OPINION
ANN CRAWFORD McCLURE, Justice.
In this case of wide public interest bearing overtones of scandal and political intrigue, we consider whether conversations between the Chief of Staff of the El Paso Police Department and an Assistant City Attorney are protected by the attorney-client privilege. Confidential information
was leaked to the local newspaper and a television station concerning an ongoing investigation into administrative issues within the police department. Assistant Chief George DeAngelis and Deputy Chief Cerjio Martinez were considered possible suspects. A criminal investigation into the leak itself focused on misuse of official information proscribed by Section 39.06 of the Texas Penal Code. Neither DeAngelis nor Martinez was indicted for that offense. Instead, they were indicted for aggravated perjury based on inconsistencies between sworn statements to the grand jury and surreptitiously tape-recorded conversations with El Paso Assistant City Attorney, Stephanie Osbum. After indictment, DeAngelis sought suppression of all evidence obtained from Osburn based upon attorney-client privilege. Following evi-dentiary hearings, the trial court suppressed all of DeAngelis’s statements to and conversations with Osburn.
The State has filed several interlocutory appellate proceedings arising from the prosecution of DeAngelis and Martinez. This appeal was previously dismissed for want of jurisdiction based upon then-existent precedent.
The Court of Criminal Appeals reversed and remanded for consideration on the merits.
State v. DeAngelis,
53 S.W.3d 905 (Tex.App.-El Paso 2001),
rev’d,
71 S.W.3d 345 (Tex.Crim.App.2002). We now undertake that task. We have endeavored to offer a complete factual summary but large portions of the record were sealed by the trial court. We have reviewed all documents under seal but will avoid direct reference to them.
FACTUAL SUMMARY
George DeAngelis has been an officer with the El Paso Police Department for more than twenty-seven years. At the time of the events in issue, he was the Assistant Chief of Police, second in command, and Chief of Staff.
He was in charge of the Office of Regional Operations, which supervises the five regional commands. He conducted oversight of SWAT, Canine, Bomb Squad, and the Headquarters Traffic Unit. He was also the chairperson of the Shooting Review Board which reviews policy compliance by any officer who discharges a weapon either in the line of duty or off-duty. Cerjio Martinez, a deputy chief in the Departs ment, has also been indicted for perjury; his case proceeds separately and is presently before us in
State v. Martinez,
Cause No. 08-01-00212-CR.
Stephanie Osbum began employment as an Assistant City Attorney in April 1999. She described her job as representing the City of El Paso on department disciplinary matters, criminal subpoenas, and expunge-ments. She was assigned to Internal Affairs at the police department and maintained an office there as well as at City
Hall. Police officers were agents of the City who fell within the representation umbrella. Osburn dispensed legal advice to the upper echelons of the police department — captains and above. As was common practice within the City Attorney’s Office, Assistant City Attorneys routinely addressed documents to individual police officers bearing a label that the communications were privileged. Osburn thought she had major input into the decisions made by the police leadership and hoped they would act on her advice.
On or about August 27, 1999, DeAngelis met with a confidential informant and received information concerning illegal activity by Officer Luis Cortinas, who served as the personal administrative assistant to the Chief of Police, Carlos Leon. Cortinas had allegedly provided vehicle descriptions and license plate numbers of narcotics officers to individuals associated with the drug trade. On August 30, 1999, DeAngelis contacted the FBI to confirm what the informant had told him. DeAngelis was told that the Cortinas case had been closed because of his status as Leon’s assistant and the FBI did not want to damage its working relationship with the police department. DeAngelis drafted a letter memorandum to Chief Leon which he delivered the next day. In the memo, he formally requested that Cortinas be removed as the Chiefs administrative assistant and that an investigation be conducted. DeAngelis specifically asked Leon to keep the memo confidential and that Corti-nas not be made aware of it. Cortinas was reassigned on September 1, 1999, but no investigation followed.
