Burnett v. State

offense, here, as greater (Tex.Cr.App.1979). statu- tory mode of committing Thomas, offense the appel- lesser In we held that where charge any limits on the offense. lesser attempted lant had been of convicted mur- simply, Put the contention is that if the der, any in the charge error on lesser alleges murder, 19.02(a)(1) indictment included of assault did aggravated offense charge 19.02(a)(3) produces a fatal not constitute Id. at fundamental error. compare variance. See and Colbert DeRusse, Similarly, supra, 708-709. State, 615 (Tex.Cr.App.1981) S.W.2d 754 court refused to reverse a for conviction (Indictment for murder under 19.- Section despite appellant’s argument murder 02(a)(1); voluntary conviction for man- injury a child was not lesser reversed where on volun- slaughter charge murder, included offense and thus should tary encompassed both manslaughter 19.- charged. not have been Id. at 233. The murder, 02(a)(1) as alleged, 19.02(a)(2) here,11 logic same applies appellant’s murder, alleged). not contentions are overruled.

We need not Finding decide these issues calling no error12 for reversal however, here, because appellant conviction, was con deny we mo- capital murder, not victed murder. rehearing. As tion State’s motion for observes, once the jury the State rehearing granted, previous convicted our order of capital murder, appellant of having aside, been is set reversal trial court’s charged offense, properly to that it had judgment is affirmed.

no occasion consider whether

might guilty felony murder. We find support no assertion that “having directed, read the entire charge, as jury not a lay avoid opinion that

all theories of murder mentioned subject were

charge to their consideration on the issue ‘felony’ murder or capital above, murder.” As indicated May Linda BURNETT charge specifically required that the jury find intended to kill Ward Texas, Appellee. STATE of they could capital before convict him of Moreover, murder. if the jury acted “as No. 65324. directed,” presume did, as we they they Texas, Appeals of Criminal Court stopped finding after appellant guilty of En Banc. murder, capital because did not have a doubt that reasonable would require them Oct. 1982. further. consider Jan. Rehearing Denied 1983. view, short, any our error in the charge of a submission under Section 19.-

02(a)(3) not reversible in light Instead, verdict. we jury’s find that this governed by case is Thomas v. 707 (Tex.Cr.App.1979) and DeRusse felony tempt” charge, arguing 11. We are aware both Thomas De- error, allege claims Russe involved of fundamental not the indictment did “at- that tempt” timely while in this case ob- and that the evidence did not raise the charge. Nevertheless, jection to the we do reject for the same issue. We contention ' error, any, if above, reversible. deem given note word reasons portion “attempt” appear in does not discussed, grounds just charge In the error murder. objects to the word lant also use “at- Hawthorn, court appointed C. Joseph Beaumont, for only, appellant. appeal McGrath, Atty., Dist. and John James S. DeWitt, Beaumont, Atty., Asst. Dist. R. Huttash, Austin, Atty., Robert State’s the State.

OPINION CLINTON, Judge. con- appeal1 from a

This an automatic murder2 in which viction

assessed is death. punishment Code, 19.03, provides Penal § V.T.C.A. 37.071(f), Article V.A.C.C.P.

1. See part relevant this case: sufficiency assisting evidence is and, challenged, agreed because of her defense. All preparation are unneces- fifth communications to be made would be sary disposition to our error, the facts confidential. constituting ground need not recited. con- We are

offense 14, 1978, morning of November On the to reverse. strained law offices Boulch arrived Howell’s through interview took place where the error, By ground her fifth day. Boulch testified he first conducted a by admitting the trial court erred contends building” appel- interview with “rapport tape recorded conversation between her lant, she related what she could in which Boulch, and James Michael a hypnotist recall offense.5 about attorneys, her over objection hired her spent to how much time was in conflicts as such admission was in violation of endeavor, when tape recorder was this 38.10, privilege and attorney-client Article started, exactly who was stopped VA.C.C.P.3 when;6 plainly, attorney but Erw- present through entire present was inter- Though much of the testimony adduced appellant, view between Boulch and con- conflicts, this issue a few to upon things, hypnosis, ducted while latter was under advert, we now are estab- clearly in participated questioning. and also Appellant attorneys lished. hired Bill Ho- that, as agree prepared All also Boulch to Erwing and Helmutt to represent well depart, by Erwing he was asked or Howell the defense in of this cause on tape. or about to leave the 15,1978. Thereafter, Clark, Joe an October Howell, According Erwing to investigator employ of Howell and lant, explained brought Boulch that he had Erwing approached James Michael Boulch tape tape a reel to recorder order to reel hypnotizing appellant. about Clark ex- seven hour interview on a the six or slow in- plained attorneys were speed; interruptions this had avoided in a terested interview in order to attorneys taping. agreed they only client, memory give refresh to equipment had cassette and would be un- better details as to the them circumstances large able use the reel. Boulch told them and, the offense specifically, to see if she he the interview on a cas- would re-record recall if there had been witnesses it over to Howell and sette and turn them. scene. understanding it was their Erwing testified give would also at that time

