Ex parte Jose Manuel MALDONADO
No. 69149
Court of Criminal Appeals of Texas, En Banc.
April 17, 1985
(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 оf facilitating the rendition of professional legal services to the client (1) between himself 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 to a lawyer, or a representative of a lawyer representing another party in a pending action and concerning a matter of сommon 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.
(Emphasis added.)
(5) A сommunication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.
The record in this cause contains no evidence to support a finding that any of the communications to which the attorney-client privilege has been assеrted meet the confidentiality requirement set forth in the Texas Rules of Evidence. The burden is on the party asserting a privilege from discovery to produce evidence concerning the applicability of the partiсular privilege to the communication in question. Here, that burden simply was not carried.
Our ruling does not prevent the real parties at interest herein, the defendants in Giffin‘s lawsuit, from producing evidence which will support a finding that the communications in question are entitled to protection from discovery under either the attorney-client privilege or the investigative privilege. We hold only that, under the present record, the district court‘s refusal to grant Giffin‘s mоtion to compel answers to deposition questions was a clear abuse of discretion.
We are confident that Judge Smith will abide by our decision. A writ of mandamus will issue only if he fails to do so.
Ramon Cavazos, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty. and Roberto Gutierrez, Asst. Dist. Atty., Houston, Robert Huttash, State‘s Atty., Austin, for the State.
CLINTON, Judge.
This is an application for writ of habeas corpus brought pursuant to
Applicant was indicted for the offense of aggravated robbery by use and exhibition of a deadly weapon as proscribed by
Applicant now contends his confinement is unlawful “due to the fact that he was denied due process of law.” The only faсtual averment made by applicant in support of this legal conclusion is:
“Although he was indicted for aggravated robbery, the jury was improperly instructed for an offense other than aggra-
vated robbery and the defendant was later ajudged [sic] guilty of aggravated robbery and then sentenced as such.”
In Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) (Opinion on State‘s motion for rehearing), the Court held that charge error which has not been objected to will not form the basis for successful attack on a conviction “unless it appears from the record that the defendant has not had a fair and impartial trial.” See also
In a postconviction collateral attack, the burden is on the applicant to allege and prove facts which, if true, entitle him to relief. In the context of an allegation of an egregiously erroneous charge, one which rises to the level of having denied the applicant a fair and impartial trial, this requirement of pleading will be strictly pursued. In other words, it is not sufficient that the petition allege the denial of a fair and impartial trial or due process of law, which are mere conclusions оf law; neither is it adequate to allege the bare fact that the court‘s charge was somehow erroneous.
Rather, the applicant must allege the reasons a given error in the charge, in light of the trial as a wholе,1 so infected the procedure that the applicant was denied a fair and impartial trial. Once alleged, the burden on the applicant to prove such a denial is heavy and cannot be carried by merеly attaching a certified copy of the court‘s charge to the application for writ of habeas corpus, as was done here.
The application before us utterly fails to allege facts which, if true, entitle the applicant to collateral relief;2 the application is accordingly dismissed. This dismissal is without prejudice to applicant‘s right to replead and support this allegation with adequate reasoning, argument and testimonial and recorded evidence which illustrates the error so infected the trial process as to deny him a fair and impartial trial.3
It is so ordered.
TEAGUE, Judge, dissenting.
In this cause, it should not be open to question that had counsel on direct apрeal for Jose Manuel Maldonado, applicant, or any member of the panel of this Court which decided his cause, see the unpublished opinion of Maldonado v. State, 629 S.W.2d 957 (Tex.Cr.App.1982), which panel was composed of Judges Odom, Davis, T., and Clinton (who is the author of the majority opinion in this cause), observed that the trial court‘s charge was fundamentally defective, Maldonado‘s conviction would have been set aside in 1982, because the error in the trial court‘s charge to the jury caused the verdict of the jury to be erroneous, because the jury was not required to find
I must ask the majority: If Maldonado is not entitled to post-conviction relief because he was convicted by a jury on an erroneously and fundamentally defective jury charge, then why is he not entitled to relief because of ineffective assistance of counsel on appeal, or why is he not entitled to relief because of the Panel‘s error in not “catching” the error in the charge whеn the cause was before the panel on direct appeal?
Something is sadly wrong with our system when one such as Maldonado does not obtain relief because of the egregious error that was present in his trial, as wеll as the manner in which his appeal was handled.
We learn today, however, that “Almanza the Terrible,” see Kucha v. State, 686 S.W.2d 154 (Tex.Cr.App.1985), (Teague, J. Concurring Opinion), which figure of speech is a shorthand rendition I have given for this Court‘s decision of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), was not really an aberration on the part of this Court, but that the opinion represents only an extension of “Coleman the Horrible,” which figure of speech is a shorthand rendition I have given for this Court‘s decision of Ex parte Coleman, 599 S.W.2d 305 (Tex.Cr.App.1978), which held that fundamental error in a trial court‘s charge could not be raised through an аpplication for post-conviction habeas corpus relief: “The writ of habeas corpus cannot be utilized, after conviction, to point out alleged errors in a court‘s charge, as these are matters which should be urged on appeal ....” quoting from Ex parte Gomez, 389 S.W.2d 308, 310 (Tex.Cr.App.1965) cert. denied 386 U.S. 937, 87 S.Ct. 958, 17 L.Ed.2d 810 (1967). Cf., however, Ex parte Clark, 597 S.W.2d 760 (Tex.Cr.App.1980).
The majority implicitly tells Maldonado to go back to “the writ room” and take the following test before he repleads: “In a postconviction collateral attack, the burden is on the applicant to allege and prove facts which, if true, entitle him to relief. In the context of an allegation of an egregiously erroneous charge, one which rises to the level of having denied the applicant a fair and impartial trial, this requirement of pleading will be strictly pursued. In other words, it is not sufficient that the petition allege the denial of a fair and impartial trial or due process of law, which are mere сonclusions of law; neither is it adequate to allege the bare fact that the court‘s charge was somehow erroneous. Rather, the applicant must allege the reasons a given error in the charge, in light of the trial as a whole, (footnote omitted), so infected the procedure that the applicant was denied a fair and impartial trial. Once alleged, the burden on the applicant to prove such a denial is heavy and cannot be carried by merely attaching a certified copy of the court‘s charge to the application for writ of habeas corpus, as was done here.”
I must ask the majority one last question—in this causе: “Is Ex parte Clark, supra, also no more?”
All that I can say to Maldonado, when he takes the above test in “the writ room,” is “Lot‘s of luck,” because I do not believe that either he or any other inmate in the Department of Corrections can pass the test that the majority has devised.
To the majority‘s extension of Almanza v. State, supra, to this cause, I must respectfully dissent.