Innocence sufficient to establish an affirmative defense of Criminal Law insanity. Tex. Penal Code Ann. § 8.01.

Degree of proof

The law presumes that the accused is sane, and Cases that cite this headnote the accused bears the burden of proving by a preponderance of the evidence that he is insane. Tex. Penal Code Ann. § 8.01.

[11] Criminal Law

Cases that cite this headnote Experts Criminal Law

Insanity or Other Incapacity

[8] Criminal Law Although jurors may not arbitrarily disregard Insanity expert testimony as to insanity, neither may they give conclusive effect to such testimony.

The insanity defense focuses on whether the accused understood the nature of his action and whether he knew he should not do it. Tex. Penal Cases that cite this headnote Code Ann. § 8.01.

Cases that cite this headnote [12] Criminal Law Defense of insanity

Whether the defense of insanity was proved is a [9] Criminal Law decision that lies within the province of the jury, Insanity both as to the credibility of witnesses and the weight of the evidence and as to the limits of the For the purpose of an insanity defense, if the defense. accused knows that his conduct is illegal by societal standards, then he understands that his conduct is wrong, even if, due to a mental disease Cases that cite this headnote or defect, he thinks his conduct is morally justified. Tex. Penal Code Ann. § 8.01.

[13] Homicide

Cases that cite this headnote Insanity

[10] Criminal Law Insanity

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

21

McAfee v. State, --- S.W.3d ---- (2015)

Evidence was factually sufficiency to support The Court of Appeals will not disturb the trial finding that defendant was aware his conduct was court's ruling on the propriety of a particular voir wrong when he murdered his wife, in support of dire question absent an abuse of discretion. the jury's rejection of defendant's insanity defense, during prosecution for murder, even though several experts believed defendant's disorders Cases that cite this headnote were attributable to a degenerative neurological disorder, the State's expert witness opined that defendant was not suffering from a degenerative neurological disorder and that he was sane at the [16] Jury time he committed the offense, defendant had a Examination of Juror history of drug and alcohol abuse that could have contributed to his mental disorders, several A voir dire question is proper if it seeks to witnesses testified that defendant was placed in an discover a juror's views on an issue applicable to assisted living facility due to his drug issues and the case. not due to his dementia, defendant's treating psychiatrist, testified that he treated defendant up until the month preceding the offense and he had Cases that cite this headnote never had any reason to believe that appellant suffer ed fr o m p sycho sis, delusions, hallucinations, dementia, or any degenerative neurological disorder or other physiological [17] Jury reason for his mental disorders, and there was no Examination of Juror medical evidence indicating that defendant suffered from anything other than severe major Voir dire questions that misstate the law are depressive disorder and anxiety until after he improper. committed the murder, shot himself in the face, and was incarcerated. Tex. Penal Code Ann. § 8.01. Cases that cite this headnote

Cases that cite this headnote [18] Criminal Law

Arguments and Statements by Counsel

[14] Jury Generally, a prosecutor's statements during voir Discretion of court dire will not constitute error unless they are contrary to the trial court's charge.

The trial court has broad discretion over the process of selecting a jury.

Cases that cite this headnote

Cases that cite this headnote

[19] Criminal Law

Custody and conduct of jury [15] Criminal Law Selection and impaneling

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

McAfee v. State, --- S.W.3d ---- (2015)

When a term is undefined in the charge, the Court [23] Criminal Law of Appeals presumes that the jury attaches a Reception of evidence common understanding to the meaning of the Criminal Law term. Evidence wrongfully obtained

When a trial court makes explicit fact findings Cases that cite this headnote when ruling on a motion to suppress, the Court of Appeals must determine whether the evidence viewed in the light most favorable to the trial court's ruling supports the fact findings.

[20] Criminal Law Impaneling jury in general Cases that cite this headnote A trial court's erroneous ruling on issues relating to questioning a venire panel about its understanding of the burden of proof is non-constitutional error subject to a harm [24] Criminal Law analysis. Tex. R. App. P. 44.2(b). Review De Novo Criminal Law

Evidence wrongfully obtained Cases that cite this headnote The Court of Appeals reviews motions to suppress pursuant to a bifurcated standard under which the trial court's determinations of historical [21] Criminal Law facts and mixed questions of law and fact that rely Impaneling jury in general on credibility are granted almost total deference when supported by the record; however, for The trial court's error, if any, in permitting the questions of law or mixed questions of law and prosecution to define the word “wrong” during fact that do not depend on the evaluation of voir dire by using a commonly accepted definition credibility and demeanor, the Court reviews the of the term that was broader than the definition set trial court's ruling de novo. out by caselaw did not constitute reversible error, during murder prosecution; the error did not have a substantial or injurious effect or influence the Cases that cite this headnote verdict against defendant.

Cases that cite this headnote [25] Criminal Law Trial judge as sole arbiter of credibility

At a suppression hearing, the trial court is the sole [22] Criminal Law trier of fact and judge of the credibility of the Reception of evidence witnesses and the weight to be given their testimony.

In reviewing a trial court's ruling on a motion to suppress, appellate courts must view the evidence in the light most favorable to the trial court's Cases that cite this headnote ruling.

Cases that cite this headnote [26] Criminal Law Credibility of witnesses in general

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

McAfee v. State, --- S.W.3d ---- (2015)

The trial court may choose to believe or The client can waive the attorney-client privilege disbelieve any part or all of a witness's testimony. by voluntarily disclosing or consenting to the disclosure of a significant part of the privileged matter. Tex. R. Evid. 503(a), 511(1).

Cases that cite this headnote

Cases that cite this headnote

[27] Criminal Law Illegally obtained evidence Criminal Law [31] Privileged Communications and Confidentiality Evidence wrongfully obtained Presumptions and burden of proof

The Court of Appeals sustains the trial court's A party asserting a privilege has the burden of ruling on a motion to suppress if it is reasonably showing that the privilege applies. supported by the record and correct on any theory of law applicable to the case.

Cases that cite this headnote

Cases that cite this headnote

[32] Privileged Communications and Confidentiality Presumptions and burden of proof [28] Privileged Communications and Confidentiality Elements in general; definition Once the privilege has been established, the party seeking to establish waiver of the privilege has the The scope of the attorney-client privilege as set burden of going forward with evidence that out in the rules of evidence is limited to supports a finding of waiver. communications made by a client seeking legal advice from a lawyer in her capacity as such and the communication must relate to the purpose for Cases that cite this headnote which the advice is sought. Tex. R. Evid. 503(b)(1).

[33] Privileged Communications and Confidentiality Cases that cite this headnote Waiver of privilege

Waiver of a privilege may be inferred from the totality of the circumstances and reasonable [29] Privileged Communications and Confidentiality inferences.

Definition of ‘privilege‘

In general, privileges are exclusionary rules of Cases that cite this headnote evidence that may be used to suppress relevant evidence.

[34] Privileged Communications and Confidentiality Cases that cite this headnote Waiver of privilege

[30] Privileged Communications and Confidentiality Waiver of privilege

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McAfee v. State, --- S.W.3d ---- (2015)

The disclosure of the privileged material by [38] Privileged Communications and Confidentiality defense counsel is relevant in determining waiver Relation of Attorney and Client of the attorney-client privilege. Tex. R. Evid. 503. Privileged Communications and Confidentiality Particular cases

Cases that cite this headnote The attorney-client privilege did not apply to bar evidence of the telephone calls defendant made to his friend, who was also an attorney, on the night of the murder, during murder prosecution;

[35] Privileged Communications and Confidentiality defendant and attorney were long-time friends, Presumptions and burden of proof defendant called attorney's cellular telephone, not his legal office, attorney generally did not practice After the State has gone forward with evidence criminal law, attorney had never previously supporting waiver of the attorney-client privilege, represented defendant in a criminal matter, and the party claiming the privilege may find it wise the communications were not made to facilitate to present evidence of no waiver. Tex. R. Evid. legal services. Tex.R. Evid. 503(a)(5), (b)(1). 503.

Cases that cite this headnote Cases that cite this headnote

[39] Constitutional Law [36] Criminal Law Presumptions and Construction as to Privilege Constitutionality Constitutional Law

The Court of Appeals reviews the trial court's Intent of and Considerations Influencing decision on the applicability of a privilege for an Legislature abuse of discretion.

In addressing a constitutional challenge, the Court of Appeals must begin with the presumption that Cases that cite this headnote the statute is valid and that the Legislature did not act arbitrarily or unreasonably in enacting it.

[37] Criminal Law Cases that cite this headnote Witnesses

Criminal Law Reception of evidence

[40] Constitutional Law The Court of Appeals can reverse a decision Burden of Proof concerning waiver of the attorney-client privilege only if the trial court applied an erroneous legal The party challenging the statute has the burden standard, or when no reasonable view of the to establish its unconstitutionality. record could support the trial court's conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion. Tex. Cases that cite this headnote R. Evid. 503.

Cases that cite this headnote [41] Constitutional Law Facial invalidity

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To prevail on a facial challenge, a party must Panel consists of Justices Keyes, Higley, and Brown. establish that the statute always operates unconstitutionally in all possible circumstances.