that Boulch All witnesses4 testified it their original. great Boulch was in a them the understandings from beginning, Howell and allowed him hurry, Erwing so interview tape. Boulch’s to leave with during “(a) person that relation- A client existence of commits an offense if he [in- tentionally knowingly ship, disclose other fact which came causes the death nor attorney by knowledge 19.02(a)(1) under Section of such reason individual] relationship.” this code and: of such being Erwing and 4. Those witnesses (2) intentionally person commits Boulch, and, course, Howell, May Linda Bur- committing at- in the course nett. , tempting kidnapping....” to commit explained “rapport purpose of 5. Boulch 38.10, comparison provides: building 3.Article was to offer V.A.C.C.P. session” without, appellant’s memory then between persons, except “All other those enumerat- with, hypnosis. 38.06, 38.101, 38.11, the aid ed in Articles what- may relationship ever be the between the witness, competent defendant and are to tes- Attorneys Erwing, Howell and tify, except attorney that an at law varying shall present combinations Boulch were disclose a communication made his to him couple during first of hours. Privilege testified he was not in a I. The hurry Boulch already Erwing and had told Howell and In Texas com privilege as to tape original would be his. attorney munications between and client “persons extends to who are the media of agree Erwing All nevertheless that called between him and the communication couple within next days solely Boulch client,” 671, Witnesses, 106; 61 Tex.Jur.2d § inquire as whether the safe. Smith, (Tex.Civ. Morton v. S.W. Further, when Joe Clark went Boulch’s App.1898). Since at least 1885 the days few later office a re-record the held to include has been “a witness or cassette, aon he interview also asked for acted with the friend who tape. Boulch original explained client,” Rosebud 50 Tex.Cr.R. origi- have to keep Clark that (1906), following Hernan 98 S.W. nal. 134, 152-154, Tex.App. dez November The record establishes Am.Rep. (Ct.App.1885).8 29, 1978, Boulch served writ was with a of us would have conclude the State ordering appearance his before attachment contained on the tape communications are County Jury Grand the Jefferson privileged, pointing to con- suggestions his time day, production and at that of next the “purpose” in the record that of tained containing Boulch’s interview with tape ap- was than the interview to assist conducted November preparation in of her pellant’s thereafter a new grand jury returned in- argues we defer defense. State should against appellant. dictment court’s determination since the to trial trial, sought At the State to introduce a suggestions raise an issue of mentioned as tape State’s Exhibit No. portion regardless fact. But hearing conducted outside the 126.7 In the Boulch with asserted State session testified she jury’s presence, fact, a re- the function of such after the not have submitted the interview pretrial with an accused is interview corded that, understanding Boulch but for her with And neither of the purposes self-evident. attorneys, of her Boulch was con- agent as have a joined the State to fact asserted the same terms of confidentiali- strained inconsistent with function of issue is they. as She further testified she ty testing hypno- the recall of given anyone permission to never dis- had sis. any part otherwise disclose seminate or lawyers Whatever 14 conversation with Boulch. her November intro arranged, mind when session appellant given permission Neither had trial ducing its fruits in evidence at transcript tape. be made from the written a Hypnotic idea. hardly been feasible have the attorney-client privilege claimed as She at generally is not admissible the entire conversation. trial, Commonwealth, Greenfield v. criminal 710, (1974), 204 414 court nevertheless admitted the and trial 214 Va. S.E.2d Annotation, 442, portion of the into 92 ALR3d and tape evi- related “pre-hypnotic” knowledge of charged with that counsel is dence. plea personal “rapport building,” only decisions: his portion fronts three was the 7. That jury prehypnotic charge, be tried and interview. whether testify in his own behalf. See view proposi- 1969, 8. And axiomatic constitutional as a United Justice when of the Chief facing charges felony respec are Judge, “defendants tion that he discussed the States Circuit competent assistance of entitled to effective and counsel at 5 of the accused tive roles counsel,” Richardson, 759, 2162; McMann v. 397 U.S. 2161, Sapata v. CrL 1449, 771, 1441, (1970), 25 763 King L.Ed.2d 90 S.Ct. 770, see practical very consideration 501, (Tex.Cr.App. is the n. 29 lawyer progress controls criminal defense Texas, 1982); Rules and Code State Bar of employment including of investi- (1972). Responsibility, 7-7 case — EC of Professional agents gators the client con- or other —while Richardson, law. McMann v. supra, ty See hypnotist the like —but when done, 397 U.S. S.Ct. at 1449. From its all the tape recording, is said and as Hurd, reading 86 N.J. deeds, notes, vouchers, documents and (1981), A.2d State informs us that client, papers of property acceptable practice prior hypnosis to actual because, although lant.10 so This is subject a recitation features of a “agent” acting clear Boulch was of her account of the detailed facts as are counsel, unique services rendered recalled, exclusion all but hypnotist and Therefore, of appellant.11 were on behalf session, subject from the making a re- extended to attorney-client cording of it. Boulch, the “pre-hypnotic” interview with tape recording People of it. it appears Because from the facts Goldbach, Cal.App.3d Cal.Rptr. the hypnotist hired by defense counsel (1972).12 followed substantially accepted here recording compelled Boulch was practice, attorneys no doubt an subpoena by grand jury produce ticipated that what the “pre- State calls the obviously incriminatory appellant. Had interview,” hypnotic place would take the prehypnotic interview been held and recorded. preceded be Since that interview initiative, on her own rather recorded than dialogue between Boulch hypnosis, not, being arranged attorneys, ques- therefore, inflicted with tion would whether the tape recording frailties revealed evidence.9 Thus, parties privileged offer her hands would from com- various characteriza tape recording production by of the the pelled safeguards tions of the interview the I, went on before that actual hypnosis Fifth Amendment and of Article 10 of § —work counsel, of defense product personal proper- Rights against our Bill of selfincrimina- agree deeds, experts hypnotic vouchers, “Most papers, 9. that all evidence is the and other docu- person hypnosis a client, because unreliable under can posses- into the ments of his come statements, manufacture or invent false attorney [cit acting sion of the while he is for his ”* ing * * person A a authorities] professional capacity. client in a subject heightened suggestibil trance is also McCormick, Evidence, ity. Law of 208 § at dissenting opinion Wigmore 11. The cites on 1972],” 510 ed. Green field v. [2nd Common Evidence, 2301, meaning but it turns the § wealth, supra, ALR3d 92 at 439. See also Peo Thus, actually what the treatise states. the ple 18, Shirley, Cal.Rptr. 243, v. 31 Cal.3d 181 privilege “pro- dissent have it that the (Cal.Sup.Ct.1982) 641 P.2d 775 in which it was attorney’s agents to the tects communications “Beyond any observed: doubt ... the indispensable to who are the communication present hypnosis time the use of to restore the attorney client,” Wig- and whereas between the memory potential generally aof witness is not agents says, more “The assistance of these be- accepted by as reliable the relevant scientific ing indispensable to his work and the commu- community.” being necessarily client nications of the often Thus, Disciplinary 2-110(A)(2) 10. Rule by attorney directs by committed to them the the lawyer employment who withdraws from himself, privilege must include all the client papers property deliver “to the client all and attorney’s persons agents.” as act who entitled;” which the client is Ethical Considera supplied throughout by (All emphasis is contemplates lawyer that tion 4-6 who termi opinion unless otherwise indi- writer of “might practice provide per nates his cated.) papers of the sonal client to be returned to