Lead Opinion
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
A jury сonvicted appellant of three counts of aggravated sexual assault of a child and one count of indecency with a child. The jury assessed punishment at sixty years’ confinement and a $7,000 fine on the aggravated sexual assault convictions and twenty years’ confinement and a $3,000 fine on the indecency with a child conviction with the sentences of confinement running concurrently. The Court of Appeals affirmed the convictions and sentences. Carmona v. State,
The record reflects that after the State presented its casein-chief, appellant took the stand and denied committing аny offense. During his cross-examination of appellant, the prosecutor made it known that he intended to present as rebuttal the testimony of Barton who had conducted a defense-sponsored polygraph examination of appellant shortly after appellant’s arrest. Among other things, Barton was to testify from some notes he made about various incriminatory statements appellant made to him during Barton’s pretest interview of appellant.
The trial court conducted a hearing outside the presence of the jury on appellant’s objection to Barton’s testimony based on the attorney-client privilege. The evidence from this hearing is undisputed. It shows appellant’s lawyer hired Barton to conduct the polygraph examination. Barton conducted a pretest interview of appellant dining which appellant made various incriminatory statements to Barton. Barton took notes from this interview. These notes contained the incriminatory statements appellant made to Barton.
Barton conducted the polygraph examination and concluded appellant “passed” the examination based on the specific questions Barton asked appellant. Barton prepared for appellant’s lawyer a written report which contained only the “favorable” results of the polygraph examination. Barton’s written report did not contain the incriminatory state-
Paul Womack, an assistant district attorney for Williamson County, testified appellant’s lawyer sent him Barton’s written report on appellant’s case and two more reports in other sexual assault against children cases involving other defendants who were represented by appellant’s lawyer. Womack testified appellant’s lawyer’s purpose in sending the reports and disclosing the results of the polygraph examinations was to persuade the district attorney’s office to give some consideration to the “favorable” polygraph results in deciding whether to prеsent the cases to a grand jury.
“Q. And did [appellant’s lawyer] ever place any limitation upon the manner in which you could consider them?
“A. No. His comment to me, as we serially went through the cases, was that each one of these persons was innocent, each one of these cases should just be disposed of, either dismissed or closed out without prosecution, because of the favorable results of the polygraph examiner. And I grew more and more incredulous as we went through the cases, that his clients were having 100 percent pass rate with polygraph examiner, whiсh is an unusual coincidence in my experience.”
Bartlett, an employee with the Taylor Police Department, testified appellant’s lawyer contacted her and informed her that appellant had “passed” a polygraph examination. Bartlett testified appellant’s lawyer asked her to inform the district attorney’s office of this development.
“Q. What was the conversation about?
“A. It was just that [appellant] had taken a polygraph by — Mike Barton, I believe, administered it — and had passed it.
“Q. And what did [appellant’s lawyer] want you to do with that information?
“A Let you all know about it, the District Attorney’s office.”
Bunte, a police officer with the Williamson County Sheriffs Department, testified appellant’s lawyer had disclosed to her the results of polygraph examinations in other cases. She said appellant’s lawyer’s purpose in doing this was to persuade law enforcement authorities not to pursue charges against appellant’s lawyer’s clients. Bunte testified appellant’s lawyer had been successful in doing this in some cases.
“Q. Okay. And has [appellant’s lawyer] ever disclosed to you the results of polygraph examinations on defendants that you were investigating?
“A Yes, sir.
“Q. Few or many occasions?
“A On at least one that I can recall, recently.
“Q. Okay. On others?
“A I believe in the past, yes, sir.
“Q. Okay. And, generally, what would hе say when he would give you such a report?
“A He would advise me that he had his client polygraphed and that he had passed the test and would make the official — the written report available to me.
“Q. And let me show you an example of a written report that has been admitted as State’s Exhibit No. 1 and ask you if this looks similar to the types of reports that you have received from [appellant’s lawyer] in the past.
“A Yes, sir, it does.
“Q. Do you remember that particular one, ever seeing it?
“A. No, sir. I don’t recall this particular one.
“Q. Okay. Has he given you others similar to that one?
“A Yes, sir.
“Q. And what was your understanding of the purpose of receiving those reports?
*952 “A. To make me aware that the polygraph had been administered and that the person who had tаken the polygraph had passed it because I was pursuing the case either with Grand Jury or pursuing for charges.
“Q. As a matter of strategy, was he ever successful based upon giving you the polygraph test and result?
“A. Yes, sir.”
Appellant claimed his incriminatory statements to Barton, Barton’s written report and Barton’s notes
The trial court ruled Barton could testify from his written report and notes about the incriminatory statements appellant made to Barton. Appellant’s lawyer was “completely flabbergasted.”
“I understand. But, Your Honor, I’m completely flabbergasted by the Court’s ruling. I’ve never heard of it being done and I — ”
Barton testified before the jury from his written report about statements appellant made to him during the polygraph examination that were inconsistent with some of appellant’s trial testimony. Barton also testified before the jury from his notes about the incriminatory statements appеllant made to him during the pretest interview. Barton was not permitted to testify before the jury that appellant’s incriminatory statements were made in connection with a polygraph examination, and the results of the polygraph examination were not admitted into evidence.
