McAfee, Kenneth Cooper, PD-0667-15

Appellant Kenneth Cooper McAfee was convicted of murder and sentenced to 99 years and a $10,000 fine in Harris County.
The state proceeded on a traditional insanity defense, with expert and lay testimony regarding his mental state before, during, and after Janet McAfee’s murder.
McAfee called Charles Storer, a long-time attorney and friend, on the night of the murder seeking legal advice and discussing the case; the State challenged whether communications were protected by attorney‑client privilege.
A suppression hearing determined whether Storer’s statements were admissible under the attorney‑client privilege; the trial court ruled privilege did not apply.
The First Court of Appeals upheld admission of Storer’s statements, and the Supreme Court granted discretionary review to address waiver of the privilege and related evidentiary issues.
Additionally, the trial court and appellate courts addressed whether the court costs, including a crime stoppers fee, were constitutional.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Waiver of attorney‑client privilege	McAfee; no waiver shown by State	McAfee owned waiver; privilege not waived by disclosures	Waiver not proven; privilege protected; admission improper
Burden and scope of proving waiver	State failed to prove waiver beyond reasonable doubt	State bore burden to prove waiver by totality of circumstances	State failed to prove waiver; privilege preservation affirmed
Admission of Storer's testimony under privilege	Testimony should be suppressed	Friendship does not negate privilege; communications were confidential	Trial court abused discretion for admitting privileged communications
Definition of ‘wrong’ in insanity voir dire	Prosecution’s broad definition misstates law	Voir dire allowed broader, common understanding	Non-constitutional error; harmless under Rule 44.2(b); voir dire acceptable
Constitutionality of crime stoppers costs	Crime stoppers fee improperly a tax; violates separation of powers	Funds relate to legitimate criminal justice purposes	Costs upheld as constitutional; proper funding within framework of crime stoppers provisions

Carmona v. State, 941 S.W.2d 949 (Tex. Crim. App. 1997) (privilege held by client; waivers require client consent or disclosure evidence)
Cruz v. State, 586 S.W.2d 861 (Tex. Crim. App. 1979) (client may waive privilege; unilateral waiver by attorney not allowed)
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (burden to establish the existence of the privilege; waiver analyses)
Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994) (insanity inquiry focuses on understanding of action and wrongness)
Torres v. State, 976 S.W.2d 345 (Tex.App.—Corpus Christi 1998) (juror may consider circumstantial evidence and demeanor in insanity analysis)