possession, however, in his him.” While practicing privilege attaches to com 12. The confidential lawyer passive has a common law by psychia an accused to a munications made papers property client, and other lien serving trist as consultant to defense counsel. may but he to foreclose his lien since sell it Texas, the civil side even statement On only right property extends to the to retain adjuster by person to a for his claims paid. until debt the client is Thomson v. company, meant be delivered to insurance Co., 301, Hardware 156 S.W. 303 Findlater (Tex.Civ.App. Austin, 1913) privileged. Baggerly, attorney, its Gass on certified — 426, (Tex.Civ.App. 831, question, 109 Tex. — Dallas S.W. 1960). (1918), quoting approvingly from Mechem on attorney Agency: general upon has lien “An (Tex. placed If she thereafter record- Cruz tion.13 in the hands of her it ing attorneys, is Cr.App.1979), Judge Dally, speaking for a required could be produce whether Court, reasoned thus: unanimous States, supra, it. Fisher United U.S. at “It is clear from the of Arti- language Here, however, 96 S.Ct. at 1577.14 the privilege protected cle 38.10 that in the interview with Boulch statements the client cannot personal made as a communication for her at- were solely by attorney. appli- waived torneys, produced, and as such “is not to be of that view to this case is consist- cation it was made whether client word privi- with the chief ent writing,” op. or by Wigmore, mouth lege, promotion which is the of communi- cit., 594: supra, p. a docu- § “Since client between unre- cation itself a which is communication is ment fear these confidences strained privilege, within test is * * * later be revealed. Nor can it may came into first existence document appellant by signing be said attorney.” a communication to part given police, it was to the after statement inescapable re- conclusion is vitally impor- waived a so protected from or- cording production this case. will not tant to him in Waiver by grand jury subpoena directed to dered alone, act and this ‘lightly inferred’ him as at- agent for her Boulch —made at the of attor- behest done Id., torneys. at 595. Hill, intention,, show fails to either ney of the Privilege II. Waiver rights to waive his or a “perfectly The law is plain nature awareness of the significant client-attorney privilege], waiver [of his conduct.” significance belongs privilege, solely to the like with agree We cannot therefore client, Wig- to the attorney.” and not “disclo attorneys’ the defense (McNaughton Revision) more § investigators to two sure” client ... is the who is the holder “Since sugges there is no privilege;15 waived power his, it is privilege, to waive before us that this was the record alone, act tion agent or his attorney Burnett, May their by Linda authorized authority, exercise this may appellant Even if had authorized E. Cleary, McCormick’s Handbook client. power.” 1972). tape investigator, the an (2d Law Evidence 194 of to the of ed. the disclosure of Salmon, States, 391, tape Lee an the David investi- over to See Fisher v. United 425 U.S. 13. 1569, (1976): is and gator, 48 L.Ed.2d “It it could be tested tran- S.Ct. so deleted, however, applies Fifth the Amendment ... is the fact clear only isWhat scribed. compelled make privilege the accused had after the been when this occurred incrimina- production testimonial communication that forced of the violated Boulch’s id., 408, (original ting,” 96 S.Ct. thus, at at 1579 grand jury; origi- the original the before “private papers” holding emphasis), as and the prosecu- possession tape of the the was in nal Boyd v. United States, 616, 116 U.S. 634- of suppression during the And at that time. tors 534-535, 524, 635, (1886); 29 L.Ed. 746 6 S.Ct. agreed hearing, defense the trial appellant on whether would bear repeated pro- refusal to State’s that the counsel tape compelled produce recording. the Fish- request, tape the defense’s had duce er v. United States, 414, supra, U.S. at 96 S.Ct. discovery of his order. violation in been 1582. at then, only way Clearly for the defense to tape, of was to have content determine Wigmore excerpted The rule is from 8 14. copy vj'z: expert cassette transcribe Revision) p. (McNaughton § “It so, asked do as “man- all follows, then, described that when the client himself quality” “poor as to be unin- production gled” and privileged of such from telligible document, party to an untrained ear. law as a at common ... either self-incrimination, investigator is Joe exempt referenced attor- from The or as assisting Clark, having plainly ney possession had been counsel of the document is not who produce.” (original emphasis) appellant’s from be- preparing defense bound in ginning. points to the fact that The dissent copy turning Erwing his of cassette admitted it still would have privileged. They Phillips been front screen door. held Gold son, A P Co., family (Mr. stein v. Great & Tea Mrs. their Phillips, So.2d 253 and at (Fla.App.1960). child) gunpoint, This is wife and ordered them privi because “the car, lege all and persons pre-dug must include into the son’s drove to who act as agents.” Appellant shot and killed the adult attorney’s grave. Wigmore, supra, at family Dugas members of the and shot and 2301. The extends to communi § baby. Appellant Dugas killed the and then cations between the lawyer and “one em weapons and used disposed materials lawyer ployed lawyer assist in grave. Dugas and covered the returned to professional legal the rendition of services.” day car the next and it. burned Uniform Rule Evidence 502. 3,1978, Joe July Dugas On told his broth- Accordingly, privi- claim he Richard that five people; er killed before trial lege good court was and day thought the next Joe told he Richard valid, judgment of conviction must murder, perfect had committed and re- be reversed and cause remanded. and lated the details the contrived alibi. It is so ordered. Richard Dugas On told the police story related to him Vidor Joe. DALLY, Judge, dissenting. Appellant days was arrested three later. prepared I the following opinion which an attorney soon retained but She then rejected by the I now majority. offer released him and hired Bill Ho- my it to serve ground dissent. Each Erwing. well and Helmutt examined, error has been I and believe the 14, 1978, November On conviction should be affirmed. attorneys met with James Michael her in ten grounds error Boulch, of this hypnotist. asserts that the trial court erred: over- meeting hypnotize appellant was to ruling venue, her motion for change of hypnosis have her her in- describe overruling her challenge prospective of a volvement in the murders. A pre-hypnotic admitting a juror, by tape recording evi- hypnosis session were both interview and dence, by erroneously charging recording tape tape recorded. jury. Each of the appellant’s grounds of pre-hynotic interview was admitted in evi- error should be overruled the judgment admission of the dence and the trial affirmed. subject is the several of sufficiency of the evidence to sustain of error. grounds however, the conviction is not challenged; says the trial court abused summary brief help the facts will failing grant its discretion in motion understanding discussion the grounds venue change for a in which she of error. she fair trial get could not because of Dugas coverage Joe agreed May extensive media crimes. help of 1978 to each Dugas’ judge other kill in- The evidence heard the trial on (Bishop Phillips change laws Neil Esther Viola motion for a of ven- appellant’s and appellant’s State, Phillips) ue, and former husband which was controverted conflict; Miller). (Hubert Together they planned a this evidence raised an was in and trip prepared alibi for the mur- trial in beach issue Dugas’ County impar- in-laws would be fair and securing necessary der of Jefferson against and materials The weapons digging and tial. issue decided appellant judge, in which the would be when trial as the trier large grave bodies issue, 1,1978, and overruled the motion appellant buried. On Du- of facts on site, prearranged change his car to a of venue. The role of this Court gas drove for they ruling left his car and her car to then is to review court’s to deter- where drove and was an abuse of discre- Phillips’ Appellant Dugas home. mine whether there State, through tion, v. 596 875 by cutting entered the home Barefoot S.W.2d 772 State, The

