McAfee, Kenneth Cooper

PD-0667-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/13/2015 3:22:43 PM
Accepted 7/15/2015 3:36:03 PM
ABEL ACOSTA
PD 0667-15 CLERK

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS
_______________________________________________

KENNETH COOPER MCAFEE,
Appellant,

v.

THE STATE OF TEXAS,
Appellee.
_______________________________________________

On Petition for Discretionary Review from the
First Court of Appeals in No. 01-13-00777-CR
affirming the conviction in cause number 1262341,
From the 339th District Court of Harris County, Texas
_______________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
_______________________________________________

ORAL ARGUMENT NOT REQUESTED ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas

JANI MASELLI WOOD
Assistant Public Defender
Harris County, Texas
TBN. 00791195
1201 Franklin Street, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
July 15, 2015
Counsel for Appellant
July 13, 2015
 IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Mr. Kenneth Cooper McAfee
TDCJ# 01879352
Polunsky Unit
3872 FM 350 South
Livingston, TX 77351

TRIAL PROSECUTOR: Ms. Donna Logan
APPELLATE PROSECUTOR: Ms. Jessica Caird
Assistant District Attorney
Harris County, Texas
1201 Franklin, 6th Floor
Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL: Mr. Gerald Fry
Ms. Emily Shelton
801 Congress #350
Houston, Texas 77002

PRESIDING JUDGE: Hon. Maria T. Jackson, Presiding Judge
339th District Court
Harris County, Texas
1201 Franklin, 14th floor
Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL: Mrs. Jani Maselli Wood
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th Floor
Houston, Texas 77002

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 TABLE OF CONTENTS
PAGE

Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The attorney/client privilege is viewed from the perspective of the
client. The State never provided any evidence Mr. McAfee had waived
the privilege. Did the Court of Appeals err in determining that the trial
court did not abuse its discretion is admitting evidence protected by
attorney/client privilege?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1. Neither the State nor the Court of Appeals could ever point to
evidence Mr. McAfee had waived his attorney/client privileged
discussions with Mr. Storer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. The privilege belonged to Mr. McAfee to waive - not his attorney
........................................................ 9

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 3. The Court of Appeals belief that because Mr. McAfee and his
attorney were friends that no privilege existed is inconsequential
to whether the privilege was actually waived.. . . . . . . . . . . . . . . . . . 11

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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 INDEX OF AUTHORITIES
PAGE
Cases:

Carmona v. State,
941 S.W.2d 949 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11

Cruz v. State,
586 S.W.2d 861 (Tex. Crim. App. [Panel Op.] 1979).. . . . . . . . . . . . . . 11, 12

McAfee v. State,
01-13-00777-CR, 2015 WL 2235122
(Tex. App.—Houston [1st Dist.] May 12, 2015, no. pet. h.) . . . . . . . . passim

Motilla v. State,
78 S.W.3d 352 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Sanford v. State,
21 S.W.3d 337 (Tex. App. - El Paso 2000, no pet.). . . . . . . . . . . . . . . . . . . 10

State v. Martinez,
116 S.W.3d 385 (Tex. App. - El Paso 2003, no pet.). . . . . . . . . . . . . . . . . . 10

Statutes and Rules:

TEX. CODE CRIM. PROC. 19.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TEX. R. EVID. 503 (b)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. R. EVID. 503(B)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TEX. R. EVID. 503 (b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

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 STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.

STATEMENT OF THE CASE

This is an appeal from a conviction for murder. (I. C.R. at 687). TEX. CODE

CRIM. PROC. 19.02. Mr. McAfee pleaded not guilty by reason of insanity and was

found guilty by a jury. (I. R.R. at 415, 687). The judge assessed punishment at

confinement for 99 years in the Texas Department of Criminal Justice - Institutional

Division and a $10,000 fine. (C.R. at 687).

STATEMENT OF THE PROCEDURAL HISTORY

In a published opinion, the First Court of Appeals affirmed Mr. MCafee’s

conviction. McAfee v. State, 01-13-00777-CR, 2015 WL 2235122 (Tex.