In January 2000, DeAngelis showed Os-burn the letter memo that he had written to Chief Leon. For the next several months, Osburn and DeAngelis spoke several times a day. The calls were occasionally about work, but tended to be more personal in nature
and lasted anywhere from one minute to two hours, according to telephone records. DeAngelis would also call her at home on her personal cell phone during the evening hours. He often criticized Chief Leon in his conversations with her.
By March, DeAngelis suspected that Leon had told Cortinas about the memo. DeAngelis was approached by Assistant Chief J.R. Grijalva, who told him that rumors about a memo had been circulating and that the media was interested. He said if the letter became public, it would “take down” the mayor and the Chief. DeAngelis denied knowing anything about the memo at that point. In April, DeAn-gelis received what he considered a questionable travel request from Cortinas. Upset by the request, DeAngelis met with Leon and asked him again to initiate an investigation into Cortinas’s activities. DeAngelis asked Leon why he was so hesitant to take any action against Cortinas and Leon replied, “I owe him.” When DeAngelis persisted, Leon told him to conduct his “stupid investigation” and to assign Assistant Chief Grijalva and Deputy Chief Patrick Gailey. Once Leon authorized him to start the investigation, DeAn-gelis briefed Grijalva, Gailey, Assistant City Attorney Chris Borunda, the FBI, and Assistant Chief Richard Wiles, who was the head of Internal Affairs.
On April 13, DeAngelis lodged a formal complaint with the City concerning the administrative issues raised in his August 1999 memo as well as other serious allegations of misconduct by Chief Leon. Assistant City Attorney Chris Borunda began an investigation. DeAngelis was placed on
sporadic administrative leave but Ms contact with Osbum continued. During many of their conversations, DeAngelis talked about expecting retaliation and wanting whistleblower protection. Osbum encouraged him to use the word “wMstleblower” and told him to document any retaliatory action. DeAngelis commumcated with several private attorneys for legal advice on Ms wMstleblower claim against the City. CMef Leon was given notice and told to “cease and desist” any retaliation, but DeAngelis claimed he continued to be under police surveillance.
On May 26, a sixteen-page synopsis of the Cortinas investigation was finalized. DeAngelis arranged for copies to be delivered to Borunda and the FBI and left Ms personal copy on Ms desk in a folder. Around May 30, Osbum, DeAngelis, and Martinez had lunch together. There was a general venting by all of them concerning their dissatisfaction with CMef Leon. DeAngelis commented that he was considering retirement and that he could “go public” at that point and talk with the media.
In early June,
The El Paso Times
requested a copy of the sixteen-page Cor-tinas report. DeAngelis received a telephone call from Patrick McDonnell, a reporter, advising DeAngelis that the newspaper planned to run a story involving criminal allegations against Cor-tinas. Toward the end of the month, Borunda submitted her investigative report of DeAngelis’s formal complaint to the mayor, who publicly reprimanded CMef Leon on June 26. In their conversations with one another, Osbum, DeAngelis, and Martinez criticized the accuracy and credibility of Borunda’s investigation. DeAngelis thought that lit-tie action had been taken against CMef Leon and he was frustrated with the results, wMch he termed a “wMtewash.”
The very next day, an El Paso television station reported that it had received a sixteen-page confidential report relating to a criminal investigation of Officer Corti-nas. The report was purportedly leaked by an anonymous source within the El Paso Police Department.
The El Paso Times
printed the story on June 28. The same day, it submitted an open records request about other allegations of misconduct. Assistant CMef Richard Wiles, head of Internal Affairs, imtiated a separate investigation into the leak.
Wiles assigned Lieutenant David Norman to the investigation, and ultimately, the Texas Rangers were called in to assist. Osbum was relieved of her duties with the police department in late June,
but she did not alert DeAngelis to the fact.