(Tex.Cr.App.1980); Byrd Von v. 569 trial court did not abuse its discretion (Tex.Cr.App.1978); 883 Freeman v. S.W.2d overruling change in the motion for of ven- State, 287 (Tex.Cr.App.1977), 556 S.W.2d and the record refusal ue shows and review record determine whether deprive of venue grant change did not a fair appellant impartial received impartial a fair and trial. appellant of Maxwell, v. Sheppard 333, trial. 384 U.S. argues that appellant venireman 1507, 16 (1966); L.Ed.2d 600 86 S.Ct. Estes Hensley’s responses Earl Howard voir dire 532, 1628, Texas, 381 U.S. 85 v. S.Ct. 14 impos show that he unable to consider (1965); Louisiana, 543 Rideau v. L.Ed.2d any punishment except the death 1417, 83 10 663 373 U.S. S.Ct. L.Ed.2d for that he penalty Dowd, v. (1963); Irvin U.S. 81 S.Ct. have been excused for cause. The should (1961). L.Ed.2d on peremptory exercised a strike County Jefferson had a population of Hensley challenge after her for venireman 264,283 113,- there a jury pool After cause was overruled. she exhausted hearing the change on of venue challenges request and her peremptory months after the was seven commission of peremptory strikes was de for additional coverage offense. There was extensive nied, accept she was forced to alleges she media; of the murders in in her. jurors objectionable who were two County top news stories con- Jefferson preserved error was for review. crime were the accounts of cerned State, (Tex.Cr. 575 S.W.2d 543 Cuevas v. investigation by murders law these State, Hernandez v. 563 S.W.2d App.1978); officers. media accounts enforcement State, (Tex.Cr.App.1978); Wolfe v. objective, accounts, to be factual appear 62, 178 274 (1944). Tex.Cr.R. overtones. editorial without argues venireman A in number witnesses testified Hensley have been excluded for should opinion the could not obtain their V.A.C.C.P., 35.16(c)(2), Art. cause under in impartial trial Jefferson Coun- a fair provides pertinent part: which however, a testi- number witnesses ty; “(c) challenge may for cause A opinion in their fied any following for by the defense a fair and trial impartial obtain reasons: County. judge The trial in over- Jefferson “(1) .... change motion ruling would “(2) prejudice consider the he a bias or venue stated That has during jury voir dire applicable of the law question against ap- change of venue if order which the defense is entitled upon case necessary. to some peared either as defense rely, the de- the offense phase of Many jurors and all but one prospective as a being prosecuted fendant jurors who served heard read punish- or of the thereof mitigation case, jurors but all of the selected about [Emphasis supplied.] ment therefor.” could be fair and testified to serve solely impartial and would render verdict tried A entitled defendant presented court. the evidence range in the full believe jurors who State, v. Woodkins punishment. trial, Although many people attended the (Tex.Cr.App.1976); Pierce judge that the trial exer- record reflects people control of the proper cised supra; Smith seats in the court- Cuevas When the courtroom. a ve- (Tex.Cr.App.1977). When filled, judge trial would not were room responses dire show that voir court- nireman’s to stand in the people allow that is the strong convictions death seat- holds special provisions for He room. a he would consider for only punishment appellant’s family who ing members murder, capital of the defend- guilty person at trial. in attendance were for challenge ant’s cause a granted you, juror, you should whether Could Q. State, punishment the trial court. heard evidence at the supra; Smith v. trial, State, any of or hear phase didn’t supra. Pierce v. Defendant’s chal- at punishment phase of evidence lenge prospective juror for cause who way it is—if the trial —whichever imprisonment states he would consider life had not felt like the State you for punishment capital as a only if you beyond a reasonable proved to shows the evidence defendant to be did it de- that Defendant doubt similarly insane should be granted by the would a ‘No’ liberately, you write supra. court. Cuevas answer? The appellant contends that venireman Yes, sir, I “A. would. dire Hensley’s voir reveals examination that “Q. that ‘No’ answer Knowing writing he did not believe in range the full to be would cause Defendant because he punishment was unable to con- a punishment of life? assessed any penalty sider but death for defendant Yes, “A. sir. capital murder, urges convicted that “Q. you you If that after found believed reversal is therefore required under Cuevas Capital any guilty Defendant supra; Smith v. supra, and you ... if believed that the Murder State, supra. Pierce v. prove had failed to State carefully After reviewing whole of doubt, a reasonable you beyond Hensley’s venireman examination, voir dire Question Two, answer you would I do not find he indicated the type of ‘No’? firm belief that death was the only appro- Yes, I sir, “A. would. priate punishment capital murder which prospective jurors Smith, made the Cue- So, “Q. all I that’s want to be sure of is vas, and unacceptable. Pierce Venireman will you follow the evidence Hensley’s responses are ambiguous, contra- your verdict on the evi- and base dictory, and confused. During the defense you the answer dence. If believe attorney’s Hensley, examination of he stat- evidence, be ‘Yes’ from the should ed that he would be compelled to assess it guilt came from the penalty of death if he found the defendant or the punishment you innocence guilty murder. When asked if he answer ‘Yes’? could conceive of any circumstances under Yes, “A. sir. which he would assess a sentence of life “Q. ‘No’, you If believe answer imprisonment, he first replied that he did was, whatever the if then know, and then replied, Hensley “No.” ‘No’, the answer was you believed that time stated that he could not would follow the evidence and you conveive of circumstances ‘No’, question, answer the he would assess a imprison- sentence of life not? correct or ment for a conviction of capital murder. “A. I think I would.” then challenged the venire- The trial denied the challenge cause, man for and the court allowed the cause, but allowed the defense question to further the venireman as examine venireman: further ruling follows before challenges: on the “Q. juror ... You as a “Q. Now, my question you you is: If phase hearing, punishment guilty found Defendant Murder assess a life possibly sentence even during the kidnapping course of a found her though you guilty Cap- a burglary you assume found —Let’s ital Murder? guilty capital mur- person mean, Yes, sir, I capa- “A. could. I I’m der. it, doing say ble but I I didn’t Yes, “A. sir. it. would do independent evi When there is sufficient say you really “Q. Right. you Would hearsay a conspiracy, to establish dence willingness to do it? don’t have the are which co-conspirator statements willing- with problem you, Is that a object the time the prior to made capability? ness rather than completed are admissible. conspiracy Repeat question. “A. State, (Tex.Cr.App. May 618 S.W.2d 333 “Q. say, it be fair for me to Mr. Would 1981); Denney v. 558 S.W.2d you got have the kind Hensley, that They are admissible (Tex.Cr.App.1977). this situation with feelings about made after the murder was though even Burnett, if find you did Mrs. May supra. committed. juror with along as a guilty, instant case evidence in the Independent Murder, jurors, Capital you other to establish the existence sufficient quite give her life im- not want to appellant between conspiracy of a that be more prisonment? Would Neel es- testimony of witness Dugas. words, position on it? your Dugas and Joe tablished couldn’t mentally, you but you (Neel’s) assistance in solicited his together heart; would that be fair your The existence and nature of murders. say? conspiracy was also established Yes, “A. sir. recording appellant’s pre-hypnotic was admitted in evidence. which interview however, argues, Briefly, Hensley, range Mr. on “Q. Dugas made to Richard were statements you any- can consider punishment, terminated conspiracy had after made life probation impris- from where were therefore inadmissible Murder? Can just plain for onment finally conspiracy “A is not hearsay. range punish- you consider done everything until has been terminated plain for Mur- punishment ment — be done contemplated to that was der? Robins 134 Tex. conspirators.” Yes, “A. sir. (1938). Cr.R. consider under “Q. right. you All Can case not termi- conspiracy punish- the same any circumstances completion of the murder of on nated Capi- imprisonment of life ment family. appel- The murder of the Phillips Murder, circumstanc- any tal alibi trip and a beach former husband lant’s es? planned by explicitly were Also, Yes, sir, Dugas. disposal it.” I think I could consider Joe “A. Phillips murdering used in weapons Reviewing Hensley’s voir dire examina- conspir- integral part an family was whole, it cannot be concluded that as a tion to Richard Dugas’ statements acy. Joe overruling appel- court erred the trial there was made before were of venireman challenge for cause lant’s either aban- conspirators had to show responses voir do not Hensley. His dire to kill plan attempted doned consider the full inability indicate alibi trip The beach former husband. lant’s murder. range punishment told, after his Dugas and Joe being was still be overruled. ground of error should This call to through telephone July on arrest Next, asserts that the trial re- instructed his brothers to mother objec- over her by admitting, erred including weapons from his house move Dugas Joe tion, the statements made .45 used pistol knife and a caliber K-bar [as 4 because these Dugas July family Phillips Richard when the bludgeon] Dugas Richard hearsay. conspiracy were and killed. kidnapped statements Dugas the statements when made to relate Joe permitted not terminated Richard on to his brother Dugas implicated Joe to him statements and 4th. 3rd appellant in murders.