Cases that cite this headnote OPINION

[42] Constitutional Law Encroachment in general Evelyn V. Keyes, Justice

The Texas Constitution's separation of powers *1 A jury convicted appellant, Kenneth Cooper McAfee, of provision ensures that power granted one branch the murder of his wife, Janet McAfee, and the trial court may be exercised by only that branch, to the assessed his punishment at confinement for ninety-nine years exclusion of others, and therefore requires that and a $10,000 fine.1 In four issues, appellant argues that (1) any attempt by one department of government to the jury erred in rejecting his insanity defense because a interfere with the powers of another is null and preponderance of the evidence supported it; (2) the trial court void. Tex. Const. art. 2, § 1. erred in overruling his objection to the State's definition of “wrong” in the context of discussing the insanity defense during voir dire; (3) the trial court erred in denying his motion Cases that cite this headnote to suppress the testimony of Charles Storer, an attorney and friend whom he called in the course of committing the offense; and (4) the consolidated court costs were unconstitutional because they included a crime stoppers fee that does not fund any costs of the court's function.

[43] Constitutional Law Sentencing and punishment Constitutional Law Criminal Law We affirm.

Costs Constitutional and statutory provisions

The statutory scheme for collection of the crime Background stoppers fee did not improperly delegate a power to the judicial branch that was more appropriately Appellant and the complainant, Janet McAfee, married in attached to the executive branch, as argued by 1991. In 2006, appellant began to suffer from various health defendant; funds collected for the crime stoppers problems. These issues led to the breakup of appellant's assistance fund were sufficiently related to the marriage to Janet, and the two were in the process of getting collection of evidence in criminal cases to divorced. The record contains conflicting evidence regarding constitute legitimate criminal justice activities. the nature of appellant's physical and mental health issues and Tex. Loc. Gov't Code Ann. §§ 133.102(a)(1), includes testimony that appellant suffered from drug and (e)(2), 414.001(2); Tex. Crim. Proc. Code Ann. alcohol abuse, depression, anxiety and panic attacks, art. 102.013. degenerative neurological disease, and dementia. It is undisputed that at the time of the offense appellant was living in an assisted living facility.

1 Cases that cite this headnote

A. The Commission of the Offense On May 8, 2010, Janet picked appellant up to attend the Art Car Parade, and the two spent the day together viewing the parade and later returning to the home they had shared and where Janet still lived. That evening, a panic alarm in the On Appeal from the 339th District Court, Harris County, home was activated, and Houston Police Officer R. Texas, Trial Court Case No. 1262341 Nellippallil was dispatched to the home to investigate. He was met by appellant, who told Officer Nellippallil that everything Attorneys and Law Firms was fine and it was a false alarm. Officer Nellippallil testified that appellant, whom he believed to be the homeowner, Jessica A. Caird, Devon Anderson and Alan Curry, for The appeared normal and understood his questions. Officer State of Texas. Nellippallil left the home believing nothing was wrong.

Jani Maselli Wood, for Kenneth Cooper McAfee.

McAfee v. State, --- S.W.3d ---- (2015)

Janet's alarm company also contacted the police regarding the saw that she was lying on her side, unmoving, and the officer alarm, and a second officer, Officer B. Scott, was dispatched observed blood stains. Appellant continued to insist that Janet to the home later that evening. As he approached the house, he was fine and that she was just sleeping, and he refused to met one of Janet's neighbors who expressed her concern for allow the police to enter. At one point, appellant also told the Janet, stating that she had also received an alarm call officers that he wanted to kill himself, but Officer Scott regarding the house. Officer Scott asked the neighbor to call testified that he seemed calm, even while making his suicide Janet, and he rang the door bell. Appellant eventually threat. answered the door and again told Officer Scott that everything was fine and it was a false alarm. As Officer Scott returned to his vehicle, Janet's neighbor stopped him and explained that Eventually, the police dispatched a SWAT team and a Crisis she knew Janet and appellant were having marital issues and Intervention Response Team (“CIRT”) to the home. Michael she was concerned for Janet's safety. Hawkins, a clinician with the CIRT, attempted to communicate with appellant. Hawkins testified that his training and experience as a licensed professional counselor Officer Scott then returned to the door and asked to speak with and his crisis intervention training equipped him to recognize Janet directly. Appellant showed his driver's license to the people suffering from psychosis, hallucinations, and other officer and claimed that Janet was sleeping and could not acute mental illness. He stated that when he arrived on the come to the door. When Officer Scott insisted on seeing Janet, scene, he spoke with appellant over the phone and attempted appellant refused to wake her and refused to allow the officer to get appellant to exit the house. Hawkins testified that while inside to check on her. Appellant asked if Officer Scott had a he was speaking with appellant, he noticed that appellant search warrant requiring him to give the officer access to the seemed sad and depressed. In fact, appellant told Hawkins that home. As Officer Scott was having this discussion with he was depressed, and Hawkins understood from his appellant, he saw Janet come into view from around the discussion with appellant that the problems had something to comer, and he saw that she was staggering. Officer Scott asked do with money. However, Hawkins did not observe any speech her if she was okay, and she told him that she was not and fell or behavior that indicated that appellant was suffering from to the floor. At that point, appellant immediately shut the door psychosis or hallucinations. Rather, appellant was in Officer Scott's face and locked it. Officer Scott did not see communicating clearly and his thoughts and words seemed to any blood or obvious wounds on Janet at that time, but he be “in order” and made sense in context. informed dispatch of the situation and requested that Officer Nellippallil return to provide backup so that they could investigate further. Hawkins also testified that, while he was on the phone with appellant, appellant asked to speak with his attorney. Appellant initially indicated that he would come out of the *2 While Officer Scott was discussing the situation with home after his attorney arrived, and appellant later stated that dispatch, he observed appellant leave the house with his dog. he would hurt himself if the police entered the home. Officer Scott approached appellant, questioning him about Appellant's attorney, Charles Storer, arrived on the scene at Janet's condition and asking why he shut the door so abmptly. some point and spoke to appellant on the phone. Appellant told him that Janet had been drinking and was feeling sick as a result. Officer Scott believed that appellant initially had planned to leave the home, because he was While Hawkins was talking with appellant, the SWAT team carrying keys to the vehicle and tried to start the engine, but arrived and Officer M. Scales used a magnification scope to after Officer Scott approached him, appellant put the dog in look into the bedroom where Janet was lying on the bed. the car and then went back inside the house. Officer Scales did not observe any signs of life from Janet, but he saw appellant come into the room and lie down next to his wife. He saw appellant raise one of Janet's legs and let it fall Officer Scott testified that appellant seemed normal and spoke back onto the bed, and Officer Scales stated that appellant to him calmly, trying to convince him that everything was appeared resigned at that point. As the other members of the okay and that he could leave. However, Officer Scott remained SWAT team entered the home, Officer Scales saw appellant concerned about Janet's safety and waited outside the house shoot himself in the head. Appellant was taken to a local for backup to arrive. When Officer Nellippallil arrived, they hospital for treatment of his gunshot wound, but Janet was once again rang the door bell. Appellant did not answer the declared dead at the scene. An autopsy later revealed that she door. However, one of the officers spoke to appellant by had been shot four times, and physical evidence in the house phone while the other walked around the outside of the house indicated that she had been shot somewhere outside the and was able to see of Janet through a bedroom window. He bedroom, had at one point been walking around after being

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shot, and had been dragged through the kitchen and into the following his medical leave, but he was unable to pass the hallway. Detectives also discovered bloody towels in a clothes required tests and never returned to active employment. Steets hamper concealed by the shower curtain. was not aware of any problems between appellant and Janet, and he was not aware that appellant had ever demonstrated any anger or violence issues prior to 2006.

*3 Houston Police Officer T. Moore was assigned to guard appellant while he was at the hospital, and he testified that he heard a nurse ask appellant why he was in the hospital. Janet's mother, Rosemary Foltyn, testified regarding Appellant told the nurse he was there because he shot his wife. appellant's relationship with Janet. She stated that they married An HPD homicide investigator likewise visited the hospital to in 1991. In 2006, appellant had a breakdown involving a panic get appellant's statement. Appellant asked him how much time attack at work and subsequent treatment for depression, which he could get for murder and then decided to wait to give a Foltyn was aware had caused Janet and appellant's marriage to statement until his attorney was present. As part of the suffer. Foltyn also testified that appellant had a history of investigation, the officer requested to view appellant's mail alcohol and drug abuse. She recalled an incident in 2009 when while he was confined in the Harris County Jail. A few days she visited Janet and they returned from an outing to find after appellant arrived at the jail, he sent a letter to his ex-wife, appellant passed out and naked in the hallway, incapacitated Brenda McAfee, in which he wrote, “I'd say that insanity will due to alcohol and drug use. Foltyn also recounted an incident be an interesting angle in the trial.” in May 2009 when she became concerned for appellant's safety while Janet was out of the country. When she called him, he sounded intoxicated, so she called a neighbor to check Appellant was tried for Janet's murder, and he asserted the on him, and he was subsequently taken to the hospital for an affirmative defense of insanity. “overdose situation.”