On July 6 or 7, Martinez called Osbum and asked if she would be willing to talk to the media about the flaws in Borunda’s investigation. She declined and reported the request to Detective George Althoff. On August 2, Norman confronted Osburn and accused her of misusing official information. He threatened her with criminal prosecution and the loss of her job and law license. When Osbum asked what he wanted her to do, Norman presented her with an immumty agreement prepared in advance and urged her cooperation in tape recording conversations with both Martinez and DeAngelis. Osbum did not discuss these events with anyone else in the City Attorney’s office before agreeing to participate. The calls were placed from City Hall and Norman orchestrated the conversations. For purposes of the call to DeAngelis, they fabricated a story about a
new investigation of Cortinas in an effort to determine if the falsehood would trigger an open records request from the media and clearly pinpoint DeAngelis as the source.
Osburn called DeAngelis while Norman taped the conversation. She began by telling DeAngelis that she was working late, to lead him to believe that the purpose of the call was not social. She then told him that the City had just received an open records request from one of the television stations, which allowed her to segue into contacts with the media in general. DeAngelis denied releasing either the Cortinas report or the letter memo to Chief Leon. He did acknowledge that the media had called him about the report, but he didn’t know where they had obtained their information. Osburn then returned to the new Cortinas investigation:
Osburn: Oh, so apparently that PID’s been initiated so—
DeAngelis: Great. That’s great.
Osburn: — I mean I don’t know if you want to let your — your contacts at the media know anything.
DeAngelis: Yeah, I’m gonna let Patrick know.
Osburn made another attempt to bait DeAngelis in a telephone call on August 14, but she believed he had become suspicious.
In his testimony to the grand jury, DeAngelis denied speaking with anyone about contacts with the media and claimed he had not talked with Osburn since he went on vacation June 2 except for her phone call on August 14, the day before his grand jury appearance. Consequently, based on inconsistencies between the taped conversation with Osburn and his testimony to the grand jury, DeAngelis was indicted for aggravated perjury. He filed a motion to suppress all evidence obtained from Osburn based upon attorney-client privilege.
The testimony of Stephanie Osburn appears in the record by virtue of her appearance before the grand jury, her appearance at the suppression hearing, and her sworn deposition. She testified that although DeAngelis was talking to private attorneys about representation in a civil suit against the City, he still communicated with her. She emphasized that DeAn-gelis never asked her to be his personal attorney and she never represented DeAngelis in his individual capacity. Yet she admitted that she had referred to DeAngelis as her client on many occasions.
DeAngelis apparently believed her, because in one of the many letters and cards she had received from him, he told her, “I know you can’t say anything because you are my attorney.” In another note, he wrote: “I trust you and know that it’s privileged communication between attorney and client.” By the time of the suppression hearing, Osburn expressed an understanding of how DeAngelis could assume that the privilege existed and that his comments to her were made in confidence.
STANDARD OF REVIEW
The State argues that although the issue is not entirely settled, we are to review
de novo
the applicability of the
attorney-client privilege and the exclusion of evidence resulting from a violation of the privilege. In
Henderson v. State,
the Court of Criminal Appeals noted that at least one federal circuit holds that “mixed questions of law and fact, regarding the applicability of the attorney-client privilege to particular communications” must be reviewed
de novo. Cox v. Administrator U.S. Steel & Carnegie,
17 F.3d 1386, 1413 (11th Cir.),
opinion modified on other grounds,
30 F.3d 1347 (1994),
cert. denied,
513 U.S. 1110, 115 S.Ct. 900, 130 L.Ed.2d 784 (1995). It also recognized its own precedent in applying
de novo
review to mixed questions of law and fact.
Villarreal v. State,
935 S.W.2d 134, 138 n. 5 (Tex.Crim.App.1996)(plurality opinion);
id.
at 139-41 (McCormick, J. concurring);
id.
at 141-45 (Clinton, J. concurring);
id.
at 145-50 (Keller, J. concurring). With regard to motions to suppress, however, we review a trial court’s ruling for an abuse of discretion.