775 appellant 4th, Dugas’ insists furtherance of being conspir- Joe state- the to Richard ments were not admissible be- acy hearsay was not inadmissible but was they were not made in cause furtherance in evidence. properly admitted conspiracy. There authority is divided In five error the grounds admissibility of co-conspirator’s on the a tape recording pre- declares that of her statement it must the fur- be in was interview erroneously admit- of the only therance related conspiracy She urges tape ted in evidence. conspiracy. to the See Federal Rules of recording erroneously was admitted be- Evidence, 801; Rule Model of Evi- Code predicate proper cause: a for its admission dence, 63(9). Rule generally rule stat- laid, its admission was not violated the at- the acts ed is: and declarations of co-con- privilege, its torney-client admission violat- must spirator, occur during conspiracy, product work an It is ed doctrine. in furtherance conspiracy. and be of the tape urged in- recording was rule This is recited in earlier especially it because had been admissible altered and jurisdiction. in this See, e.g. cases McKen it made as a because was result of State, ineffec- zie 32 v. Tex.Cr.R. 25 S.W. 426 tive assistance counsel. State, Elliot 534, 15 v. (1894); 111 Tex.Cr.R. (1929); 648 State, and v. S.W.2d Morphey State, v. In Edwards 731 S.W.2d Tex.Cr.R. (1932). S.W.2d 1099 be (Tex.Cr.App.1977), requirements said to However, later cases hold that the state- lay a necessary proper foundation for only need ment related to conspiracy. sound recording of a in a criminal admission Delgado (Tex. See out. Those requirements trial were set are: Cr.App.1977); White v. that the (1) showing recording was device Morgan taking showing capable testimony, (2) State, 519 S.W.2d 449 (Tex.Cr.App.1975). that the of the device operator compe- was However, as the record, facts appear in tent, (3) authenticity of the establishment here decision need not reconcile these (4) of the recording, a show- and correctness differences, since the conversations were changes, additions, or deletions in furtherance of the conspiracy. made, (5) a showing have not been The .22 caliber rifle used to kill the Phil preservation manner of record- family was a