B. Facts Relevant to Voir Dire *4 Foltyn believed that Janet had given appellant an ultimatum During its voir dire examination of the venire, the State to “choose between the booze, drugs, your alcohol, or I'm explained the elements of the affirmative defense of insanity leaving.” Instead, appellant entered the assisted living facility in an attempt to ascertain whether the potential jurors would because “someone had to take care of him; and [Janet] would properly apply the law. The prosecutor explained that there not bring him home.” Foltyn testified that this was because of were essentially three prongs to the insanity defense and stated appellant's drug use and Janet's concern that he “would be that a defendant asserting the insanity defense would be doing the same old thing.” required to establish that he was suffering from a severe mental disease or defect and that there was a causal connection between the mental illness and the crime. Finally, the Janet and appellant's neighbor, Betty McCagnan, likewise prosecutor stated, “Third prong[:] Did the defendant know that testified about the overdose incident. She testified that Foltyn his conduct was wrong? Wrong is defined as legally, socially called her and asked her to go check on appellant. When or morally impermissible.” Appellant objected, stating, “There McCagnan arrived at appellant's home, she discovered him in is no legal definition for wrong, and I object to her inserting the living room looking “extremely pale” with “some bruising her definition. Because since there is no legal definition, then along his legs.” She understood that appellant had “[t]aken a it's up to the jury.” The State replied that it used the definition lot of pills,” so she called an ambulance, and appellant was “from case law.” Appellant argued, “It's not in the statute taken to the hospital. McCagnan also testified that Janet had law.” The trial court overruled the objection.2 given appellant an ultimatum because she wanted him “to clean it up, get on with it, and she wasn't going to be around to watch him destroy himself.” McCagnan testified that Janet C. Facts Relevant to Appellant's Insanity Defense eventually filed for divorce and that appellant went to live in A significant portion of the trial involved evidence relevant to an assisted living facility because Janet wanted “to protect appellant's mental state before, during, and after the offense him” and “didn't want him to have access to the internet so that and the validity of his insanity defense. Appellant's former he could order prescription drugs, or whatever drugs, whatever supervisor, Paul Steets, testified that appellant had worked at he was ordering.” a brokerage firm until September 2006, when he had a panic attack while at work. Following that incident, appellant was unable to focus and could not complete his work, so he went McCagnan testified that appellant left the first assisted living on medical leave. Steets testified that appellant needed to facility, lived somewhere else for a time, and eventually complete some continuing education courses to return to work moved into another assisted living facility. She recalled that

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McAfee v. State, --- S.W.3d ---- (2015)

there were occasions during this time when Janet did not know filed a counterpetition on appellant's behalf in the divorce where appellant was, and Janet was afraid that appellant might proceeding. hurt her. McCagnan stated that Janet sent a letter to her and other neighbors at one point informing them that a friend had helped appellant escape from the “supervised facility” where Amaldo Mariano, the assistant director of appellant's assisted he had been staying and that she did not know where he was. living facility, testified that his facility assisted its residents in Janet's letter stated that she was afraid because appellant had their daily living by providing meals, housekeeping, and threatened to kill her before, and she had a letter from his medication management. The facility was not a treatment psychiatrist explaining that he was a danger to himself and facility or a “lockup” facility, so it was not an appropriate others. Janet informed her neighbors that she had installed an place for someone suffering from dementia or cognitive alarm system and new locks and asked that they call the police disorders. He recalled that, at the time appellant was admitted, if they saw anyone at the house while she was out of the appellant indicated that he suffered from depression. Mariano country. did not recall appellant claiming that he suffered from dementia. Mariano testified that appellant told him about various aspects of his relationship with Janet, including Appellant's friend, Charles Storer, testified regarding his appellant's statement that she had threatened to report his drug relationship with appellant. Storer testified that he had known usage to his employer and his statements that she had made appellant for about twenty-five years and that their relationship various other threats against him. Mariano testified that had begun as a friendship. Storer described himself as appellant fed, dressed, and groomed himself without “probably [appellant's] closest friend.” Storer maintained a assistance, that he acted alert and did not display any cognitive friendship with appellant in which they would visit socially, issues, and that appellant seemed to function fine while he was attending special events or going out to eat as often as twice a in the facility. Mariano also agreed that the nature of the week. However, following appellant's breakdown at work in facility necessarily limited appellant's access to prescription 2006, Storer noticed a change in appellant and did not see him drugs and alcohol. as often socially. He testified that appellant's personality underwent a drastic change— appellant went from an outgoing, positive person to a withdrawn and Appellant's treating psychiatrist, Dr. Scott Sprabery, testified uncommunicative person almost overnight. that he treated appellant from September 2007 until April 2010, approximately one month before the murder. Dr. Sprabery testified that his main practice involved prescribing After 2006, Storer tried to maintain contact with appellant but medication and medication management. In September 2007, only saw him once or twice a month. Storer testified that he when he first saw appellant, appellant was taking an visited appellant in the assisted living facility and that, at one antidepressant, two anti-anxiety medications, an antipsychotic, point, appellant called him to come remove him from the a stimulant, and a sleep aid, and he was undergoing facility. Storer had concerns about the first assisted living electroconvulsive therapy for depression. Dr. Sprabery facility where appellant lived, in part because of the strict testified that appellant presented with symptoms of depression, regulations in place there and because of the other kinds of anxiety, poor energy, and “continuing crying spells.” He people living there. Appellant told Storer that he did not like testified that, at the time he first saw him, appellant had been the facility and asked Storer to pick him up. Storer brought out of work for almost a year due to his worsening depression appellant home with him and allowed appellant to live with and had had two hospitalizations from which he was still him and his wife for a few weeks. However, this arrangement trying to recover. ended when appellant overdosed and had to be taken back to the hospital.

Dr. Sprabery testified that while appellant was hospitalized prior to coming into his care appellant exhibited “psychotic *5 Storer testified that he was representing appellant pro bono, features,” such as delusions that there was something wrong without a formal, written agreement, in his divorce from Janet with his body or believing that he had been poisoned. After at the time of the murder and that he had “reservations” about completing his own evaluation of appellant, Dr. Sprabery the way Janet was treating appellant with regard to the diagnosed appellant as having “major depressive disorder, divorce. He believed that Janet was trying to take advantage recurrent, severe” and also determined that appellant had a of appellant and that, although Janet had tried to help panic disorder. Dr. Sprabery subsequently modified appellant's appellant for a while, she had essentially abandoned him. medications multiple times and took appellant off of his However, Storer had never heard appellant say anything antipsychotic medication prior to appellant's removal to an disparaging about Janet. Four days before the murder, Storer assisted living facility.

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McAfee v. State, --- S.W.3d ---- (2015)

psychiatrist, evaluated appellant on June 16, 2010. He diagnosed appellant with a cognitive disorder and severe Dr. Sprabery also testified that appellant's hospital records major depression that manifested itself with “psychotic indicated that he had a long-term stimulant addiction over features.” Dr. Pollock explained that this meant that appellant's approximately twenty years of his adult life and that he had disorder was accompanied by a break with reality and an concerns about prescribing stimulants for someone with inability to judge or analyze real world events properly. Dr. appellant's history. He stated that appellant never presented Pollock also determined that appellant suffered from a with or complained of any psychosis or delusions while under neurological disease of the brain and central nervous system his care. Dr. Sprabery also testified that appellant never and that he suffered from dementia as well. Dr. Pollock informed him that he had any addiction to alcohol. If Dr. testified that appellant's disorders were aggravated by stress Sprabery had suspected alcohol abuse, he would have been and that exposure to severe stress could cause him to develop very concerned because the combined effects of alcohol with psychotic behavior. Dr. Pollock acknowledged that his opinion some of the medications appellant was taking could have been that appellant suffered from a vascular neurocognitive disorder very dangerous. Dr. Sprabery acknowledged that long-term conflicted with the opinion of appellant's treating psychiatrist, use of methamphetamines and alcohol can cause depression, who had found no neurological reasons for appellant's and he also stated that amphetamine use can cause memory depression, despite reviewing the same MRI scans on which deficits and change brain chemicals when used for extensive his own opinion was based. periods of time, as appellant had done over the course of twenty years.

