Kenneth Cooper McAfee v. State, 2015 Tex. App. LEXIS 4788

Kenneth McAfee was convicted by a jury of murdering his wife Janet; punishment assessed at 99 years and $10,000; court also imposed $133 in consolidated court costs.
McAfee had a medical and psychiatric history (major depressive disorder, panic disorder, long-term stimulant use); lived in assisted-living; marital separation and pending divorce with Janet at time of offense.
On May 8, 2010, police responding to an alarm found Janet wounded and bleeding; she was later pronounced dead from multiple gunshot wounds; McAfee shot himself and survived.
McAfee asserted an insanity defense at trial (burden: preponderance); defense experts diagnosed psychosis/dementia/neurocognitive disorder; State expert disputed those findings and concluded McAfee was sane.
The trial court admitted testimony and a 9-1-1 recording of McAfee’s long-time friend and divorce attorney Charles Storer over McAfee’s claim of attorney-client privilege; the court found the calls were made in a social, not confidential attorney-client, context.
On appeal McAfee raised four issues: factual sufficiency of insanity verdict; impropriety of State’s voir dire definition of “wrong”; erroneous denial of motion to suppress Storer’s testimony; and constitutionality of the consolidated court costs (crime-stoppers fee).

Issue	McAfee’s Argument	State’s Argument	Held
1. Factual sufficiency of jury rejection of insanity	Evidence (experts and records) preponderates that McAfee was insane at the time of the killing	Conflicting expert opinions, evidence of post-offense consciousness (lies, concealment, requests for counsel), and history of substance abuse support sanity	Verdict affirmed; evidence did not so overwhelmingly favor insanity as to be manifestly unjust
2. Voir dire definition of “wrong”	Prosecutor improperly defined “wrong” (broadly: legal/social/moral) during voir dire, usurping jury’s role	Definition was a common understanding and similar to case law; court has broad discretion over voir dire	Any error non-constitutional and harmless; overruled
3. Admission of Storer’s testimony (attorney-client privilege)	Calls to Storer were confidential attorney-client communications and privileged	Calls were social/friend communications; Storer was not acting as criminal counsel; privilege waived or inapplicable	Trial court did not abuse discretion; testimony admissible
4. Constitutionality of consolidated court costs (crime-stoppers fee)	Crime-stoppers fee is not a court cost but a tax; collection by courts violates separation of powers	Fee funds legitimate criminal-justice activities (crime-stoppers programs) and statutory allocation is permissible	Facial challenge failed; statute not shown always unconstitutional

Matlock v. State, 392 S.W.3d 662 (Tex. Crim. App. 2013) (adopted civil factual-sufficiency standard for affirmative defenses)
Ruffin v. State, 270 S.W.3d 586 (Tex. Crim. App. 2008) ("wrong" in insanity context means illegal by societal standards)
Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994) (insanity inquiry focuses on understanding nature/quality of act and knowledge it was wrong)
Cameron v. State, 241 S.W.3d 15 (Tex. Crim. App. 2007) (scope and purpose of attorney-client privilege in criminal cases)
Fuller v. State, 363 S.W.3d 583 (Tex. Crim. App. 2012) (trial court has broad discretion over voir dire; prospective jurors’ understanding of undefined terms is proper inquiry)
Smith v. State, 297 S.W.3d 260 (Tex. Crim. App. 2009) (when charge does not define a term, jurors are presumed to attach a common understanding)