On direct appeal to the Court of Appeals, appellant claimed the trial court erred to allow Barton to testify from his written report and his notes because they (the statements, the notes and the written report) were protected by the attorney-client privilege. Appellant alsо claimed for the first time on appeal that Barton’s notes were protected by the work-produet doctrine.
The Court of Appeals held the attorney-client privilege was waived as to everything when appellant’s lawyer disclosed Barton’s written report to the police and the district attorney’s office. See Carmona,
I
Appellant argues his objection as to Barton’s notes based on the attorney-client privilege “also preserved his complaint on work product grounds.” Appellant claims:
“Because the polygraph examiner’s notes reflecting Appellant’s communications were at once privileged attorney-client communicаtions and work product, an objection lodged on one privilege necessarily preserved the other privilege as a basis for review. Stated another way, it is impossible under the facts of this case for Appellant to have objected on the basis of the attorney-client privilege without also including the work product doctrine as a basis for nondisclosure of the communications.” (Emphasis in Appellant’s brief).
The work-product doctrine is designed for the benefit of the lawyer by protecting the lawyer from being compelled to disclose “the fruits of his labоr to his adversary.” See Goode, Wellborn & Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal, Section 503.2 at 231 (Texas Practice 1988) (the work-product doctrine on the civil side shields from discovery the “mental impressions, conclusions, opinions, and legal theories of the attorney concerning the litigation”); see also Washington v. State,
The proof required to establish one of these privileges does not necessarily establish the other privilege. And these privileges can be waived in entirely different ways. Therefore, we cannot conclude that an objection based on the attorney-client privilege also puts the trial court or the other party on notice that this objection encompasses the work-product doctrine. See Tex.R.App.Proе. 52(a). We hold an objection based on the attorney-client privilege does not preserve for appeal a claim based on the work-produet doctrine.
II
Appellant also argues the Court of Appeals erroneously relied on Fuller v. State,
We agree with appellant that the power to waive the attorney-client privilege belongs to the client, or his attorney or agent both acting with the client’s authority. See Burnett,
That the party claiming the privilege fails to provide relevant testimony is not necessarily dispositive of the issue.
We also note Fuller relies on the Texas Supreme Court’s majority opinion in Jordan,
We also note appellant and at least one learned treatise cite this Court’s opinions in Burnett and Cruz for the proposition that the party claiming waiver has the burden of going forward with evidence that supports a finding of waiver. See Goode, Wellborn & Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal, Section 511.1 at 341 (Texas Practice 1988). Although Burnett and Cruz do not expressly so hold, they do so implicitly. See Jordan,
Based on the foregoing, we disavow Fuller to the extent it holds “the party asserting the privilege has the burden of disproving the waiver,” and we disapprove of the Court of Appeals’ opinion in this ease to the extent it holds disclosure of privileged materials by a defendant’s lawyer, standing alone, is sufficient to support a finding of waiver. This does not suggest disclosure of privileged materials by a defendant’s lawyer is not relevant on the issue of waiver. We simply hold this еvidence, standing alone, is not dispositive on the issue of waiver and it does not create a “presumptive” waiver. See
Ill
In this case, the Court of Appeals decided the attorney-client privilege was waived. This Court has decided the Court of Appeals erred to the extent it found a waiver based solely on evidence that Barton’s written report was disclosed by appellant’s lawyer to the prosecution and the police. See Carmona,
Notes
. Appellant characterizes these statements as confessions to other crimes which we note involves the same victim as the one alleged in this case.
. The record is not clear on how the prosecution discovered Barton’s notes.
. Appellant’s ground for review states:
"The Court of Appeals erred by concluding that an objection based on attorney-client privilege does not preserve a complaint about the work-product on the same subject and by rejecting this Court's interpretation of attorney-client privilege in Burnett v. State,642 S.W.2d 765 (Tex.Crim.App.1982) and Cruz v. State,586 S.W.2d 861 (Tex.Crim.App.1979) in favor of a published Eastland Court of Appeals opinion.”
. However, we do not read the Court of Appeals’ opinion as placing the burden on the party claiming the privilege to disprove waiver. We read the Court of Appeals’ opinion as holding the State met "its burden of establishing the waiver” when it produced evidence that appellant's lawyer "disclosed a significant portion of the communication to the district attorney’s office and the Taylor Police Department.” See Carmona,
. We note in cases like this the party claiming the privilege is in the best position to know whether he waived the privilege. Sеe Tex. R.Crim.Evid. 511 (the holder of the privilege waives the privilege if he voluntarily discloses or consents to the disclosure of privileged materials). However, other than asserting the attorney-client privilege at trial, appellant provided no testimony relevant to the issue of waiver. But see Burnett,
. We also note these authorities support the proposition that the party claiming a privilege has the burden to prove the existence of the privilege, and that appellant produced no evidence he intended for his communications to Barton to be confidential. Sеe Jordan,
Concurrence Opinion
concurring.
I concur in the judgment of the Court.
I.