Dr. David Axelrad testified as appellant's expert psychiatrist at trial. He reviewed extensive documentation regarding *6 Dr. Sprabery's last appointment with appellant occurred appellant's health and the reports of other doctors who had less than a month before the murder. Appellant complained of treated appellant, and he spent several hours meeting with persistent depression and sleep difficulties. Appellant did not appellant. His first meeting with appellant occurred on June 7, demonstrate or complain of psychotic behavior, hallucinations, 2010, and he also met with appellant on April 6, 2011, or delusions. February 29, 2012, and May 1, 2012. Dr. Axelrad prepared a lengthy report expressing his finding that, on the night of the offense, appellant suffered from “major depressive disorder, Dr. Jamal Rafique, the staff psychiatrist for the Harris County severe, with psychotic and melancholy features” and a “major Jail, testified regarding the jail's records of appellant's mental vascular neurocognitive disorder with significant behavioral health. When appellant first arrived in the jail in 2010 after disturbance.” Janet's murder, he underwent an initial assessment. Appellant did not report any delusions or hallucinations. In May 2010, a psychologist working with the mental health unit of the jail Dr. Axelrad testified that appellant suffered from a psychotic diagnosed appellant with major depressive disorder without episode on the night he committed the offense, which mean psychosis. Appellant's health records also demonstrated that he that appellant could not know what was true or not true and had a traumatic brain injury as a result of the self-inflicted would not know right from wrong. Dr. Axelrad opined that gunshot wound at the time of the murder. appellant did not know right from wrong when he shot his wife. He testified that it was possible for appellant to demonstrate clarity of thought and realize his acts were wrong Appellant's first “psychiatric incident” occurred in January after the psychotic episode was over. 2011, after he had been incarcerated for approximately eight months. Appellant experienced delusions that people were chasing him. At that time, appellant was referred to the mental *7 Dr. Mark Moeller testified as the State's expert psychiatrist. health unit for closer monitoring and mental health treatment. Dr. Moeller met with appellant on two occasions and spent When Dr. Rafique first met with appellant in January 2011, he about four hours reviewing appellant's medical records. He diagnosed appellant as having dementia and also believed he testified that there was no causal connection between might have a psychotic illness. Dr. Rafique was not able to appellant's disorders and the murder. Dr. Moeller likewise did confirm his “working diagnosis” of dementia with possible not believe that appellant was suffering from dementia and did psychosis because he never met with appellant again. not agree with appellant's neurologist and neuropsychiatrist that appellant was suffering from a major neurovascular disorder; rather, after viewing appellant's MRIs and other Dr. Richard Pollock, a neuropsychologist who was hired by records, he believed the amount of degeneration shown in the the defense and worked closely with appellant's expert brain was normal.

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McAfee v. State, --- S.W.3d ---- (2015)

wife. Storer then drove to the house where appellant had shot Janet and made a statement to a police officer at the scene.

Dr. Axelrad testified regarding the shortcomings in Dr. Moeller's expert report and opinion testimony. He stated that Dr. Moeller's opinion did not “address the substantive deficits Regarding the specific legal advice that he gave appellant on in [appellant's] cognitive abilities that were identified by the the phone that night, Storer testified that appellant told him two latest neuropsychologists who evaluated” appellant and that “they were going to execute him for what he had done to who were experts in their field. his wife,” and Storer told him that it was not a capital crime and “they're not going to try to kill you over it.” Storer acknowledged that he would have given the same advice to a D. Facts Relevant to Admission of Storer's Phone client or a friend. Conversations with Appellant on the Evening of the Murder The State called Charles Storer, appellant's friend and divorce attorney, during its case-in-chief. However, appellant moved Storer also acknowledged that he informed the police that he to suppress Storer's testimony based on an assertion of never represented appellant as his criminal lawyer. According attorney-client privilege, and the trial court held a hearing to to the statement that Storer made to the police, the majority of determine whether appellant's statements to Storer were his conversation with appellant involved appellant's covered by the privilege. representations that he was going to kill himself and Storer's attempts to talk him out of committing suicide. Storer acknowledged that when he gave his statement to the police At the suppression hearing, Storer testified that appellant regarding his conversations with appellant, it never occurred called him on the evening that he murdered Janet and admitted to him to assert the attorney-client privilege on appellant's that he had “done something horrible” and that he had killed behalf. However, the evidence also demonstrated that the his wife. Storer stated that the phone conversation was private, police were aware that Storer had acted as appellant's attorney that appellant was talking to him as his attorney, that he gave in his divorce proceedings, and appellant repeatedly told the appellant legal advice, and that when he arrived at the scene SWAT officers that he wanted to talk to his attorney and that later in the evening, he introduced himself to the police as he would not come out of the house until his attorney arrived. appellant's attorney. Storer further testified that appellant had Storer further testified that he had helped facilitate appellant's not waived his attorney-client privilege. hiring of a criminal defense attorney, and he had maintained a friendship with appellant while he was incarcerated in the Harris County Jail.

On cross-examination, the State established that Storer had been an attorney for approximately thirty years and that his main practice areas were family law, probate, and personal *8 At the suppression hearing, appellant argued that Storer's bankruptcy. Several years after he met appellant, Storer testimony regarding his conversations with appellant on the represented appellant in his divorce from his first wife. After evening of the murder was inadmissible because the that time, Storer maintained a personal, social relationship conversations were protected by the attorney-client privilege. with appellant. Storer also considered Janet a friend. Appellant argued that, although he eventually hired criminal-defense counsel, at the time of the offense he did not have any other counsel—Storer was the only attorney he had.

Janet filed for divorce in March 2010, and Storer began to The State argued that the purpose of the privilege was to represent appellant in the divorce proceeding on May 4, 2010, protect attorney-client communications pertaining to legal approximately four days before the murder. Storer stated that representation and that it would be an abuse of the privilege to he and appellant had a verbal attorney-client agreement, and protect a defendant's inculpatory statements solely on the basis he admitted that he had never agreed to represent appellant in that they were made to a friend who also happened to be an any criminal matters and that he was not a criminal-defense attorney. The State argued that there was no on-going attorney. attorney-client relationship between Storer and appellant at the time of the communications, that Storer never represented appellant in this or any other criminal matter, and that Storer testified that on the night of May 8, 2010, when appellant called Storer because Storer was his best friend, not appellant called to tell him that he had shot Janet, he because he was a lawyer. immediately called 9–1–1 and reported that appellant, whom he described in the 9–1–1 call as a friend, had just shot his

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The trial court ruled that the attorney-client privilege did not defendant is claiming that his evidence is more than sufficient exist and denied appellant's motion to suppress. to support his affirmative defense, while the State's evidence is insufficient to rebut it.”).

Storer testified before the jury regarding his twenty-five year friendship with appellant, just as he had in the suppression A. Standard of Review hearing. Regarding the night of the murder, Storer testified [1] [2]The Texas Court of Criminal Appeals has adopted the that he had “[m]aybe six or eight” phone conversations with civil standard of factual-sufficiency review for challenges to appellant. He stated that he left the scene of the murder around the rejection of an affirmative defense because the burden of midnight and that he visited the police station the next day to proof is that of “preponderance of the evidence,” the same give a statement regarding what he knew about the murder. burden applied in civil proceedings. Id. at 671 (citing Meraz v. State, 785 S.W.2d 146, 149, 153–55 (Tex.Crim.App.1990)). In making a factual-sufficiency claim, the defendant is Following the testimony of numerous other witnesses, during asserting that, considering the entire body of evidence, the the rebuttal phase of trial, the State offered the recording of jury's adverse finding on his affirmative defense was so the 9–1–1 call Storer made and again called him to the stand. “against the great weight and preponderance” of the evidence Appellant renewed his objection to the admission of Storer's as to be manifestly unjust. Id. testimony, which the trial court noted for the record.

*9 [3] [4] [5]Accordingly, we must view the entirety of the Storer testified that he called 9–1–1 “almost immediately” evidence in a neutral light. Id. However, we “may not usurp after his first phone conversation with appellant on the evening the function of the jury by substituting [our] judgment in place of the murder and then he went to the scene. He recalled that of the jury's assessment of the weight and credibility of the appellant told him that “that something horrible has happened, witnesses' testimony.” Id. We may “sustain a defendant's that he had just shot Janet.” Storer recalled that appellant had factual-sufficiency claim only if, after setting out the relevant “snapped,” that appellant believed he was in trouble, and that evidence and explaining precisely how the contrary evidence appellant wanted to commit suicide. Storer and appellant greatly outweighs the evidence supporting the verdict, [we] discussed where appellant wanted to be buried, and appellant clearly state[ ] why the verdict is so much against the great asked him to look after his son. Storer also recalled appellant's weight of the evidence as to be manifestly unjust, telling him that he believed his life was over and that either he conscience-shocking, or clearly biased.” Id. If we determine was going to spend the rest of his life in jail for killing Janet that the evidence supporting an affirmative defense so greatly or that he would be executed. outweighs the State's contrary evidence that the verdict is manifestly unjust, then we may reverse the trial court's judgment and remand for a new trial. Id. at 672.