App.—Houston [1st Dist.] May 12, 2015, no. pet. h.). No motion for rehearing was

filed. After an extension of time, this petition is timely if filed on or before July 13,

2015.

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 GROUND FOR REVIEW

The attorney/client privilege is viewed from the perspective of the
client. The State never provided any evidence Mr. McAfee had waived
the privilege. Did the Court of Appeals err in determining that the trial
court did not abuse its discretion is admitting evidence protected by
attorney/client privilege?

REASON FOR REVIEW

The First Court of Appeals has decided an important question of state
or federal law in a way that conflicts with the applicable decisions of the
Court of Criminal Appeals or the Supreme Court of the United States.
TEX. R. APP. P. 66.3(c).

STATEMENT OF FACTS RELATIVE TO GROUND RAISED

Mr. McAfee was convicted of killing his wife; the Court of Appeals explained

his background succinctly:

In 2006, appellant began to suffer from various health problems. These
issues led to the breakup of appellant's marriage to Janet, and the two
were in the process of getting divorced. The record contains conflicting
evidence regarding the nature of appellant's physical and mental health
issues and includes testimony that appellant suffered from drug and
alcohol abuse, depression, anxiety and panic attacks, degenerative
neurological disease, and dementia. It is undisputed that at the time of
the offense appellant was living in an assisted living facility.

McAfee, 2015 WL 2235122, at *1. Mr. McAfee shot his wife and due to a panic alarm,

there was a SWAT stand off. Id., at *1-3.

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Motion to Suppress

The defense moved to suppress the statements of Charles Storer, Mr. McAfee’s

attorney. (6 R.R. at 8). A hearing was held outside the presence of the jury. (6 R.R.

at 8). Mr. Storer stated Mr. McAfee called him on the day of the offense and stated

he had done something horrible. (6 R.R. at 9). Mr. Storer testified it was a private

conversation and that Mr. McAfee was talking to him in his capacity as an attorney.

(6 R.R. at 9). Mr. Storer went to the scene of the offense and introduced himself to

the police as Mr. McAfee’s attorney. (6 R.R. at 9). Defense Exhibit 1 was introduced,

a police report stating that Mr. Storer arrived on the scene and introduced himself as

the attorney of Mr. McAfee. (21 R.R. at D-1; 6 R.R. at 10).

The State focused on the fact that Mr. McAfee and Mr. Storer had been friends

for many years. (6 R.R. at 7-14). Mr. McAfee had lived with Mr. Storer and his wife

for a short time. (6 R.R. at 18-21). In the beginning of May 2012, Mr. Storer had

started representing Mr. McAfee in his divorce. (6 R.R. at 16). The State asked

whether there had been any formal discussions about representing him in criminal

matters. (6 R.R. at 17). Further, the State offered the 9-1-1 call where Mr. Storer

called the police telling them there had been a shooting, and that his friend had killed

his wife. (6 R.R. at 21). Mr. Storer also gave information to the police about what Mr.

McAfee had told him. (6 R.R. at 23). In that statement, Mr. Storer agreed with the

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officer that he was not representing Mr. McAfee on a criminal case. (6 R.R. at 27).

However, Mr. Storer clarified that he was trying to find another attorney to handle the

criminal case and he was representing him. (6 R.R. at 29-30). Further, Mr. McAfee

never waived the attorney/client privilege nor gave Mr. Storer permission to speak

with anyone about the case. (6 R.R. at 30).

After argument of counsel, the court determined there was no attorney/client

privilege. (6 R.R. at 39).

Argument

The attorney/client privilege is viewed from the perspective of the
client. The State never provided any evidence Mr. McAfee had waived
the privilege. Did the Court of Appeals err in determining that the trial
court did not abuse its discretion is admitting evidence protected by
attorney/client privilege?

1. Neither the State nor the Court of Appeals could ever point to evidence
Mr. McAfee had waived his attorney/client privileged discussions with
Mr. Storer.