lips weapon Joe Dugas (6) speakers, identification ing, had borrowed from his brother Richard. (7) showing testimony elicited July 3rd he conversation Joe said had voluntarily was made without kind five people; killed he had dismantled inducement. and thrown the pieces rifle so he away paid that he testified had listened Boulch for the Richard rifle. $40 This conversation accurately recording and found it tape transaction and this were unquestionably in interview as he remembered presented furtherance conspiracy and admissi requirements first three are Helms v. it. Thus (Tex. ble. Denny testimony Boulch’s establishes Cr.App.1973); State, supra. satisfied. authenticity voluntary of the tape. The July 4th Richard, In his conversation with interview can nature of the be inferred woman, name, Joe said whom he did not testimony; there is no indication from helped him Phillips had murder the family. was induced During this conversation Dugas Joe ex- against participate her will in the inter- the beach alibi he plained had Blanchard, investigator view. Calise This rendering contrived. of the alibi to County Attorney’s the Jefferson District Dugas Richard made in furtherance of Office, testified listened to the conspiracy. It necessary to the shortly subpoenaed after it was shortly concealment the crime that Richard Du- evidence; it offered in aware of the before was crime the alibi gas and of occasions. Although “in case the same on both con- that Joe would tell asks.” The anyone testimony conversation of troverting experts was of- fered, 49 L.Ed.2d 1191. testimony Boulch’s and Blanchard’s 96 S.Ct. U.S. tape However, established the fact that together departs the client from when tampered advice, not been with and that it had privi seeking legal properly preserved possession while in him, been protect and circumstances lege will testimony The of Boulch of the State. the is that communication which indicate attorneys established the identi- appellant’s negate privilege. will the not confidential speakers appellant the as the ty of Ballard, (Tex.Civ. 296 S.W.2d 811 Ballard judge The trial correctly ruled Boulch. 1956); Johnson v. App. Galveston, — proper predicate had been laid. (1915). S.W. 76 Tex.Cr.R. contends that the appellant admis- mo- appellant’s hearing pretrial on her At of the tape into evidence recorded con- sion a fact suppress tape recording, to tion appellant between and Boulch vi- versation purpose raised as to the of the issue appellant’s attorney-client privilege. olated Jackson, a cell mate of Deborah hypnosis. 38.10, tape recording V.A.C.C.P. The Art. [appellant] that “she testified appellant, prior during hypnosis made to and had been to making tapes the reason said Boulch, by and it was obtained depression she had alleviate by grand jury subpoena. from Boulch time,” Attorney the District James S. into only part offered that, response in to his testified McGrath tape recording prior hypno- made of the purpose as to the of the query [McGrath’s] sis. interview, defense counsel Howell hypnotic argues that Appellant the communica- publishing the defense team had stated herself priv- between and Boulch were tions story hypnosis appellant’s rights “agent”- since Boulch was an nec- ileged writing Al- be useful book. would —a essary médium of communication —of the appellant’s attorneys trial though attorneys. defense purpose testified that Boulch attorney’s supplement was to hypnosis attorney-client is summa- privilege there was sufficient evidence investigation, by Wigmore as follows: rized find that the communi- for the trial “(1) legal advice of is any Where kind it was privileged was not because cation (2) professional legal from a advis- sought than purposes such, capacity (3) the commu- er in his brief it is ad- In the defense. (4) to that relating person, made nications is indication that “There some mitted: client, (5) (6) are at by confidence was to (7) interview] permanently protected [of instance his Ap- the offenses from details about gather legal himself or from disclosure plan- were attorneys for a book pellant adviser, (8) except protection determina- write.” The trial court’s ning to waived.” issue was within its discre- the fact tion of in Texas has been embodied privilege ap- upon not be disturbed and should tion 38.10, which V.A.C.C.P. reads in Art. Jackson peal. part: pertinent State, 425 Maldonado v. attorney at law shall not disclose “... (Tex.Cr.App.1968). The deci- made to him his a communication on this basis. could rest sion the existence of that rela- during client disclose other fact tionship, nor contents of However, assuming knowledge of such to the came privileged in fact recording were relationship.” of such reason between communications afforded attorneys, any protection protects communications privilege lost the disclosure privilege indispens who are attorney’s agents Where persons. third to certain between the at contents the communication ible necessary person a third Evidence, presence su Wigmore, client. torney and the attor- be made to 2301; Pipkins, for communication United States Sec. pra, protect will denied, privilege (5th Cir.1976), policy 426 ney, cert. F.2d 559 Evidence, Wigmore supra, the client. 8 ever once Whatever privilege had existed. p. Erwing Defense counsel was, degree Sec. the intended result of dis copy delivered a testified fairness point reached that closure where Salmon, to David Lee taped conversation require that the cease. The investigator, for Salmon to test and private precaution upon insufficient risk of and for secretary to tran- reproduce Evidence, Wigmore, client. See Sec. Although this have may scribe. saved the (McNaughton 1961); Jury rev. In re Grand counsel inconvenience of having defense Investigation Transportation, of Ocean transcription offices, done in their (1979). F.2d 672 Persons who were not be said that nor cannot Salmon his associ- necessary media of communication between necessary ates were media of communica- given and her were ac between and her attorneys. tion tape. cess to the contents of the Therefore contents of the tape The were also revealed was attorney-client privilege the waived. Clark, investigator, Joe who cannot be Smith, (Tex.Civ.App. Morton v. 44 683 S.W. a necessary considered link in communica- 1898). between attorneys. tion the The next contention analogous case, In an Himmelfarb v. taped admission of the interview violated States, 924, United 175 F.2d cert. denied 338 product the work doctrine is similarly with- 70 S.Ct. (1949) U.S. L.Ed. 527 tape recording out merit. This mechanical was employed directly by an accountant is not a work product of conversation attorney, the accountant’s testimony and reports geologists, sense that notes and workpapers were held to be outside the accountants, physicians prod- or are work attorney-client privilege. The accountant applicability work-product ucts. The present at meetings between the de generally pretrial doctrine is limited to dis- attorney fendant and his and was later case, covery procedures. In the instant prosecutor. called as a witness The admissibility trial court ruled on the testimony of the accountant objected However, tape assuming at trial. the appli- ground the defense on the the ac cability work-product doctrine as it is agent countant was an urged, here afforded thus the communications between the attor doctrine was waived. The disclosure of the accountant, ney, taxpayer were pro tape’s persons op- contents to certain third tected. The court held to the contrary, work-product erated as a waiver however, stating: pres “[The accountant’s] protection in the same manner as it consti- indispensible ence was not in the sense that attorney-client privi- tuted waiver presence of an attorney’s secretary may appellant. lege claimed which, be. It was a convenience unfortu accused, nately for served to remove the that her coun contention privileged character of whatever communi they allowed sel were ineffective because cations were made.” interview is also without mer Hypnotic may it. interviews of witnesses Before the was offered in evidence it investigation in the of some legitimate exposed Salmon, associates, had been cases. The effectiveness of counsel and Clark. The contents of the tape were “reasonably standard of ef judged by the persons thus revealed to numerous third parte Duffy, Ex fective assistance.” agents cannot be considered indispens- who (Tex.Cr.App.1980). In applying S.W.2d to the communication ible between totality standard we must look to the this attorneys. and her If the lant communica- representation. Johnson See tape were intended to be confi- on the tions Ex dential, care necessary preserve their Prior, (Tex.Cr.App. parte was not taken. The confidential nature 1976). shows that The overall record precaution, if not indicative of the lack of ap non-privileged totality representation status of the com- rendered original munication, to meet operated destroy adequate later what- trial counsel was pellant’s