E. The Jury's Verdict and the Trial Court's Judgment The jury rejected appellant's affirmative defense and found him guilty of murder. The trial court assessed his punishment [6] [7]Insanity is an affirmative defense, which must be proved at ninety-nine years' confinement and assessed a $10,000 fine. by a preponderance of the evidence. Tex. Penal Code Ann. §§ The trial court also assessed the statutorily required $133 in 2.04, 8.01 (Vernon 2011). To establish the affirmative defense consolidated court costs. of insanity, the defendant must prove “that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” Id. § 8.01(a). The law presumes that the accused is sane, and the Insanity Defense accused bears the burden of proving by a preponderance of the evidence that he is insane. Martinez v. State, 867 S.W.2d 30, In his first issue, appellant challenges the factual sufficiency 33 (Tex.Crim.App.1993); see Ruffin v. State, 270 S.W.3d 586, of the jury's rejection of his insanity defense. Stated another 591–92 (Tex.Crim.App.2008) (“Texas law ... presumes that a way, appellant argues that he offered so much evidence in criminal defendant is sane and that he intends the natural support of his insanity defense and the State offered so little consequences of his acts.”). evidence rebutting his defense that the jury's rejection of his affirmative defense was against the great weight and preponderance of the evidence. See Matlock v. State, 392 [8] [9] [10]The insanity defense focuses on whether the S.W.3d 662, 670 n. 29 (Tex.Crim.App.2013) (“Technically, accused understood the nature of his action and whether he a defendant's claim is not one of ‘factual sufficiency.’ ... The knew he should not do it. Ruffin, 270 S.W.3d at 592; Bigby v.

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McAfee v. State, --- S.W.3d ---- (2015)

State, 892 S.W.2d 864, 877–78 (Tex.Crim.App.1994). In the the inadequacies of Dr. Moeller's report and expert testimony context of the insanity defense, the word “wrong” means in comparison to the testimony and report of his own expert, illegal. Ruffin, 270 S.W.3d at 592. If the accused knows that Dr. Axelrad, who conducted a thorough evaluation of his conduct is “illegal” by societal standards, then he appellant and his medical records and determined that understands that his conduct is wrong, even if, due to a mental appellant did not know right from wrong at the time of the disease or defect, he thinks his conduct is morally justified. offense. Appellant also relies on evidence indicating that he See id. Thus, proof of a mental disease or defect alone is not had no prior criminal history, and he argues that it was not sufficient to establish an affirmative defense of insanity. Nutter until he became ill and his brain degenerated that he and Janet v. State, 93 S.W.3d 130, 132 (Tex.App.–Houston [14th Dist.] began to have marital difficulties. He argues that a 2001, no pet.); see Bigby, 892 S.W.2d at 877–78 (“The issue preponderance of the evidence established that he was “a very of insanity is not strictly medical. It also involves both legal sick man”—“[a] once powerful and wealthy stockbroker and ethical considerations.”). forced to leave his home ... and go to an assisted living facility for dementia.”

[11]Although jurors may not arbitrarily disregard expert testimony as to insanity, neither may they give conclusive The record contains evidence from Dr. Rafique, the jail effect to such testimony. Graham v. State, 566 S.W.2d 941, psychiatrist, and appellant's expert witnesses, Dr. Axelrad and 950–51 (Tex.Crim.App.1978) (“Opinion testimony does not Dr. Pollock, that appellant suffered from delusions, dementia, establish material facts as a matter of law.”). The and possible psychosis in addition to his depression, and those circumstances of the crime itself are also important in doctors believed that appellant's disorders were attributable to determining the mental state of the accused at the time of the a degenerative neurological disorder. Dr. Axelrad opined that commission of the offense, and evidence indicating knowledge appellant did not know that his actions were wrong at the time of wrongful conduct, such as an attempt to conceal he committed the murder. On the other hand, the State's expert incriminating evidence or elude law enforcement, may be witness, Dr. Moeller, opined that appellant was not suffering considered.Id. at 951; see also Torres v. State, 976 S.W.2d from a degenerative neurological disorder and that appellant 345, 347–48 (Tex.App.–Corpus Christi 1998, no pet.) was sane at the time he committed the offense, in conflict with (holding that, in reaching its decision on insanity, jury may the opinions of Dr. Pollock and Dr. Axelrad. Dr. Moeller's consider circumstantial evidence, including defendant's expert report is shorter than Dr. Axelrad's report, and Dr. demeanor before and after committing crime, defendant's Moeller did not place the same value on the opinions and attempts to evade police or conceal incriminating evidence, reports of some of the experts that Dr. Axelrad relied upon in defendant's expressions of regret or fear of consequences of reaching his opinion. However, this fact by itself does not his actions, and any other possible explanations for defendant's indicate that the jury's rejection of appellant's insanity defense behavior). went against the great weight and preponderance of the evidence.

[12]Whether the defense of insanity was proved is a decision that lies within the province of the jury, both as to the Appellant construes the evidence as demonstrating that he was credibility of witnesses and the weight of the evidence and as “a very sick man” who was forced to move to an assisted to the limits of the defense. Bigby, 892 S.W.2d at 878; see living facility for dementia. This view of the evidence does not also Reyna v. State, 116 S.W.3d 362, 367 (Tex.App.–El Paso account for the testimony of Rosemary Foltyn, Betty 2003, no pet.) (“The issue of insanity at the time of the offense McCagnan, Charles Storer, and Dr. Sprabery that appellant lies within the province of the jury, and we will overturn its had a history of drug and alcohol abuse that could also have decision only where insanity is undisputed or resolved to one contributed to his mental disorders. Foltyn testified that end of the spectrum outside the realm of discretion.”). appellant had a history of drug and alcohol abuse, and Dr.

Sprabery testified regarding the negative effects drug and alcohol abuse could have had on appellant's health.

B. Analysis Furthermore, several witnesses, including Mariano, *10 [13]Here, appellant argues that the great weight and McCagnan, and Foltyn, testified that appellant was not placed preponderance of the evidence presented at trial supports his in assisted living due to dementia, but rather as a result of his claim of insanity, and, therefore, the jury erred in rejecting his drug issues. affirmative defense. Appellant argues that the State's expert witness, Dr. Moeller, did not conduct a thorough investigation and “only reiterated the facts of the offense in determining There was no medical evidence indicating that appellant [appellant] was sane at the time of the offense.” He points to suffered from anything other than severe major depressive

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McAfee v. State, --- S.W.3d ---- (2015)

disorder and anxiety until after he committed the murder, shot After the officers discovered the crime, appellant insisted on himself in the face, and was incarcerated in the Harris County contacting his lawyer and refused to leave his house. Hawkins, Jail. Appellant's treating psychiatrist, Dr. Sprabery, testified the crisis intervention counselor, testified that appellant did that he treated appellant up until the month preceding the not demonstrate any of the characteristics of someone offense and he had never had any reason to believe that experiencing psychosis or hallucinations. At the hospital, appellant suffered from psychosis, delusions, hallucinations, appellant told a nurse that he had shot his wife, and he refused dementia, or any degenerative neurological disorder or other to give a statement to police regarding the incident before physiological reason for his mental disorders. Dr. Rafique, the consulting with his lawyer. This evidence regarding appellant's jail psychiatrist, testified that the jail records demonstrated demeanor before, during, and after the crime, his attempts to only that appellant suffered from major depressive disorder evade police or conceal incriminating evidence, and his until January 2011, months after the murder, at which time expressions of regret or fear for the consequences of his appellant began experiencing symptoms of psychosis and actions is relevant to the jury's decision to reject appellant's dementia. Dr. Pollock, one of appellant's expert witnesses, insanity defense. See Torres, 976 S.W.2d at 347–48; see also conceded that his diagnosis of degenerative neurological Robinson v. State, 236 S.W.3d 260, 267–68 disorder conflicted with that of appellant's treating (Tex.App.–Houston [1st Dist.] 2007, pet. ref'd) (holding that psychiatrist, who did not believe appellant's disorders were the evidence of flight may demonstrate consciousness of guilt). result of a physical disorder. Thus, while there were Finally, the evidence from multiple witnesses regarding conflicting expert opinions, we cannot say the overwhelming appellant's history of drug abuse and evidence that appellant weight of the medical evidence indicated that appellant and Janet were divorcing provide other possible explanations suffered from dementia or psychosis at the time he committed for appellant's behavior. See Torres, 976 S.W.2d at 347–48. the murder. See Tex. Penal Code Ann. § 8.01(a) (providing that affirmative defense of insanity applies to actor who did not know his conduct was wrong “as a result of severe mental We conclude that there was sufficient evidence from which the disease or defect”). jury could determine that appellant was aware at the time he murdered Janet that his conduct was wrong. See Tex. Penal Code Ann. § 8.01(a); Bigby, 892 S.W.2d at 877–78 (stating *11 Furthermore, contrary to appellant's assertion, it is proper that insanity defense focuses on whether accused understood for the jury to consider the circumstances of the crime itself. nature of his action and whether he knew he should not do it). See Graham, 566 S.W.2d at 950 (stating that although jurors We cannot conclude that the evidence supporting appellant's may not arbitrarily disregard expert testimony as to insanity, affirmative defense so greatly outweighs the State's contrary neither may they give conclusive effect to such testimony); see evidence that the jury's verdict was manifestly unjust. See also Torres, 976 S.W.2d at 347–48 (holding that, in reaching Matlock, 392 S.W.3d at 671–72. its decision on insanity, jury may consider circumstantial evidence, including defendant's demeanor before and after committing crime, defendant's attempts to evade police or We overrule appellant's first issue. conceal incriminating evidence, defendant's expressions of regret or fear of consequences of his actions, and any other possible explanations for defendant's behavior).