The Court of Appeals held “[t]he record contains conflicting evidence

regarding the nature of appellant’s relationship with Storer at the time the phone calls

occurred.” McAfee, 2015 WL 2235122 at *16. Then the Court of Appeals stated that

“appellant told police that he wanted to see his attorney and that when Storer arrived

on the scene, he introduced himself as appellant’s attorney.” Id.

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2. The privilege belonged to Mr. McAfee to waive - not his attorney.

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; between the client or a

representative of the client, and the client's lawyer or a representative of the lawyer.

TEX. R. EVID. 503 (b)(1)(A). In criminal cases, a client has a privilege to prevent the

lawyer or 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. TEX. R. EVID. 503 (b)(2).

The power to waive the attorney-client privilege belongs to the client, or his

attorney or agent both acting with the client's authority. Carmona v. State, 941 S.W.2d

949, 953 (Tex. Crim. App. 1997). This Court has explained:

the mere fact privileged materials already have been disclosed does not
establish a “presumptive” or “automatic waiver.” See Jordan v. Court of
Appeals for Fourth Supreme Judicial District, 701 S.W.2d 644, 649–51
(Tex.1985) (orig. proceeding) (Gonzalez, J., concurring and dissenting)
(mere disclosure of privileged materials does not establish an “automatic
waiver”); TEX.R.CRIM.EVID. 511 (holder of the privilege waives the
privilege if he discloses or consents to disclosure of any significant part
of privileged materials).

Carmona v. State, 941 S.W.2d 949, 953-54 (Tex. Crim. App. 1997).

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

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rendition of professional legal services to the client. TEX. R. EVID. 503(B)(1).

503(B)(2) further provides that:

in criminal cases, a client has a privilege to prevent the lawyer or 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.

The “[i]nvocation of the privilege is dependent upon the existence of an

attorney-client relationship, which has been defined as a contractual relationship

whereby an attorney agrees to render professional services for a client.” State v.

Martinez, 116 S.W.3d 385, 392 (Tex. App. - El Paso 2003, no pet.). The client bears

the burden of establishing the existence of the privilege. Sanford v. State, 21 S.W.3d

337, 342 (Tex. App. - El Paso 2000, no pet.), abrogated on other grounds, Motilla v.

State, 78 S.W.3d 352 (Tex. Crim. App. 2002). Mr. Storer had been representing Mr.

McAfee in his divorce. (6 R.R. at 15-16). There was an attorney/client relationship.

The “attorney-client privilege is designed for the benefit of the client by

guaranteeing to the client the confidentiality necessary to promote forthright

communications between the lawyer and the client.” Carmona, 941 S.W.2d at 953.

Additionally "[t]he Rules of Criminal Evidence make it clear the attorney-client

privilege is held by the client, not the attorney... [a]nd only the client, or an attorney

acting with the client's consent, may waive the attorney-client privilege." Carmona, 941

S.W.2d at 956. (Baird concurring) (citations omitted). Texas law does not authorize

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attorneys to unilaterally waive the attorney-client privilege for their clients; only the

client may relinquish the privilege. Id. citing Cruz v. State, 586 S.W.2d 861 (Tex. Crim.

App. [Panel Op.] 1979).

3. The Court of Appeals belief that because Mr. McAfee and his attorney
were friends that no privilege existed is inconsequential to whether the
privilege was actually waived.

The Court of Appeals discussion of the friendship of the two men is

insignificant for the analysis:

However, it was undisputed that appellant and Storer were long-time
friends, and Storer testified that he was probably appellant's closest
friend. Appellant did not call Storer's legal office; rather, he called
Storer's cell phone. Storer also acknowledged that he did not typically
practice criminal defense law.

McAfee, 2015 WL 2235122, at *16.

Mr. McAfee referred to Charles Storer as “my attorney” while talking to the

S.W.A.T negotiator and received legal advice from Charles Storer on May 8, 2010.

