William Porter v. State, 513 S.W.3d 695

In 1986 William Porter shot Gerald Oncale during an altercation at Porter's home; Porter claimed self-defense. Police initially investigated but did not charge him.
Porter’s girlfriend, Anita Fries, initially lied to police but later recanted and said she witnessed the shooting with Oncale seated on the couch.
The next day attorney Marshall Shelsy (a personal acquaintance of Porter's family) visited, conducted walk-throughs, found a bullet in the couch, removed it, told Fries to keep quiet, and kept the bullet in his files for ~25 years before discarding it.
In 2013 the sheriff’s office reopened the investigation; Shelsy was immunized and admitted before a grand jury that he removed and discarded the bullet; Porter was indicted for murder.
At trial the State sought to admit Shelsy’s testimony about recovering and secreting the bullet; Porter asserted attorney-client privilege. The trial court allowed limited testimony about Shelsy’s observation and recovery of the projectile; Porter appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Shelsy’s testimony about finding, removing, and secreting a bullet is protected by the attorney-client privilege	Porter: Shelsy learned the fact through the attorney-client relationship and Rule 503(b)(2) protects facts learned by reason of representation	State: Shelsy’s conduct was active evidence tampering, outside legal services and thus not privileged	Court: Testimony admissible—Shelsy’s acts were not within attorney-client relationship or legal services, so privilege does not apply

Carmona v. State, 947 S.W.2d 661 (Tex. Crim. App. 1997) (standard of review for privilege rulings and burden on party asserting privilege)
DuBose v. State, 915 S.W.2d 493 (Tex. Crim. App. 1996) (standard for reviewing trial-court evidentiary rulings)
McAfee v. State, 467 S.W.3d 622 (Tex. App.—Houston [1st Dist.] 2015) (privilege protects confidential communications made to facilitate legal services; party asserting privilege bears burden)
Clark v. State, 261 S.W.2d 339 (Tex. Crim. App. 1953) (attorney statements or acts to conceal crime are not within legitimate professional employment and are not privileged)
Mixon v. State, 224 S.W.3d 206 (Tex. Crim. App. 2007) (attorney-client privilege cannot shield counsel sought to assist client in committing crime or fraud)
Sanford v. State, 21 S.W.3d 337 (Tex. App.—El Paso 2000) (distinguishes disclosure of attorney-acquired facts communicated by client from attorney’s own wrongful acts)