The State's Definition of “Wrong” During Voir Dire

The record indicates that, on the night of the offense, appellant In his second issue, appellant argues that the trial court erred appeared normal when Officers Nellipallil and Scott came to in overruling his objection to the State's use of an improper investigate the security alarm and he told them it was a false definition of “wrong” during voir dire. alarm. He lied to them and attempted to conceal Janet from them, closing the door in Officer Scott's face when Janet stumbled into view, and the officers originally believed his lie. Here, the State defined the term “wrong” in the context of its When the officers returned to the house to check on Janet, attempt to ascertain whether the potential jurors would appellant asked for a warrant before he would allow them to properly apply the law of insanity. The prosecutor stated that enter the home. Appellant tried to flee with his car keys and “[w]rong is defined as legally, socially or morally his dog, but he left the dog in the vehicle and returned to the impermissible.” Appellant objected, stating, “There is no legal house when he was confronted by the officers. definition for wrong, and I object to her inserting her definition. Because since there is no legal definition, then it's up to the jury.” The State replied that it used the definition

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McAfee v. State, --- S.W.3d ---- (2015)

“from case law.” Appellant argued, “It's not in the statute that “inquiry into a prospective juror's understanding law.” The trial court overruled the objection. of what proof beyond a reasonable doubt means constitutes a proper question regardless of whether the law specifically defines that term. The jury's *12 On appeal, appellant argues that the trial court erred in ability to apply the correct standard of proof remains allowing the State to give “its own definition of wrong” and an issue in every criminal case”). that the prosecutor's statement of law regarding the definition of “wrong” was incorrect. See Thompson v. State, 95 S.W.3d 537, 541 (Tex.App.–Houston [1st Dist.] 2002, no pet.) (holding that voir dire questions that misstate law are [19] [20]Rather, when a term is undefined in the improper). Appellant argues that, by overruling his objection, charge, we presume that the jury “attach[ed] a “the [trial] court gave the definition its imprimatur” and common understanding to the meaning of the term [ impinged on the jury's ability to assign the term any meaning ].” Smith v. State, 297 S.W.3d 260, 275 which is acceptable in common parlance. (Tex.Crim.App.2009). A trial court's erroneous ruling on issues relating to questioning a venire panel about its understanding of the burden of proof A. Standard of Review is non-constitutional error subject to a harm analysis [14] [15] [16] [17]“The trial court has broad discretion over under Texas Rule of Appellate Procedure 44.2(b). the process of selecting a jury.” Fuller v. State, 363 S.W.3d See Tex.R.App. P. 44.2; Fuller, 363 S.W.3d at 583, 585 (Tex.Crim.App.2012) (quoting Sells v. State, 121 587–89; Rich v. State, 160 S.W.3d 575, 577 S.W.3d 748, 755–56 (Tex.Crim.App.2003)). We will not (Tex.Crim.App.2005). We review non-constitutional disturb the trial court's ruling on the propriety of a particular error to determine whether it affected an appellant's voir dire question absent an abuse of discretion. Id. A trial substantial rights. Tex.R.App. P. 44.2(b); Johnson v. court abuses its discretion when it prohibits a proper question State, 43 S.W.3d 1, 4 (Tex.Crim.App.2001). An about a proper area of inquiry. Id. A question is proper if it error affects a substantial right “when the error has seeks to discover a juror's views on an issue applicable to the a substantial and injurious effect or influence” on the case. Id. However, voir dire questions that misstate the law are verdict. Id. improper. Thompson, 95 S.W.3d at 541.

B. Analysis

[18]Generally, a prosecutor's statements during voir dire will *13 [21]Preliminarily, we note that appellant's not constitute error unless they are contrary to the trial court's complaint is not one of charge error—the jury charge. See Wilder v. State, 111 S.W.3d 249, 253 charge did not define the term “wrong,” nor does (Tex.App.–Texarkana 2003, pet. ref'd). The Court of Criminal appellant argue that the charge should have included Appeals has held that voir dire questions regarding a a definition of that term. See Kirsch v. State, 357 particular, statutorily undefined term are proper when the S.W.3d 645, 651–52 (Tex.Crim.App.2012) (holding question seeks to discover the venire members' views on an that fact that appellate court defined issue applicable to the trial, is not repetitious, and is not in an statutorily-undefined term when reviewing improper form. Fuller, 363 S.W.3d at 586 (quoting Woolridge sufficiency of the evidence in one case does not v. State, 827 S.W.2d 900, 906 (Tex. Crim.App.1992)). The necessarily mean definition must or even should be court stated, provided to jury in future cases); Ramos v. State, 303 S.W.3d 302, 308 (Tex.Crim.App.2009) (holding [T]he fact that no definition will be provided that, as general rule, terms need not be defined in [in the jury charge] for a term does not render jury charge if they are not statutorily defined). Thus, a prospective juror's understanding of that appellant's reliance on the reasoning in Kirsch, term irrelevant. To the contrary, that which analyzed the harm of providing an instruction understanding becomes more crucial to the to the jury in the jury charge itself, is misplaced in intelligent exercise of either the State's or the this case. See 357 S.W.3d at 651–52. defendant's peremptory challenges because there is no definition to guide what could be a juror's skewed perception of the term. The question in this case is whether the trial court erred, as a matter of law, by allowing the State to Id. (stating, in context of analyzing allegedly give an improper definition of the word “wrong” to improper definition of “beyond a reasonable doubt,” the jury that was not later incorporated in an

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McAfee v. State, --- S.W.3d ---- (2015)

instruction in the charge. The Penal Code does not that the error had a substantial or injurious effect or define “wrong.” However, the Court of Criminal influence on the verdict against appellant or that Appeals has held that “wrong” in the context of the appellant's substantial rights were affected, as affirmative defense of insanity means “illegal” by required to demonstrate reversible error. See societal standards.Ruffin, 270 S.W.3d at 592; see Tex.R.App. P. 44.2(b); Johnson, 43 S.W.3d at 4. also Bigby, 892 S.W.2d at 878 (holding that focus of insanity inquiry should not be on appellant's morality, but should instead be on “whether [he] *14 We overrule appellant's second issue. understood the nature and quality of his action and whether it was an act he ought to do.... By accepting and acknowledging his action was ‘illegal’ by societal standards, [Bigby] understood that others Admission of Storer's Testimony believed his conduct was ‘wrong’ ”) (internal citations omitted). In his third issue, appellant argues that the trial court erred in denying his motion to suppress the testimony of Charles Storer, his attorney and friend The prosecutor's definition of “wrong” as “legally, whom he called in the course of committing the socially, or morally impermissible” expressed a offense. commonly accepted meaning of the word that was somewhat broader than the strict legal definition of wrong as “illegal” by societal standards. Compare A. Standard of Review Ruffin, 270 S.W.3d at 592 (holding that “wrong,” in [22] [23]“In reviewing a trial court's ruling on a context of insanity defense, means “illegal” by motion to suppress, appellate courts must view the societal standards) and Bigby, 892 S.W.2d at 878 evidence in the light most favorable to the trial (holding that focus of insanity inquiry should be on court's ruling.” Johnson v. State, 414 S.W.3d 184, “whether [appellant] understood the nature and 192 (Tex.Crim.App.2013); see also Shepherd v. quality of his action and whether it was an act he State, 273 S.W.3d 681, 684 (Tex.Crim.App.2008) ought to do.... By accepting and acknowledging his (holding that we review denial of motion to suppress action was ‘illegal’ by societal standards, [Bigby] evidence for abuse of discretion). When, as here, a understood that others believed his conduct was trial court makes explicit fact findings, we must ‘wrong’ ”), with Merriam–Webster's Collegiate determine whether the evidence viewed in the light Dictionary 1447 (11th ed.2003) (defining “wrong” most favorable to the trial court's ruling supports the as “not according to the moral standard” or “not fact findings. See Johnson, 414 S.W.3d at 192; see right or proper according to a code, standard, or also State v. Cullen, 195 S.W.3d 696, 699 convention”). Appellant does not identify any other (Tex.Crim.App.2006) (holding that trial court's point in the proceedings where the State's definition findings of fact and conclusions of law are sufficient of the word “wrong” was used, and it is undisputed if they are “recorded in some way, whether written that the jury charge did not include any definition of out and filed by the trial court, or stated on the the word “wrong.” We thus presume that the jury record at the hearing”). “attach[ed] a common understanding to the meaning of term[ ].” See Smith, 297 S.W.3d at 275 (holding that jurors are presumed to attach common [24] [25] [26] [27]We review motions to suppress understanding of meaning of terms that are not pursuant to a bifurcated standard under which the defined in jury charge). Moreover, that meaning was trial court's determinations of historical facts and closely similar to the definition in case law and, if mixed questions of law and fact that rely on anything, was more favorable to appellant than the credibility are granted almost total deference when strict legal definition. supported by the record. Johnson, 414 S.W.3d at 192. However, for questions of law or mixed questions of law and fact that do not depend on the Assuming without deciding that the trial court erred evaluation of credibility and demeanor, we review by permitting the prosecution to define the word the trial court's ruling de novo. Id. At a suppression “wrong” during voir dire by using a commonly hearing, the trial court “is the sole trier of fact and accepted definition that was broader than the judge of the credibility of the witnesses and the definition set out in case law, we cannot conclude weight to be given their testimony.” Wiede v. State,

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McAfee v. State, --- S.W.3d ---- (2015)

214 S.W.3d 17, 24–25 (Tex.Crim.App.2007). The by the client or the attorney on behalf of the client. trial court may choose to believe or disbelieve any Tex.R. Evid. 503(c); 61 Tex. B.J. at 382; Cameron, part or all of a witness's testimony. State v. Ross, 32 241 S.W.3d at 19; see also Carmona v. State, 941 S.W.3d 853, 855 (Tex.Crim.App.2000). We sustain S.W.2d 949, 953 (Tex.Crim.App.1997) (holding that the trial court's ruling if it is reasonably supported by attorney-client privilege is designed for client's the record and correct on any theory of law benefit by guaranteeing confidentiality to promote applicable to the case. Laney v. State, 117 S.W.3d forthright communications between lawyer and 854, 857 (Tex.Crim.App.2003). client). The client can waive the privilege by voluntarily disclosing or consenting to the disclosure of a significant part of the privileged matter.Tex.R.