Charles Storer testified that he was giving legal advice and viewed Mr. McAfee as his

friend as well. An objective analysis of these facts demonstrate Mr. McAfee thought

he was conducting privileged communications to obtain legal advice from an attorney.

However it is not Mr. McAfee's burden to disprove waiver, it is the State's

burden to prove waiver. Carmona, 941 S.W.2d at 953(party seeking to benefit from a

finding of waiver has the burden to provide evidence that supports a finding of

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waiver). The State failed to do so. Waiver is not to be “lightly inferred.” Cruz, 586

S.W.2d at 865.

Mr. McAfee was harmed because the statements by Storer were used by Dr.

Moeller to somehow prove that Mr. McAfee was sane at the time of the offense. The

jury could have latched onto this privileged communications and used to justify their

decision to not find for the insanity defense. The law is clear - there was not one

shred of evidence presented that Mr. McAfee ever waived the privilege with Mr.

Storer. A review of the SWAT recording (SX 96) shows Mr. McAfee repeatedly asked

for his attorney. Mr. Storer introduced himself as Mr. McAfee’s attorney.

The Court of Appeals erred in determining that the trial court did not err in

failing to grant the motion to suppress. Review should be granted.

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 PRAYER FOR RELIEF

For the reasons states above, Mr. McAfee prays that this Court grant his

petition for discretionary review.

Respectfully submitted,
ALEXANDER BUNIN
Chief Public Defender
Harris County Texas

Jani Maselli Wood
_______________________________
JANI J. MASELLI WOOD
Assistant Public Defender
Harris County, Texas
Jani.Maselli@pdo.hctx.net
TBN. 00791195
1201 Franklin Street, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278

Attorney for Appellant
Kenneth Cooper McAfee

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 CERTIFICATE OF SERVICE

Pursuant to Tex. R. App. Proc. 9.5, this certifies that on July 13, 2015, a copy
of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and the
Harris County District Attorney’s Office through texfile.com at the following address:

Jessica Caird
Assistant District Attorney
1201 Franklin Street, 6th Floor
Houston, TX 77002
caird_jessica@dao.hctx.net

Lisa McMinn
Lisa.McMinn@SPA.texas.gov

Jani Maselli Wood
_________________________________
JANI J. MASELLI WOOD

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 CERTIFICATE OF COMPLIANCE

Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D).

1. Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this

petition contains 1768 words printed in a proportionally spaced typeface.

2. This petition is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text and Garamond 14 point font in footnotes produced

by Corel WordPerfect software.

3. Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.

Jani Maselli Wood

____________________________

JANI J. MASELLI WOOD

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 Appendix A

Opinion London v. State
McAfee v. State, --- S.W.3d ---- (2015)

Holdings: The Court of Appeals, Evelyn V. Keyes, J., held

2015 WL 2235122 that:

Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED [1] evidence was factually sufficiency to support finding that

FOR PUBLICATION IN THE PERMANENT LAW defendant was aware his conduct was wrong when he

REPORTS. UNTIL RELEASED, IT IS SUBJECT TO murdered his wife;

REVISION OR WITHDRAWAL.

Court of Appeals of Texas, [2] the trial court's error, if any, in permitting the prosecution
Houston (1st Dist. to define the word “wrong” during voir dire by using a

commonly accepted definition of the term that was broader

than the definition set out by caselaw did not constitute
Kenneth Cooper McAfee, Appellant
reversible error; and
v.

The State of Texas, Appellee

NO. 01–13–00777–CR | Opinion issued May 12, 2015
[3] the attorney-client privilege did not apply to bar evidence

of the telephone calls defendant made to his friend, who was

also an attorney, on the night of the murder.

Affirmed.

Synopsis

Background: Defendant was convicted in the 339th District

Court, Harris County, of murder and he was sentenced to 99
West Headnotes (43)
years of imprisonment. Defendant appealed.