constitutional applied by appellant argues charge, by standards as that the name, Supreme omitting kidnap Court and is fun- by this Court. victim’s damentally defective because: it omits an also contends that the trial indictment; element alleged essential in the charge court’s erroneously authorized the theory a conviction on not it authorizes to convict jury theory her on a alleged indictment; in the alleged enlarges and it indictment; in the she had allegations in the indictment upon “intentionally the death of Jason cause[d] allowing jury to convict Phillips,” Blair while the charge, finding that she had committed the application facts, law to the used the during kidnapping attempted “intentionally knowingly words caused person. kidnapping death of JASON BLAIR PHILLIPS.” alleges pertinent part indictment appellant did not objection raise this appellant: that on court and the trial is therefore not entitled intentionally then and there cause “did unless, to relief as she urges, now Phillips by of Jason Blair shoot- the death charge presents fundamental error. gun, him with a and that the said determination, making this MAY BURNETT was then and LINDA review the charge should as a whole. Jack course of committing there in the 591 S.W.2d 820 (Tex.Cr.App. son to commit the attempting offense of kid- 1979); (Tex. Daniel v. upon and of the said Jason Blair napping, Cr.App.1972). Phillips.” charge It has been held that a court’s portion charge The of the of which permits proof conviction which less than complains states: lant required by the allegations that in the in- “Now, you if believe from the evidence dictment, fatally is defective. Cumbie v. a reasonable doubt that in Jeffer- beyond State, (Tex.Cr.App.1979). 578 S.W.2d 732 Texas, on or County, about son present correctly The trial court in the ease LINDA MAY the Defendant BUR- jury portion in the abstract instructed NETT, alone acting party or as a with charge on the law capital of the murder DUGAS, intentionally knowingly or JOE application and murder. of the law death of BLAIR caused the JASON facts, the trial court to the instructed: him with a by shooting gun, PHILLIPS believe you from the evidence be- “[I]f was intentionally that the murder a reasonable doubt yond ... committing course of or in the committed intentionally knowing- Defendant ... or kidnapping, you to commit attempting caused the death of JASON BLAIR ly guilty the Defendant find shall PHILLIPS, by shooting gun, him with a Capital Murder.” offense the Murder intentionally and that naming kidnap victim is not committing in the course of or committed capi- element of the offense of an essential attempting kidnapping, you to commit in the of com- committed course tal guilty find the Defendant shall attempting to commit of- mitting or Capital [Emphasis Murder.” offense State, kidnapping. Brasfield v. fense supplied.] v. (Tex.Cr.App.1980); King S.W.2d State, 425 (Tex.Cr.App.1980). 594 S.W.2d charge as a whole apparent It is Therefore, in this the court case did jurors not authorize the to convict the does element of the offense an essential omit of capital murder unless kidnap- victim of the to name the failing inten found she committed the murder charge. in the ping in the indictment. The tionally, adequately pro of the accused were rights authorized conviction charge court’s charge; in the no fundamental error the murder theory tected only on State, 591 Jackson v. while in the course of commit- presented. See committed kidnapping. V.T.C.A. ting Plunkett the offense Code, 19.03(a)(2). Sec. (Tex.Cr.App.1979). 580 S.W.2d 815 Penal Thomas v. 605 S.W.2d App.1969); contention charge fundamentally (Tex.Cr.App.1980). defective because omitting the name of the victim kidnap should be affirmed. judgment enlarged allegations on the of the indict- merit for is without the reasons stat- ment DAVIS, DAVIS, McCOR- W.C. G. TOM in Sattiewhite ed MICK, JJ., dissent. join (Tex.Cr.App.1980) follows: charge apply- of the court “[W]here law to the facts correctly requires every to find essential element jury alleged in the the offense indictment comports legal theory through