[28]Confidential communications between client and Evid. 511(1), 61 Tex. B.J. at 387;4 Carmona v. State, counsel made to facilitate legal services are 947 S.W.2d 661, 663 (Tex.App.–Austin 1997, no generally insulated from disclosure. See Tex.R. pet.). Disclosure by the attorney does not waive the Evid. 503(b)(1), 61 Tex. B.J. 374, 381 (Tex. & privilege absent the client's consent. Carmona, 947 Tex.Crim.App.1998, amended 2015) (providing that S.W.2d at 663 (citing Cruz v. State, 586 S.W.2d client has privilege to refuse to disclose and to 861, 865 (Tex.Crim.App.1979)). prevent any other person from disclosing confidential communications between client and lawyer made for purpose of facilitating rendition of [31]A party asserting a privilege has the burden of professional legal services to client);3 Cameron v. showing that the privilege applies. Peto v. State, 51 State, 241 S.W.3d 15, 19 (Tex.Crim.App.2007). S.W.3d 326, 327 (Tex.App.–Houston [1st Dist.] Thus, the scope of the attorney-client privilege as set 2001, pet. ref'd); Carmona, 947 S.W.2d at 663 out in the rules of evidence is limited to (“The privilege claimant must prove the existence of communications “made by a client seeking legal the privilege.”) (citing Austin v. State, 934 S.W.2d advice from a lawyer in her capacity as such and the 672, 674 (Tex.Crim.App.1996), and Carmona, 941 communication must relate to the purpose for which S.W.2d at 954 n. 6). the advice is sought.” State v. DeAngelis, 116 S.W.3d 396, 404 (Tex.App.–El Paso 2003, no pet.). “[T]he proof, express or circumstantial, must [32] [33] [34] [35]Once the privilege has been indicate the client's desire for confidence and established, the party seeking to establish waiver of secrecy.” Id. the privilege has the burden of going forward with evidence that supports a finding of waiver. Carmona, 947 S.W.2d at 663 (citing Carmona, 941 *15 “A communication is ‘confidential’ if not S.W.2d at 953). Waiver may be inferred from the intended to be disclosed to third persons other than totality of the circumstances and reasonable those to whom disclosure is made in furtherance of inferences. Id. The disclosure of the privileged the rendition of professional legal services to the material by defense counsel is relevant in client or those reasonably necessary for the determining waiver. Id. After the State has gone transmission of the communication.” Tex.R. Evid. forward with evidence supporting waiver of the 503(a)(5), 61 Tex. B.J. at 381; DeAngelis, 116 privilege, the party claiming the privilege “may find S.W.3d at 404. Rule 503(b)(2) adds a special rule of it wise to present evidence of no waiver.” Id. privilege for criminal cases: “In criminal cases, a client has a privilege to prevent the lawyer or lawyer's representative from disclosing any other [36] [37]We review the trial court's decision on the fact which came to the knowledge of the lawyer or applicability of a privilege for an abuse of discretion. the lawyer's representative by reason of the Id. at 664. We can reverse a decision only if “the attorney-client relationship.” Tex.R. Evid. 503(b)(2), trial court applied an erroneous legal standard, or 61 Tex. B.J. at 381; Cameron, 241 S.W.3d at 19. when no reasonable view of the record could support the trial court's conclusion under the correct law and the facts viewed in the light most favorable to its [29] [30]“In general, privileges are exclusionary legal conclusion.” Id. (quoting DuBose v. State, 915 rules of evidence that may be used to suppress S.W.2d 493, 498 (Tex.Crim.App.1996)). relevant evidence.” Cameron, 241 S.W.3d at 19. The rule specifies that the privilege may be claimed

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McAfee v. State, --- S.W.3d ---- (2015)

B. Analysis facilitate legal services. See Tex.R. Evid. 503(a)(5), *16 [38]Here, appellant moved to suppress Storer's 61 Tex. B.J. at 381 (“A communication is testimony regarding the content of appellant's phone ‘confidential’ if not intended to be disclosed to third calls to him on the night of the murder based on an persons other than those to whom disclosure is made assertion of attorney-client privilege. The trial court in furtherance of the rendition of professional legal held a hearing and determined that the services to the client or those reasonably necessary attorney-client privilege did not apply to the phone for the transmission of the communication.”); calls appellant made in the course of committing the Cameron, 241 S.W.3d at 19. Nor did these phone offense. calls constitute the disclosure of “any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the The record contains conflicting evidence regarding attorney-client relationship.” See Tex.R. Evid. the nature of appellant's relationship with Storer at 503(b)(2), 61 Tex. B.J. at 381; Cameron, 241 the time the phone calls occurred. Storer testified S.W.3d at 19. Rather, the evidence supports the trial that he communicated that night with appellant as his court's conclusion that appellant's communications attorney and provided him with legal advice. The were made to Storer in his capacity as appellant's record also contained evidence that appellant told close friend, and not as an attorney providing legal police that he wanted to see his attorney and that representation. when Storer arrived on the scene, he introduced himself as appellant's attorney.

Although the record contains some conflicting evidence, the trial court is the sole trier of fact and However, it was undisputed that appellant and Storer judge of the credibility of the witnesses and the were long-time friends, and Storer testified that he weight to be given their testimony at a suppression was probably appellant's closest friend. Appellant hearing, and we are to grant almost total defense to did not call Storer's legal office; rather, he called the trial court's determinations of historical fact and Storer's cell phone. Storer also acknowledged that he mixed questions of law and fact that rely on did not typically practice criminal defense law. credibility when they are supported by the record. During the suppression hearing, he testified that the See Johnson, 414 S.W.3d at 192; Wiede, 214 advice he gave appellant consisted of informing him S.W.3d 17, 24–25. We cannot conclude that the trial that the murder was not a capital offense for which court “applied an erroneous legal standard” or that he could receive the death penalty, and Storer “no reasonable view of the record could support the admitted that this was the type of advice he would trial court's conclusion” that appellant failed to meet give to anyone, whether they were a client or a his burden of establishing that the attorney-client friend. The remaining content of the phone privilege applied to his communications. See conversations—e.g., appellant's assertion that he Carmona, 947 S.W.2d at 664. wanted to commit suicide and his wishes for his burial, and Storer's attempt to talk appellant out of killing himself—are more typically conversations *17 Given this record, we cannot conclude that the one would have with a friend, not one's attorney. trial court abused its discretion in finding that the Storer acknowledged, both to police officers on the attorney-client privilege did not apply to these day following the murder and at trial, that he had communications. See Johnson, 414 S.W.3d at 192 never represented appellant in a criminal matter. (evidence must be viewed in light most favorable to And Storer acknowledged that when he called 9–1–1 trial court's ruling); Carmona, 941 S.W.2d at 953 and later made his statement to police, it did not (attorney-client privilege is designed to guarantee occur to him to assert the attorney-client privilege on confidentiality to promote forthright communication appellant's behalf. between lawyers and client); see also DeAngelis, 116 S.W.3d at 404 (attorney-client privilege applies to communications “made by a client seeking legal Viewing the evidence in the light most favorable to advice from a lawyer in her capacity as such and the the trial court's ruling, as we must, we conclude there communication must relate to the purpose for which is evidence to support the trial court's ruling that the advice is sought” and “the proof ... must indicate these communications were not confidential the client's desire for confidence and secrecy.”). communications between client and counsel made to

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McAfee v. State, --- S.W.3d ---- (2015)

We have viewed the Texas [separation-of-powers]

We overrule appellant's third issue. provision as generally susceptible to violation in one of two ways:

(1) when one branch of government assumes or is Constitutionality of Court Costs delegated a power “more properly attached” to another branch, or

Following his conviction, the trial court assessed the mandatory $133 in consolidated court costs. In his fourth issue, appellant complains that a portion of (2) when one branch unduly interferes with the court costs, the “crime stoppers fee,” does not another branch so that the other branch cannot fund any cost for the court's function and thus is effectively exercise its constitutionally assigned facially unconstitutional. Appellant argues that this powers. fee should more properly be characterized as a tax and that requiring courts to collect costs for such a tax or program that is not refunded back to the courts Id. (quoting Ex parte Gill, 413 S.W.3d 425, 431–32 is a violation of the separation of powers clause (Tex.Crim.App.2013)). Appellant argues that the because it imposes an executive function on the statutory scheme for collection of the crime stoppers judicial branch. fee improperly delegates a power to the judicial branch that is more appropriately attached to the executive branch. See id.