Villarreal,
935 S.W.2d at 138;
Brewer v. State,
932 S.W.2d 161, 166 (Tex.App.-El Paso 1996, no pet.). The trial judge is the sole and exclusive trier of facts at a suppression hearing.
Romero v. State,
800 S.W.2d 539, 543 (Tex.Crim.App. 1990);
Brewer,
932 S.W.2d at 166. Therefore, an appellate court must defer to a trial court’s determination of historical facts supported by the record, especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor.
Guzman v. State,
955 S.W.2d 85, 89 (Tex.Crim.App.1997);
Gordon v. State,
4 S.W.3d 32, 35 (Tex.App.-El Paso 1999, no pet.). Accordingly, we will defer to the trial court’s determination of historical facts, but review
de novo
the application of law to those facts.
ATTORNEY-CLIENT PRIVILEGE
DeAngelis contends that his conversations with Osburn, including the tape recordings, are protected by attorney-client privilege. Invocation 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.
Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld,
105 S.W.3d 244, 254 (Tex.App.-Houston [14th Dist.] 2003, pet. filed),
citing Mellon Serv. Co. v. Touche Ross & Co.,
17 S.W.3d 432, 437 (Tex.App.-Houston [1st Dist.] 2000, no pet.).
Formation of the Attorney-Client Relationship
The relationship may be expressly created by contract, or it may be implied from the actions of the parties.
Tanox,
105 S.W.3d at 254,
citing Sutton v. Estate of McCormick,
47 S.W.3d 179, 182 (Tex.App.-Corpus Christi 2001, no pet.);
Vinson & Elkins v. Moran,
946 S.W.2d 381, 405 (Tex.App.-Houston [14th Dist.] 1997, writ dism’d by agr.). The determination of whether there is a meeting of the minds must be based on objective standards of what the parties did and said and not on their alleged subjective states of mind.
Terrell v. State,
891 S.W.2d 307, 313 (Tex.App.-El Paso 1994, pet. ref'd). A question of fact exists when the evidence does not conclusively establish the existence of an attorney-client relationship.
Tanox,
105 S.W.3d at 254;
Sutton,
47 S.W.3d at 182;
Kanow v. Brownshadel,
691 S.W.2d 804, 805-06 (Tex.App.-Houston [1st Dist.] 1985, no writ).
Scope of the Privilege
The scope of the attorney-client privilege is defined by the rules of
evidence. Tex.R.Evid. 503. The privilege is intended to allow unrestrained communication and contact between the attorney and client in all matters in which the attorney’s professional advice or services are sought, without fear that these confidential communications will be disclosed by the attorney, voluntarily or involuntarily, in any legal proceeding.
Huie v. DeShazo,
922 S.W.2d 920, 922 (Tex.1996);
In re Toyota Motor Corp.,
94 S.W.3d 819, 822 (Tex.App.-San Antonio 2002, pet. denied). Rule 503 protects confidential communications “made for the purpose of facilitating the rendition of professional legal services to the client.” Tex.R.Evid. 503(b)(1);
Huie,
922 S.W.2d at 922;
In re ExxonMobil Corp.,
97 S.W.3d 353, 357 (Tex.App.-Houston [14th Dist.] 2003, no pet.). The privilege applies not only to legal advice, but attaches to complete communications between an attorney and the client.
In re Carbo Ceramics Inc.,
81 S.W.3d 369, 374 (Tex.App.-Houston [14th Dist.] 2002, no pet.);
GAF Corp. v. Caldwell,
839 S.W.2d 149, 151 (Tex.App.-Houston [14th Dist.] 1992, orig. proceeding). The subject matter of the information contained in the communication is irrelevant when determining whether the privilege applies.