presented proves every allegation factual instrument, charging accused GARRETT, Appellant, Joyce Lewis Lee some perceives who error of omission in charge to reflect one failure Texas, Appellee. STATE call the more factual details averred must matter to the attention of the trial No. 031-82. 36.14, 36.15, 36.16, to Articles pursuant Texas, Appeals of Criminal Court of wheth- for a determination V.A.C.C.P. Banc. En action is in or- appropriate, er corrective preserve point for review un- der to Nov. 1982. ground appellate of error in his der This is because unless otherwise brief.

faulty, charge thus described does not error.” fundamental present (Emphasis origi- standard, nal.) Applying this the court held alleged the indictment and the that since en- showed defendant had proof es- every in conduct constituted gaged aggravated robbery, element sential charge required jury every to find element of the aggrava- offense of essential robbery legal theory consonant with the ted evidence, developed by the no fundamental been shown. error had Sattiewhite to the Applying standards bar, no fundamental error has been case at shown; the indictment had com proved essential element of every

mitted theory alleged with the consistent supported by the indictment case fun Under the facts of this evidence. Sattie presented. damental error is not State, Trostle v. white v. supra; (Tex.Cr.App.1980); Layman see (Tex.Cr. Turner

Case Details

Case Name: Burnett v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 27, 1982

Citation: 642 S.W.2d 765

Docket Number: 65324

Court Abbreviation: Tex. Crim. App.