A. Standard of Review [39] [40] [41]In addressing a constitutional challenge, this court “must begin with the Regarding the allocation of court costs addressed by presumption that the statute is valid and that the appellant, Texas Local Government Code section Legislature did not act arbitrarily or unreasonably in 133.102(a)(1) provides that a person convicted of a enacting it.” State v. Rosseau, 396 S.W.3d 550, 557 felony offense “shall pay as a court cost, in addition (Tex.Crim.App.2013); Salinas v. State, 426 S.W.3d to all other costs,” $133. Tex. Local Gov't Code 318, 326 (Tex.App.–Houston [14th Dist.] 2014, pet. Ann. § 133.102(a)(1) (Vernon Supp.2014). The granted). The party challenging the statute “has the Local Government Code further provides that these burden to establish its unconstitutionality.” Rosseau, court costs “shall be collected and remitted to the 396 S.W.3d at 557; Salinas, 426 S.W.3d at 326. comptroller” and that the comptroller shall allocate “[T]o prevail on a facial challenge, a party must a statutorily determined percentage of the court costs establish that the statute always operates according to a list of specific accounts and funds. Id. unconstitutionally in all possible circumstances.” § 133.102(b), (e); see also Tex. Const. art. IV, § 1 Rosseau, 396 S.W.3d at 557; Salinas, 426 S.W.3d at (providing that Comptroller of Public Accounts is 326. one of six officers of state's executive department).

Among those funds is “crime stoppers assistance,” which is to receive 0.2581 percent of the [42]The Texas Constitution contains an express consolidated court costs, or, in this case, separation-of-powers provision. Tex. Const, art. II, approximately $0.34. See Tex. Local Gov't Code § 1; Ex parte Lo, 424 S.W.3d 10, 28 Ann. § 133.102(e)(2). (Tex.Crim.App.2013) (op. on reh'g). “This division ensures that power granted one branch may be exercised by only that branch, to the exclusion of *18 Texas Code of Criminal Procedure chapter 102 others,” and “therefore requires that ‘any attempt by provides specifically for the allocation of the crime one department of government to interfere with the stoppers assistance account. Tex.Code Crim. Proc. powers of another is null and void.’ ” Ex parte Lo, Ann. art. 102.013 (Vernon 2006). Specifically, 424 S.W.3d at 28 (quoting Meshell v. State, 739 article 102.013 provides: S.W.2d 246, 252 (Tex.Crim.App.1987)). The Court of Criminal Appeals has recently held: The legislature shall appropriate funds from the crime stoppers assistance account to the Criminal Justice Division of the Governor's Office. The Criminal Justice Division may use

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McAfee v. State, --- S.W.3d ---- (2015)

10 percent of the funds for the operation of the also O'Bannon v. State, 435 S.W.3d 378, 381–82 toll-free telephone service under Section (Tex.App.–Houston [14th Dist.] 2014, no pet.) 414.012, Government Code, and shall (analyzing similar complaint). distribute the remainder of the funds only to crime stoppers organizations. The Criminal Justice Division may adopt a budget and rules In both Salinas and O'Bannon, the Fourteenth Court to implement the distribution of these funds. of Appeals held that the appellant failed to satisfy his burden to show that the statute was facially invalid Id. art. 102.013(a). because he had not shown that the funds would not be used for criminal justice activities once they were distributed. See O'Bannon, 435 S.W.3d at 382; Salinas, 426 S.W.3d at 327. Here, appellant argues The Texas Government Code contains provisions that he need not provide evidence regarding how the defining and regulating crime stoppers organizations. “crime stoppers assistance” fee is distributed It defines “crime stoppers organizations” to include because the Code of Criminal Procedure provides either private or public organizations that pay that those funds are to be distributed to “the Criminal “rewards to persons who report to the organization Justice Division of the Governor's Office,” which information about criminal activity and that forward[ “may use 10 percent of the funds for the operation of ] the information to the appropriate law enforcement the toll-free [crime stoppers] telephone service” and agency.” Tex. Gov't Code Ann. § 414.001(2) “shall distribute the remainder of the funds only to (Vernon 2012). The Government Code also provides crime stoppers organizations.” See Tex.Code Crim. for a “Texas Crime Stoppers Council,” organized Proc. Ann. art. 102.013(a). He contends that these under the criminal justice division of the governor's are not judicial branch activities, but executive office, to “encourage, advise, and assist in the branch activities that are administered by the creation of crime stoppers organizations” and to executive branch of the State government. “encourage, advise, and assist crime stoppers organizations in implementing” programs, among other duties. Id. §§ 414.002(a), 414.005 (Vernon *19 A review of the statutes related to crime 2012 & Supp.2014). stoppers organizations, however, reveals that funds collected for the “crime stoppers assistance” fund are sufficiently related to the collection of evidence in B. Analysis criminal cases to constitute legitimate criminal [43]Here, appellant complains that the “crime justice activities. See O'Bannon, 435 S.W.3d at 382 stoppers fee,” included in the consolidated court (addressing similar argument regarding collection of costs assessed against him, is not actually a cost of DNA testing fee). “Crime stoppers organizations” court, but is instead a tax. He argues that delegating include either private or public organizations that the collection of this tax to the judicial branch pay “rewards to persons who report to the violates the separation of powers clause of the Texas organization information about criminal activity and Constitution by delegating a power to the judicial that forward[ ] the information to the appropriate law branch that is more appropriately attached to the enforcement agency.”Tex. Gov't Code Ann. § executive branch. Thus, he argues, the court costs 414.001(2). The “Texas Crime Stoppers Council” are facially unconstitutional. has numerous duties, including the duties to “encourage, advise, and assist in the creation of crime stoppers organizations,” to “foster the Our sister court of appeals recently addressed a detection of crime and encourage persons to report similar argument when an appellant argued that information about criminal acts,” to “promote the Local Government Code section 133.102 was process of crime stoppers organizations to forward facially unconstitutional because “the uses specified information about criminal acts to the appropriate in section 133.102(e) for the court costs collected law enforcement agencies,” to “help law under section 133.102(a)(1) include uses that are not enforcement agencies detect and combat crime by properly characterized as ‘costs of court’ ” and, increasing the flow of information to and between therefore, that section “impermissibly requires the law enforcement agencies,” and to “encourage, judicial branch to perform an executive function by advise, and assist crime stoppers organizations in collecting a tax.” Salinas, 426 S.W.3d at 325; see

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McAfee v. State, --- S.W.3d ---- (2015)

implementing” specialized programs targeting sex offenders, among other duties. Id. § 414.005.

Thus, this statutory scheme allocates resources to be expended for legitimate criminal justice purposes. See O'Bannon, 435 S.W.3d at 382 (holding that “interconnected provisions” permitted DNA Testing Fee to be redistributed through state highway fund to Department of Public Safety “for legitimate criminal justice purposes”); cf. Ex parte Lo, 424 S.W.3d at 28 (holding that separation-of-powers provision may be violated “when one branch of government assumes or is delegated a power ‘more properly attached’ to another branch” or “when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers.”). Accordingly, appellant has failed to satisfy his burden to show that the statute is facially invalid. See Rosseau, 396 S.W.3d at 557.

We overrule appellant's fourth issue.

Conclusion

We affirm the judgment of the trial court.

All Citations

--- S.W.3d ----, 2015 WL 2235122

Footnotes

1 See Tex. Penal Code Ann. § 19.02 (Vernon 2011).

2 The jury charge did not define “wrong.” The jury charge contained, in relevant part, an instruction that the jury could find appellant not guilty by reason of insanity if it found by a preponderance of the evidence that, “as a result of severe mental disease or defect, [he] did not know that his conduct was wrong.”

3 Effective April 1, 2015, the Texas Supreme Court adopted amendments to the rules of evidence. 78 Tex. B.J. 42, 42 (Tex.2015). The revisions to Rule of Evidence 503 were stylistic and do not affect the substance of the rule. We cite the old rule, as that version as in effect at the time this case was tried.

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McAfee v. State, --- S.W.3d ---- (2015)

4 Effective April 1, 2015, Rule 511 was revised to conform with Federal Rule of Evidence 502. 78 Tex. B.J. at 42. Rule of Evidence 511(a)(1) now provides: “A person upon whom these rules confer a privilege against disclosure waives the privilege if ... the person or a predecessor of the person while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter unless such disclosure is itself privileged [.]” Tex.R. Evid. 511(a)(1). Again, we cite the prior version of the rule, which was in effect at the time this case was tried.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works.