*1 808 only every lawyer retained capacity made in that affects not
communications EUO, every plaintiffs’ lawyer an but privileged.2 are not take claims, every a client’s investigate who cites no au- say, Needless to the court attorney investigate retained to the inter- thority extraordinary for this conclusion. corporation group, nal or other affairs dispositive authority solidly to the The that the Upjohn. holding in The court’s as States, Upjohn v. contrary. Co. United apply attorney-client privilege “would Supreme Court held the United States attorney to ... communications an [from investigation potential attorney’s that an star- concerning bare facts” is client] wrongdoing by corporate client’s em- his incursion into the tling the breadth of its protected by attorney- ployees was attorney-client privilege. of the protection gov- The Court held that privilege.3 client prosecutors could seek informa- ernment of the Court’s deserving This case is corporate from the same sources that tion only It affects not ev- plenary attention. not ob- counsel had interviewed but could EUO, an attorney hired to take ery from counsel.4 directly tain information attorney investigates a client’s every who prop- stands for the unremarkable Upjohn parties’ ably pre- have claim. The counsel factual communications be- osition that issues. An erroneous denial sented the attorney concerning and client tween an manda- privilege may be corrected attorney’s investigation client’s petition. grant mus.5 I would are, rule, privi- general affairs at least as a leged. plaintiff,
A a defen- party —whether dant, company may or an insurance re- — counsel, that his claim be legal
tain ask that the re-
investigated, and be assured privi- be inquiries sults of counsel’s will Texas, The STATE of unusual circum- There leged. attorney’s investigation when an stances that should be shared with reveals facts Harvey WEBB, Appellee. Lee opponent, though they acquired even were representa- part attorney’s legal No. 1901-98. example, of his client. For an attor- Texas, Appeals of Court of Criminal scene of an accident ney examining the En Banc. required divulge what he saw might be destroyed. if has since been that evidence 1, March 2000. special circumstances are cited But no here, and in no situation should an attor- communica-
ney required to reveal his a factual investi-
tions with his client about of the court
gation. This sole rationale and over-
appeals simply anti-insurer all manner attorneys fact that
looks the routinely investigate their
of situations claims, investigators to do
clients’ hire
same,
to the clients.
report
the results
adopted
appeals
rule the court of
396,
4.
Id. at
2. 990 Packer, 833, (Tex. 677, 843 Walker v. L.Ed.2d 584 U.S. 101 S.Ct. 3. 449 1992). (1981). *2 substance, non-aggravated trolled Safety felony. See Tex. Health & Code 481.115(b); Tex. Pen.Code two enhance- The indictment contained alleged The first paragraphs. ment which would sequential prior to that of a punishment range' crease the felony. See second-degree Tex. Penal 12.42(a)(2). The enhance- second Code se- alleged two additional paragraph ment argued quential prior felonies. The state 12.42(d) (Ver- that under Tex. Pen.Code Supp.1999), known as the “habitual non statute,1 felony offender” enhanced to a term be- could be further ninety-nine years. twenty-five tween and priors listed in The trial court found the paragraphs to be true. the enhancement However, primary it ruled that while the properly could be 12.42(a)(2), it could not be hanced under 12.42(d). Pur- under further enhanced the court assessed suant to twenty years at confinement. opinion, three-judge unpublished In an Appeals panel of the Fort Worth Court of judg affirmed the trial court’s initially Webb, v. Nos. 2-97-617-CR ment. State (Tex.App Worth & 2-97-737-CR . -Fort 1998) (not 30, designated publica July tion). en rehearing motion for state’s subsequently granted, banc was McCown, Worth, appel- David Fort 30, opinion was withdrawn. On July 1998 lant. 5, 1998, Appeals, November Court Mallín, DA, Charles M. Asst. Fort banc, unanimously affirmed the sitting en Paul, Worth, Atty., Matthew State’s Aus- court, in a the trial this time judgment of tin, for the State. Webb, opinion. State v. 980 published 1998). (Tex.App 924 Worth S.W.2d . -Fort the issue of affirming In the trial court on OPINION enhancement, relied on one of its the court White, v. prior opinions, State 959 S.W.2d JOHNSON,' J., opinion delivered the 1998, pet. (Tex.App. 375 Worth Court, McCORMICK, P.J., which — Fort ref'd). White, 378, at PRICE, MEYERS, MANSFIELD, HOLLAND, WOMACK, KEASLER, had intend legislature held that the court J.J., joined. to exclude state felonies ed subject to enhance under was convict-