© 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)

[1] Criminal Law [4] Criminal Law
Defenses in general Verdict unsupported by evidence or contrary
Criminal Law to evidence
Particular issues or elements Criminal Law
Rendition, form, and entry of judgment
The Texas Court of Criminal Appeals has adopted
the civil standard of factual-sufficiency review for The Court of Appeals may sustain a defendant's
challenges to the rejection of an affirmative factual-sufficiency claim only if, after setting out
defense because the burden of proof is that of the relevant evidence and explaining precisely
preponderance of the evidence, the same burden how the contrary evidence greatly outweighs the
applied in civil proceedings. evidence supporting the verdict, the Court clearly
states why the verdict is so much against the great
weight of the evidence as to be manifestly unjust,
Cases that cite this headnote conscience-shocking, or clearly biased.

Cases that cite this headnote
[2] Criminal Law
Particular issues or elements

In making a factual-sufficiency claim, the [5] Criminal Law
defendant is asserting that, considering the entire Particular issues or elements
body of evidence, the jury's adverse finding on his Criminal Law
affirmative defense was so against the great Ordering new trial
weight and preponderance of the evidence as to
be manifestly unjust. If the Court of Appeals determines that the
evidence supporting an affirmative defense so
greatly outweighs the State's contrary evidence
Cases that cite this headnote that the verdict is manifestly unjust, then the
Court of Appeals may reverse the trial court's
judgment and remand for a new trial.

[3] Criminal Law
Weight of Evidence in General Cases that cite this headnote
Criminal Law
Province of jury or trial court

On a challenge to the sufficiency of the evidence [6] Criminal Law
the Court of Appeals may not usurp the function Insanity
of the jury by substituting its judgment in place of
the jury's assessment of the weight and credibility To establish the affirmative defense of insanity,
of the witnesses' testimony. the defendant must prove that, at the time of the
conduct charged, the actor, as a result of severe
mental disease or defect, did not know that his
Cases that cite this headnote conduct was wrong. Tex. Penal Code Ann. § 8.01.

Cases that cite this headnote

© 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)

[7] Criminal Law Proof of a mental disease or defect alone is not
Innocence sufficient to establish an affirmative defense of
Criminal Law insanity. Tex. Penal Code Ann. § 8.01.
Degree of proof

The law presumes that the accused is sane, and Cases that cite this headnote
the accused bears the burden of proving by a
preponderance of the evidence that he is insane.
Tex. Penal Code Ann. § 8.01.

[11] Criminal Law
Cases that cite this headnote Experts
Criminal Law
Insanity or Other Incapacity

[8] Criminal Law Although jurors may not arbitrarily disregard
Insanity expert testimony as to insanity, neither may they
give conclusive effect to such testimony.
The insanity defense focuses on whether the
accused understood the nature of his action and
whether he knew he should not do it. Tex. Penal Cases that cite this headnote
Code Ann. § 8.01.

Cases that cite this headnote [12] Criminal Law
Defense of insanity

Whether the defense of insanity was proved is a
[9] Criminal Law decision that lies within the province of the jury,
Insanity both as to the credibility of witnesses and the
weight of the evidence and as to the limits of the
For the purpose of an insanity defense, if the defense.
accused knows that his conduct is illegal by
societal standards, then he understands that his
conduct is wrong, even if, due to a mental disease Cases that cite this headnote
or defect, he thinks his conduct is morally
justified. Tex. Penal Code Ann. § 8.01.

[13] Homicide
Cases that cite this headnote Insanity

[10] Criminal Law
Insanity

© 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)