See Marathon Oil Co. v. Moye,
893 S.W.2d 585, 589 (Tex.App.-Dallas 1994, no writ).
For a communication to be privileged, it must appear that the communication was made by a client seeking legal advice from a lawyer in her capacity as such and the communication must relate to the purpose for which the advice is sought; the proof, express or circumstantial, must indicate the client’s desire for confidence and secrecy.
Duval County Ranch Co. v. Alamo Lumber Co.,
663 S.W.2d 627, 634 (Tex.App.-Amarillo 1983, writ ref'd n.r.e.);
Ballard v. Ballard,
296 S.W.2d 811, 816 (Tex.Civ.App.-Galveston 1956, no writ). A communication is confidential if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. Tex.R.Evid. 503(b)(1). The attorney-client privilege confers upon the client the right to prevent disclosure of communications at any stage of the criminal proceedings.
Identity of the Client
Having addressed the formation of the relationship and the nature of confidential communications, we come to the pricklier issue of the role of the government lawyer and the identification of the client. A “client” is:
[A] person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from that lawyer.
Tex.R.Evid. 503(a)(1). A “representative of the client” is (A) a person having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client, or (B) any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client. Tex.R.Evid. 503(a)(2)(A), (B). The Texas Disciplinary Rules of Professional Conduct also address the issue:
Rule 1.12. Organization as a Client
(a) A lawyer employed or retained by an organization represents the entity. While the lawyer in the ordinary course of working relationships may report to, and accept direction from, an entity’s duly authorized constituents, in the situations described in paragraph (b) the lawyer shall proceed as reasonably nec
essary in the best interest of the organization without involving unreasonable risks of disrupting the organization and of revealing information relating to the representation to persons outside the organization.
(b) A lawyer representing an organization must take reasonable remedial actions whenever the lawyer learns or knows that:
(1) an officer, employee, or other person associated with the organization has committed or intends to commit a violation of a legal obligation to the organization or a violation of law which reasonably might be imputed to the organization;
(2) the violation is likely to result in substantial injury to the organization; and
(3) the violation is related to a matter within the scope of the lawyer’s representation of the organization.
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(e) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing or when explanation appears reasonably necessary to avoid misunderstanding on their part.
Tex.DisciplinaRY R.PROf’l Conduct 1.12. Comment 3 advises that when an employee of the entity communicates with the entity’s attorney in the employee’s organizational capacity, the communication is privileged. But comment 4 cautions that there are times when the entity’s interest may become adverse to that of its employee:
Clarifying the Lawyer’s Role
4. In such circumstances the lawyers should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care should be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged insofar as that individual is concerned. Whether such a warming [sic] should be given by the lawyer for the organization to any constituent individual may turn on the facts of each case.
While comment 9 acknowledges that “defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context,” it suggests a different balance may be appropriate between maintaining confidentiality and assuring that a wrongful official act is prevented inasmuch as public business is involved. TexDisciplinaRY R.PROf’l Conduct 1.12 cmt. 9. Borunda clearly understood this requirement.
We cannot say the same for Osbum.
The State contends that the recorded telephone call was personal in nature and not protected by the attorney-client privilege. We disagree. Osburn did not place the call to DeAngelis from her home. It was an orchestrated call made from her office after hours at the direction of Norman and his investigation team. To ensure the appearance of City business, Osburn and Norman wanted any caller identification device to reflect a business number rather than Osburn’s personal telephone number. Osburn was directed to tell DeAngelis the fabricated stories to encourage him to talk about the media leaks in hopes of setting him up. While Osburn vacillated in her opinion of the applicability of the privilege, by the time of the suppression hearing she believed that the attorney-client privilege protected comments made to her in confidence. DeAngelis did as well, as evidenced by his notes to her. Although he engaged civil litigators to pursue his private whistleblower cause of action, he continued to discuss with Osburn certain improprieties in the police department which he believed jeopardized its reputation. Osburn shared his negative opinions about Chief Leon and never suggested to him that these communications were anything but confidential. While City policy clearly prohibits individual representation, we cannot conclude that a violation of City policy defeats the privilege.
