Opinion
No. 14-04-00027-CR
Memorandum Opinion on Remand filed September 30, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 969,414.
Panel consists of Justices YATES, ANDERSON, and BROWN.
MEMORANDUM OPINION ON REMAND
Appellant Danny Lee Mixon was convicted of murder and sentenced to life in prison. On original submission, appellant argued the trial court erred by (1) allowing an attorney to testify during the guilt-innocence phase of trial in violation of the attorney-client privilege and (2) overruling appellant's objections to improper jury argument during the punishment phase of trial. We affirmed appellant's conviction on November 3, 2005. Mixon v. State, 179 S.W.3d 233 (Tex.App.-Houston [14th Dist.] 2005). The Court of Criminal Appeals vacated our judgment and remanded for this court to address whether the crime-fraud exception to the attorney-client privilege applies to this case. Mixon v. State, 224 S.W.3d 206, 212 (Tex.Crim.App. 2007). On remand, we affirm.
BACKGROUND
Appellant took a hand gun from Northshore Video, the store where he worked, drove to a trailer where Connie Gomez and Dwayne Ramdhanny were finishing a meal, and knocked on the door. When Gomez and Ramdhanny opened the door, appellant fired a shot that hit Ramdhanny in the face after traveling through Gomez's hand, which was outstretched because Gomez attempted to intervene. Ramdhanny retreated into the trailer where appellant followed him and shot him several more times. Gomez ran to the bathroom, closed the door, and hid in the shower. Appellant stood at the bathroom door, fired the remaining bullets from the gun, and left the trailer. Ramdhanny's injuries were fatal, but Gomez survived.STANDARD OF REVIEW
Appellant argues that review of the applicability of the attorney-client privilege is de novo. See Henderson v. State, 962 S.W.2d 544, 551 (Tex.Crim.App. 1997). In Henderson, the Court of Criminal Appeals noted that at least one federal circuit court held 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. 1994). Because the appellant in Henderson filed a motion to suppress pursuant to article 38.23 of the Code of Criminal Procedure, the court recognized that the issue of the crime-fraud exception to the attorney-client privilege and the operation of article 38.23 of the Code of Criminal Procedure were important issues of first impression and reviewed the applicability of the attorney-client privilege de novo. Henderson, 962 S.W.2d at 551. The court noted, however, that historical fact findings are reviewed in the light most favorable to the trial court's ruling. Id. Therefore, we review the trial court's application of law to the facts de novo but will defer to the trial court's determination of historical facts supported by the record. See State v. Martinez, 116 S.W.3d 385, 391-92 (Tex.App.-El Paso 2003, no pet.).ATTORNEY-CLIENT PRIVILEGE
Appellant argues the trial court erroneously allowed an attorney, Peter Heckler, to pierce the attorney-client privilege during the guilt-innocence stage of trial by testifying that appellant asked him to conceal the murder weapon. Peter Heckler was the attorney of record for Northshore Video where appellant worked and the owner of the gun kept at the store. Heckler testified that appellant sought legal advice and possible representation following the murder. Heckler agreed to represent appellant until he discovered that his own gun might have been used in the offense. Heckler explained to appellant that if his gun were the murder weapon, he could not represent appellant. Heckler also testified that appellant wanted Heckler to dispose of the weapon used in the murder. Heckler picked up the gun from the store and ultimately turned the gun over to the authorities. Prior to Heckler's testimony before the jury, the court held a hearing outside the presence of the jury to "give some guidance to the lawyers trying the case as to what type of evidence will be admissible." At that time, appellant argued Heckler's testimony was a violation of the attorney-client privilege. The trial court requested that Heckler tell the court what appellant had asked Heckler to do with the weapon and the videotape. Heckler responded:MR. HECKLER: He kept saying, you have to help me with this. And I said with what? You know, I'm not sure I can represent you. And he goes, well, you know, there is more to it than just that. I said, are you talking about the gun? Yes, I'm talking about the gun, it's a problem, and it needs to be gone along with —
THE COURT: Who said that?
MR. HECKLER: The defendant.
THE COURT: He said the gun needs to be gone?
MR. HECKLER: Well, I don't know if that's the words he used, but the gist of the conversation was the gun was incriminating as was the videotape.
THE COURT: And what did he want you to do about that?
MR. HECKLER: Help him.
THE COURT: Do what?
MR. HECKLER: I construed that to mean get rid of it. You have to understand — my apologies to Danny, but he's not the brightest guy in the world. I think he has a little difficulty understanding the fact that I'm a lawyer first and that store out there is one of my clients. And I don't know whether he's looking at me or — I was trying to make it clear, you know, I can't be his employer and his lawyer, and I was trying to clear that up in his mind. So, we had a long conversation about that. And I was trying to, you know, impress upon him the fact that, you know, I'm an officer of the court and there are some things I can't do, and he kept saying, oh, you have to help me.
I think he may have been speaking to me in that regard, thinking of me as a person that ultimately has the decision to hire and fire and make decisions out there. And I'm trying to impress upon him, no, I'm an officer of the court and there are some things I cannot and will not do.
So, the totality of the circumstances was that it was clear to me that he was indicating the gun was a problem for him in the murder investigation and prosecution as would be the videotape.
THE COURT: I don't have any doubt that everybody agrees that it was a problem for him if it could be traced back to him. The question is: What was it about the conversation that made you convinced he wanted you to dispose of the gun and/or the videotape?