Appellee Harvey Lee Webb class of from the ment under possession a con- ed on two counts of 1999). (Tex.Crim.App. Phillips 1. See (B) con- judgment fall for which the felony offenses that under White, finding an affirmative tains appeals the court of held Based on 42.12, 3g(a)(2), Article Code case, in the instant the trial court Procedure. of Criminal appellee’s en- correctly determined that hanced state conviction was for Re- titled “Penalties Webb, subject to further enhancement. Offenders,” Felony pro- peat and Habitual *3 at 927-928. part: in relevant vides (a)(1) the trial of a If it is shown on granted petition the state’s for dis- We jail felony state under Sec- cretionary review to determine whether pre- that the defendant has conviction, jail felony state enhanced to the finally convicted of two viously been second-degree for felo- range felonies, on conviction the de- jail state under Tex. Pen.Code nies for a third- punished fendant shall be punish- may be further enhanced to degree felony. range twenty-five ninety-nine ment to (2) If the trial of a state it is shown on will years under affirm. We jail felony punishable under Section previous- has that the defendant ANALYSIS finally convicted of two ly been 12.85, Felony Section titled “State Jail previous felony and the second convic- Punishment,” provides: an offense that occurred sub- tion is for (a) previous conviction Except provided by sequent Subsection to first as final, (c), guilty of a become on conviction adjudged having an individual a sec- punished by punished be for jail felony state shall be defendant shall jail felony. for any ond-degree confinement in a state term than two or less than years of not more (3) trial a state If it is shown on the days. felony punishable under Section 12.35(c) third-degree trial of a or on the (b) confinement, to an indi- addition has been once felony that the defendant of a state adjudged guilty vidual felony, on convic- convicted of before punished by a fine not to felony may punished for a second- tion he shall be $10,000. exceed degree felony. (c) An adjudged guilty individual (b) trial of a sec- shown on the is punished shall be for a the defendant ond-degree felony if on degree felony third it is shown convicted of a felo- has been once before trial of the offense that: he shall be ny, on conviction (1) weapon by defined deadly as felony. first-degree for a 1.07 was used or exhibited of the offense during the commission flight following during or immediate (d)If trial of a it shown on the offense, the commission than a state offense other individual used or exhibited that the 12.35(a) that punishable under Section deadly weapon party or was to final- been previously the defendant deadly and knew that a
the offense offenses, and ly convicted of two exhibited; weapon would be used or previous the second or subsequent that occurred offense previously the individual has been previous conviction to the first any felony: finally convicted final, on conviction he shall (A) the institu- punished by imprisonment Arti- 3g(a)(l), listed Department of the Texas Proce- tional division Code of Criminal cle life, any dure; Justice for of Criminal equivalent to the of a sec- years more than or less to term of not felony; of the en- degree Regardless ond years. than 25 hancement, appellee was tried for 12.35(a); jail felony punishable punishment, opposed to that his approach statutory our to Under itself, enhance- subject was then text of interpretation, we look the literal such, that fact. As change ment does not meaning, for its and we ordi the statute applicable appellee. narily plain meaning, effect to that give is consistent with the This plain application unless of the statute’s up statutory legislature. scheme set language would lead to absurd conse §§ allow for Both quences Legislature could not aggravated of an enhanced intended, possibly plain have or if the lan *4 12.35(c) (i.e., jail § jail felony a state state ambiguous. Boykin guage felony), is itself an enhancement of a which (Tex.Crim.App.1991). 12.35(a) (i.e., jail § jail felony a state state phrase The state contends that the felony). legislature explicitly Thus the under,” “punishable throughout as used provided “multiple for certain forms of § specific provision refers to the (i.e., jail of enhancements” state felonies range punishment providing of under punish- enhancement of both offense and which the defendant’s is assessed. sentence ment), type argues that the state is, That tried although appellee was among for in the case is not them. instant of a jail felony “punishable convicted state Further, legislature if the had intended 12.35(a),” § under once his conviction was jail that a non-aggravated felony state § pursuant enhanced to it was 12.42(d) under eligible enhancement 12.35(a),” longer “punishable no under likely as well as it is that it “punishable but was instead under so, clearly would have said it did with 12.42(a)(2).” such, As the state asserts jail aggravated state felonies. that allows for further enhance specificity The level of set out these ment, with requisite felony offenses. “multiple that suggests statutes However, interpretation this that the state iso hancement” asserts 12.35(c) “punishable example, lates the words under” from authorized. For states circumstances, their context and “[a]n fails differentiate be that under certain an jail tween enhanced offense a state adjudged guilty en dividual of punishment.2 felony punished degree hanced re a shall be third 12.42(a)(3) specifically felony felony.” fers to “the trial a states that jail jail felony pun other than a state it is shown on the trial of a state “[i]f offense 12.35(a).” 