According the appropriate deference to the trial court’s determination of these historical facts and its unique ability to observe the credibility, demeanor and sincerity of the witnesses, we find ourselves unable to fault Judge Medrano’s conclusion that DeAngelis’s conversations with Os-burn and any fruits stemming therefrom were protected by attorney-client privilege.
CRIME-FRAUD EXCEPTION
The State next contends that DeAngelis sought Osburn’s assistance in releasing confidential information to the media thus implicating the crime-fraud exception to the attorney-client privilege:
(d) Exceptions. There is no privilege under this rule:
(1)
Furtherance of crime or fraud.
If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.
TexR.Evid. 503(d)(1). The plain language of the rule indicates that a continuing or future crime is not enough; the attorney’s services must be sought to aid in the commission of the crime.
Henderson,
962 S.W.2d at 558. The lawyer’s knowledge of the client’s purpose may enable the lawyer to prevent the commission of the prospective crime. When the threatened injury is grave, the lawyer’s interest in preventing the harm may be more compelling than the interest in preserving the confidentiality of information.
Id.
at 554-55.
In order for the exception to apply, the proponent must first establish a
prima facie
showing that a crime or fraud was ongoing or about to be committed.
Granada Corp. v. First Court of Appeals,
844 S.W.2d 223, 227 (Tex.1992)(orig.proceeding);
Volcanic Gardens Management Co., Inc. v. Paxson,
847 S.W.2d 343, 347 (Tex.App.-El Paso 1993, orig. proceeding). Whether the proponent has established a
prima facie
showing is a matter for the court to decide.
Volcanic Gardens,
847 S.W.2d at 347. The evidence must set forth sufficient proof to support a finding;
mere allegations are insufficient.
In re Monsanto Co.,
998 S.W.2d 917, 934 (Tex.App.-Waco 1999, orig. proceeding);
Cigna Corp. v. Spears,
838 S.W.2d 561, 569 (Tex.App.-San Antonio 1992, orig. proceeding). Because the State attempts to show that DeAngelis was responsible for leaking the confidential information to the media and sought Osburn’s assistance in doing so, it bears the burden of establishing that the crime-fraud exception applies.
DeAngelis has not been indicted for releasing confidential information to the media, nor have we found affirmative evidence that either he or Osburn was the source of the leaks. Although Osburn testified that DeAngelis had talked about retiring and “going public,” DeAngelis denied any discussions about releasing information to the media.
We turn now to the tape recording of the August 2 telephone conversation. When Osburn asked him directly if he had leaked the Cortinas report to the press, DeAngelis denied it. He also denied leaking the letter memo he had written to Chief Leon. Osburn was told to lie to DeAngelis and tell him that a new PID or Preliminary Investigation Document had been formulated for Cortinas. All of this was admittedly fabricated in an effort to set him up. These efforts resulted in the following exchange:
Osburn: Oh, so apparently that PID’s been initiated so—
DeAngelis: Great. That’s great.
Osburn: — I mean I don’t know if you want to let your — your contacts at the media know anything.
DeAngelis: Yeah, I’m gonna let Patrick know.
The State contends that DeAngelis sought or used Osburn’s services to further the criminal activity in question, in leaking what he knew to be confidential information to the media.
See Henderson,
962 S.W.2d at 553. DeAngelis was certainly upset with Chief Leon and he was of the opinion that Borunda’s investigation was less than thorough. Although Osburn was familiar with DeAngelis’s yearning to go public and she was involved in several of the conversations, it does not appear that her assistance was ever sought or that DeAngelis ever looked to her for advice on leaking the reports. Because a mere allegation is insufficient, the State has yet to establish a
prima facie
case. We conclude that the exception does not apply so as to pierce the privilege. We overrule the State’s sole issue for review and affirm the judgment of the trial court.