Evidence was factually sufficiency to support The Court of Appeals will not disturb the trial
finding that defendant was aware his conduct was court's ruling on the propriety of a particular voir
wrong when he murdered his wife, in support of dire question absent an abuse of discretion.
the jury's rejection of defendant's insanity defense,
during prosecution for murder, even though
several experts believed defendant's disorders Cases that cite this headnote
were attributable to a degenerative neurological
disorder, the State's expert witness opined that
defendant was not suffering from a degenerative
neurological disorder and that he was sane at the [16] Jury
time he committed the offense, defendant had a Examination of Juror
history of drug and alcohol abuse that could have
contributed to his mental disorders, several A voir dire question is proper if it seeks to
witnesses testified that defendant was placed in an discover a juror's views on an issue applicable to
assisted living facility due to his drug issues and the case.
not due to his dementia, defendant's treating
psychiatrist, testified that he treated defendant up
until the month preceding the offense and he had Cases that cite this headnote
never had any reason to believe that appellant
suffer ed fr o m p sycho sis, delusions,
hallucinations, dementia, or any degenerative
neurological disorder or other physiological [17] Jury
reason for his mental disorders, and there was no Examination of Juror
medical evidence indicating that defendant
suffered from anything other than severe major Voir dire questions that misstate the law are
depressive disorder and anxiety until after he improper.
committed the murder, shot himself in the face,
and was incarcerated. Tex. Penal Code Ann. §
8.01. Cases that cite this headnote

Cases that cite this headnote
[18] Criminal Law
Arguments and Statements by Counsel

[14] Jury Generally, a prosecutor's statements during voir
Discretion of court dire will not constitute error unless they are
contrary to the trial court's charge.
The trial court has broad discretion over the
process of selecting a jury.
Cases that cite this headnote

Cases that cite this headnote

[19] Criminal Law
Custody and conduct of jury
[15] Criminal Law
Selection and impaneling

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

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McAfee v. State, --- S.W.3d ---- (2015)

When a term is undefined in the charge, the Court [23] Criminal Law
of Appeals presumes that the jury attaches a Reception of evidence
common understanding to the meaning of the Criminal Law
term. Evidence wrongfully obtained

When a trial court makes explicit fact findings
Cases that cite this headnote when ruling on a motion to suppress, the Court of
Appeals must determine whether the evidence
viewed in the light most favorable to the trial
court's ruling supports the fact findings.
[20] Criminal Law
Impaneling jury in general
Cases that cite this headnote
A trial court's erroneous ruling on issues relating
to questioning a venire panel about its
understanding of the burden of proof is
non-constitutional error subject to a harm [24] Criminal Law
analysis. Tex. R. App. P. 44.2(b). Review De Novo
Criminal Law
Evidence wrongfully obtained
Cases that cite this headnote
The Court of Appeals reviews motions to
suppress pursuant to a bifurcated standard under
which the trial court's determinations of historical
[21] Criminal Law facts and mixed questions of law and fact that rely
Impaneling jury in general on credibility are granted almost total deference
when supported by the record; however, for
The trial court's error, if any, in permitting the questions of law or mixed questions of law and
prosecution to define the word “wrong” during fact that do not depend on the evaluation of
voir dire by using a commonly accepted definition credibility and demeanor, the Court reviews the
of the term that was broader than the definition set trial court's ruling de novo.
out by caselaw did not constitute reversible error,
during murder prosecution; the error did not have
a substantial or injurious effect or influence the Cases that cite this headnote
verdict against defendant.

Cases that cite this headnote [25] Criminal Law
Trial judge as sole arbiter of credibility

At a suppression hearing, the trial court is the sole
[22] Criminal Law trier of fact and judge of the credibility of the
Reception of evidence witnesses and the weight to be given their
testimony.
In reviewing a trial court's ruling on a motion to
suppress, appellate courts must view the evidence
in the light most favorable to the trial court's Cases that cite this headnote
ruling.

Cases that cite this headnote [26] Criminal Law
Credibility of witnesses in general

© 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)

The trial court may choose to believe or The client can waive the attorney-client privilege
disbelieve any part or all of a witness's testimony. by voluntarily disclosing or consenting to the
disclosure of a significant part of the privileged
matter. Tex. R. Evid. 503(a), 511(1).
Cases that cite this headnote

Cases that cite this headnote

[27] Criminal Law
Illegally obtained evidence
Criminal Law [31] Privileged Communications and Confidentiality
Evidence wrongfully obtained Presumptions and burden of proof

The Court of Appeals sustains the trial court's A party asserting a privilege has the burden of
ruling on a motion to suppress if it is reasonably showing that the privilege applies.
supported by the record and correct on any theory
of law applicable to the case.
Cases that cite this headnote