MR. HECKLER: Well, speaking in the context of what I have already said, and his limited capacity to understand what I was trying to get across, I finally broke it down to the point where I said, do you need me to get rid of the weapon and/or the videotape? And he indicated, yes, that's exactly what he wanted.
THE COURT: Okay. Did you say it in terms of, are you asking me to get rid of the videotape and the pistol, or was it in terms of you offering to do it? That's what I am trying to get from you.
MR. HECKLER: It's difficult to — well, I think, you know, my recollection of it is he clearly wanted me to get rid of the weapon, but I'm not sure about the videotape.
THE COURT: That's all I'm concerned about. Let's focus on that. And I'll ask this again. I mean, was he asking you, based on all the conversation, to get rid of it or did you offer to get rid of it and then he said, yes, that's what I want you to do? Or did he say, you need to help me, I want you to get rid of this pistol, hide it, throw it away, get rid of it?
MR. HECKLER: Well, the way I was understanding the conversation, again, based on him not being very articulate, was he wanted me to get rid of the weapon. And I finally just asked him if that's what he meant, and he indicated, yes, that's what he meant.After listening to Heckler's testimony, the trial court ruled that it would permit only that part of Heckler's testimony indicating that appellant had asked him to get rid of the gun. Before the jury, Heckler testified that while he was asking appellant about the gun, appellant "led [him] to believe that it was, in fact, the murder weapon." The trial court called the attorneys to the bench and instructed them to limit Heckler's testimony to appellant asking Heckler to dispose of the weapon. After the exchange at the bench, Heckler testified that appellant "wanted the gun not to be turned over to the police." After speaking with appellant, Heckler took the gun from the store and replaced it with a virtually identical gun. Two days later he turned the gun over to the police. Appellant contends his conversation with Heckler is protected by the attorney-client privilege. See TEX. R. EVID. 503. A client has a privilege to prevent the lawyer or lawyer's representative from disclosing any other fact that came to the knowledge of the lawyer or representative by reason of the attorney-client relationship. TEX. R. EVID. 503(b)(2). The State contends that the crime-fraud exception to the attorney-client privilege applies to Heckler's testimony. Rule 503(d)(1) provides that the attorney-client privilege does not apply if the lawyer's services were knowingly sought or obtained to further a criminal or fraudulent endeavor. Whether the exception applies turns on the client's knowledge, not the attorney's. The attorney's services must be sought or used to further the activity in question. See Henderson, 962 S.W.2d at 553. The crime-fraud exception only applies to communication concerning future acts and does not apply where a client is seeking advice relating to crimes already committed. Id. at 555 (court distinguishes between situation where the client reveals information to an attorney regarding the location of a kidnaping victim without seeking the attorney's assistance for any purpose beyond defense of the criminal charges and a situation where the client sought the attorney's help to move the victim's body). The party seeking to take advantage of the crime-fraud exception must first present a prima facie showing that a crime or fraud was ongoing or about to be committed. Granada Corp. v. Hon. First Court of Appeals, 844 S.W.2d 223, 227 (Tex. 1992); State v. DeAngelis, 116 S.W.3d 396, 406 (Tex.App.-El Paso 2003, no pet.). Whether the proponent has established a prima facie showing is a matter for the court to decide. DeAngelis, 116 S.W.3d at 406. Second, the party must show that the otherwise privileged communication relates to the crime or fraud. See, e.g., Arkla, Inc. v. Harris, 846 S.W.2d 623, 629-30 (Tex.App.-Houston [14th Dist.] 1993, orig. proceeding). Resolution of appellant's issue rests on whether he was seeking representation for a past crime, the murder, or seeking help to commit a future crime, the destruction of evidence. To the extent that appellant's statements involve past activity, the attorney-client privilege requires that the attorney maintain confidentiality. Henderson, 962 S.W.2d at 555. To the extent that an ongoing crime is continuing, or a future crime is being contemplated, the circumstances require disclosure to prevent the crime from continuing into the future. Id. In Clark v. State, the Court of Criminal Appeals determined that the crime-fraud exception applies to "one who, having committed a crime, seeks or takes counsel as to how he shall escape arrest and punishment, such as advice regarding the destruction or disposition of the murder weapon or of the body following a murder." 261 S.W.2d 339, 347 (Tex.Crim.App. 1953). In Clark, the court held that the crime-fraud exception included seeking and obtaining advice concerning the destruction of evidence as opposed to an attorney's mere knowledge of a continuing or future crime. Id. In Henderson, the court, although not confronted specifically with this issue, stated "[a] different situation would exist" if the attorney had attempted to erase evidence or if the client had sought the attorney's help in doing so. Henderson, 962 S.W.2d at 553. In this case, appellant sought representation from Heckler and requested that Heckler dispose of the weapon used in the murder. Appellant argues that after he informed Heckler about potentially incriminating evidence against him, it was Heckler who first suggested getting rid of the weapon and the videotape. The record reflects that the trial court focused on determining who initiated the idea of disposing of the weapon. The trial court determined that appellant initiated the issue of disposing of the weapon, and ruled the communication was not privileged. On this determination of historical fact, we must defer to the trial court's decision. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). The record reflects that appellant sought advice from Heckler about the commission of a future crime, not merely representation on a past crime. Therefore, the State met the requirements of the crime-fraud exception to the attorney-client privilege, and Heckler's testimony was admissible. Appellant's issue on remand is overruled. The judgment of the trial court is affirmed.