12.35(c) (Empha felony punishable ishable under Section under Section added.) Thus, felony sis ap third-degree the enhancement is on the trial of a that plied with reference to the tried. the defendant has been once before con- offense was tried for victed of a case, appellee felony, the instant on conviction he shall be i.e., jail a a non-aggravated felony, punished second-degree felony.” state for a No- jail felony punishable state a tably, under this latter section refers to both conviction, felony a Following third-degree his his true and one that is enhanced, punishment jail pursuant felony, punishment was then state but with a driving example, under For for an offense of while then be enhanced either Tex. Pen.Code time, (d), intoxicated for the third the offense it- sentencing in which the from a to a self is enhanced misdemeanor increased, by saying range is that felony. 49.09(b)(if §§ See Tex. 49.04 & offense, Pen.Code higher offense "is” shown, priors "the offense is higher punished of- words "shall be for” felony degree”). third fense. for the enhanced offense of DWI felonies, on jail state de- third-degree felony equivalent punished third- fendant shall be for a specificity level of indi- Again, 12.35. this degree felony. that, legislature cates had the meant “multiple of a non- provide enhancement” If it is shown on the trial state “habitual aggravated state jail felony punishable under Section punishment, offender” it would have ex- previ- that the defendant has plicitly so. stated finally convicted of two felo- ously been nies, previous felony con- and the second that Finally, we note this is for an offense that occurred viction not lead to an absurd result that the does previous convic- subsequent to the first legislature could not have intended. final, on conviction providing absurd in nothing There is the defendant shall be for a non-state-jail aggravated felonies and state degree felony. second felonies, jail unaggravated but not felonies, jail eligible for enhancement of (d) on the tnal status, is shown to “habitual offender” than a state other prior felony
regardless of the number of under Section 12.04 convictions. See Tex. Pen.Code previously been final- the defendant has felonies below all (classifying offenses, ly of two convicted non-state terms of “relative *5 felony conviction seriousness”). previous the second subsequent for an offense that occurred over- ground The state’s for review is previous to the first ruled, of judgment Court final, conviction he shall on Appeals is affirmed. in imprisonment the insti- for Depart- the Texas tutional division of KELLER, J., opinion. concurring filed a life, for or ment of Criminal Justice KELLER, concurring J. delivered a years than any term of not more or opinion. years. less than 25 disagree I with the Court’s conclusion contention that an offense The State’s statute is that the habitual enhancement § can enhanced under that Nevertheless, statutory unambiguous. (2) “punishable under longer is no appear does language, ambiguous, while 12.35(a)”- un- § so can be enhanced —and position. Because there appellee’s favor 12.42(a) § a both der —is clearly calling factors are no extratextual statutory of the lan- possible I with contrary interpretation, agree a is not the most reasonable guage but that enhancement under the Court double All likely interpretation. relevant permissible.1 provisions in 12.42 refer to hancement provides 12.42 Texas Penal Code pun- offense that is the “trial of’ part: relevant punishable under ishable or not (a)(1) saying that incongruity There is some the trial If it is shown on 12.35(a) of- trial of a proceeding is the under Sec- jail felony punishable other 12.35(a) not for purposes fense for some pre- that the defendant has provisions when the purposes, especially finally convicted of two viously been construction, (5) particular consequences of a given guidance as Legislature has some 1. The statute; (6) of the construing administrative construction may examine in to the factors we (7) consider, (caption), preamble, and emer among title other the statute. We matters, 311.023; Tex.Gov’t.Code, attained, (1) gency provision. object sought to be (Tex.Crim. (2) the statute Brown v. circumstances under which enacted, (3) of the above fac history, App.1997). An examination legislative com was yield any present case fails statutory provisions, in tors in law or former mon Legislature’s intent. subjects, indication cluding laws on the same or similar stage of trial operate involved at the same statutory are 'within the same found There no indication in the stat-
section.
utory Legislature language of en- stacking
tended to authorize the 12.42; rather,
hancements under
language sug- and structure of the statute
gests that the subsections are alternative provisions. Legislature
enhancement contrary
could have made clear a intent single the addition word to
with 12.42(d), follows: on trial is shown other than a state
punishable only under Section previously been the defendant has
finally of- convicted of ....
fenses
(Italicized inserted). language The addi-
tion of word “only” to the statute
would have made clear that other enhance- to a
ments offense would have
made eligible the offense comments, join
With these I the Court’s
opinion insofar as it holds that a state *6 enhanced under cannot again
be enhanced REASOR,
Mark Edward
The STATE of Texas.
No. 681-99. Appeals
Court of Criminal of Texas.
March