THE FACTS
During cross-examination, the State sought to impeach appellant with statements made to a polygraph examiner employed by appellant’s attorney. The statements were contained in a written report prepared by the polygraph examiner. It is undisputed that appellant’s counsel provided a copy of the report to the district attorney and to the police department.
II.
ATTORNEY-CLIENT PRIVILEGE
Relying on Fuller v. State,
A.
Conversations between an attorney and a client are generally privileged and may not be disclosed. The attorney-client privilege is found within Tex.R.Ceim.Evid. 503(b):
General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client and made: (1) between him or his representative and his lawyer or his lawyer’s representative, (2) between his lawyer and the lawyer’s representative, (3) by him or his representative or his lawyer or a representative of the lawyer tо a lawyer, or a representative of a lawyer representing*956 another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client. A client has a privilege to prevent the lawyer or the lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.3
Statements made to an expert hired by defense counsel, including all notes and written reports, are subject to the attorney-client privilege. Ballew v. State,
The Rules of Criminal Evidence make it clear the attorney-client privilege is held by the client, not the attorney. Tex.R.Crim. Evid. 503(c)
“A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst,
Cruz and his attorney then went to the police station. When the police requested the opportunity to take Cruz’s statement the attorney provided the prepared statement. Further, when police attempted to read Cruz the “Miranda warnings,” the attorney interrupted, stating Cruz understood his rights. Cruz signed the prepared statement without reading it. Id.,
We held Cruz’s statement was inadmissible because it was obtained in violation of the attorney-client privilege. Id.,
... By giving the statement to the police, [Cruz’s] attorney ... disclosed the contents of communications confidentially made to him by appellant during the existence of their attorney-client relationship. These communications did not relate to the commission of future crimes and the client did not knowingly consent tо disclosure; the attorney was not excused from his duty to preserve the confidences of his client.
Ibid. We further held the attorney-client privilege was personal to the client and could not be waived solely by Cruz’s attorney. And we refused to imply Cruz’s consent to the waiver:
... Nor can it be said that [Cruz], by signing the statement after it was given to" the police, had waived a privilege so vitally important to him in this case. Waiver mil not be “lightly inferred” and this act alone, done by appellant at the behest of [his] attorney ... fails to show either an intention by appellant to waive his rights or a*957 sufficient awareness of the nature and significance of his conduct.
Ibid.
Cruz is consistent with Supreme Court precedent holding waiver of a privilege or right should not be lightly inferred, and courts should “indulge every reasonable presumption against waiver.”
B.
Following this rationale the majority correctly holds the party asserting the waiver has the burden of going forward with evidence of waiver. Ante, at 954. Therefore, the majority correctly disavows Fuller and correctly notes that the Court of Appeals’ reliance on Fuller was misplaced. Ibid. And, because we only review “decisions” of the courts of appeals, see, Tex.R.App.P. 200 et. seq., the majority correctly remands this case to the Court of Appeals to reach a decision under the correct legal standard. Sotelo v. State,
III.
PRESERVATION OF ERROR
The Court of Appeals did not reach appellant’s contention that his impeachment by statements made to the polygraph examiner violated the work-product doctrine. Instead, the Court of Appeals held appellant’s objection under the attorney-client privilege was insufficient to preserve this error for appeal under Tex.R.App.Proc. 52(a), and 74(d) and (f). Carmona,
Although a general objection will preserve error when the error is obvious from the surrounding context, we have consistently held that the point of error must correspond to the objection made at trial. See, Turner v. State,
The work-produet doctrine is designed to facilitate effective representation by providing attorneys with “a privileged area within which [he or shе] can analyze and prepare his or her case.” Owens-Corning Fiberglas Corp. v. Caldwell,
With these comments, I join the judgment of the Court.
. Several of the statements were contained only in the polygraph examiner's notes. The record does not estаblish how the district attorney’s office obtained those notes.
. In Fuller, the defendant and his co-defendant shot the defendant's step-father. Fuller and his co-defendant went to see an attorney with whom they discussed the shooting. When Fuller and his co-defendant left to retrieve their weapons, the attorney called the authorities, told them of the shooting and that Fuller and his co-defendant acted in self defense. Later that day the attorney, Fuller and the co-defendant went to the sheriff's department and surrendered their weapons. The attorney again discussed the shooting with the authorities. At trial the State sought to admit the attorney's statements to the authorities. Fuller and his co-defendant contended these statements were privileged because the attorney’s knowledge came solely from attorney-client communications. Fuller,
The Fuller Court held an attorney may waive the attorney-client privilege with the client’s implied consent Fuller,
. All emphasis is supplied unless otherwise indicated.
. Tex.R.Crim.Evid. 503(c) provides:
Who may claim the privilege. The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.
. Indeed, “[s]uch an approаch, by presuming waiver of a fundamental right from inaction, is inconsistent with this Court’s pronouncements on waiver of constitutional rights.” Barker v. Wingo,
. I pause to note the impropriety of the majority stating, "appellant produced no evidence he intended for his communications to Barton to be confidential.” Ante, at 954 n. 6. The confidentiality determination should be made by the Court of Appeals. That Court is certainly aware that confidentiality is required because on original submission it stated, “[appellant’s] communication with Barton must have been intended to be confidential_”