Cases that cite this headnote

[32] Privileged Communications and Confidentiality
Presumptions and burden of proof
[28] Privileged Communications and Confidentiality
Elements in general; definition Once the privilege has been established, the party
seeking to establish waiver of the privilege has the
The scope of the attorney-client privilege as set burden of going forward with evidence that
out in the rules of evidence is limited to supports a finding of waiver.
communications made by a client seeking legal
advice from a lawyer in her capacity as such and
the communication must relate to the purpose for Cases that cite this headnote
which the advice is sought. Tex. R. Evid.
503(b)(1).

[33] Privileged Communications and Confidentiality
Cases that cite this headnote Waiver of privilege

Waiver of a privilege may be inferred from the
totality of the circumstances and reasonable
[29] Privileged Communications and Confidentiality inferences.
Definition of ‘privilege‘

In general, privileges are exclusionary rules of Cases that cite this headnote
evidence that may be used to suppress relevant
evidence.

[34] Privileged Communications and Confidentiality
Cases that cite this headnote Waiver of privilege

[30] Privileged Communications and Confidentiality
Waiver of privilege

© 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)

The disclosure of the privileged material by [38] Privileged Communications and Confidentiality
defense counsel is relevant in determining waiver Relation of Attorney and Client
of the attorney-client privilege. Tex. R. Evid. 503. Privileged Communications and Confidentiality
Particular cases

Cases that cite this headnote The attorney-client privilege did not apply to bar
evidence of the telephone calls defendant made to
his friend, who was also an attorney, on the night
of the murder, during murder prosecution;
[35] Privileged Communications and Confidentiality defendant and attorney were long-time friends,
Presumptions and burden of proof defendant called attorney's cellular telephone, not
his legal office, attorney generally did not practice
After the State has gone forward with evidence criminal law, attorney had never previously
supporting waiver of the attorney-client privilege, represented defendant in a criminal matter, and
the party claiming the privilege may find it wise the communications were not made to facilitate
to present evidence of no waiver. Tex. R. Evid. legal services. Tex.R. Evid. 503(a)(5), (b)(1).
503.

Cases that cite this headnote
Cases that cite this headnote

[39] Constitutional Law
[36] Criminal Law Presumptions and Construction as to
Privilege Constitutionality
Constitutional Law
The Court of Appeals reviews the trial court's Intent of and Considerations Influencing
decision on the applicability of a privilege for an Legislature
abuse of discretion.
In addressing a constitutional challenge, the Court
of Appeals must begin with the presumption that
Cases that cite this headnote the statute is valid and that the Legislature did not
act arbitrarily or unreasonably in enacting it.

[37] Criminal Law Cases that cite this headnote
Witnesses
Criminal Law
Reception of evidence
[40] Constitutional Law
The Court of Appeals can reverse a decision Burden of Proof
concerning waiver of the attorney-client privilege
only if the trial court applied an erroneous legal The party challenging the statute has the burden
standard, or when no reasonable view of the to establish its unconstitutionality.
record could support the trial court's conclusion
under the correct law and the facts viewed in the
light most favorable to its legal conclusion. Tex. Cases that cite this headnote
R. Evid. 503.

Cases that cite this headnote [41] Constitutional Law
Facial invalidity

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 To prevail on a facial challenge, a party must Panel consists of Justices Keyes, Higley, and Brown.
establish that the statute always operates
unconstitutionally in all possible circumstances.

Cases that cite this headnote OPINION

[42] Constitutional Law
Encroachment in general Evelyn V. Keyes, Justice

The Texas Constitution's separation of powers *1 A jury convicted appellant, Kenneth Cooper McAfee, of
provision ensures that power granted one branch the murder of his wife, Janet McAfee, and the trial court
may be exercised by only that branch, to the assessed his punishment at confinement for ninety-nine years
exclusion of others, and therefore requires that and a $10,000 fine.1 In four issues, appellant argues that (1)
any attempt by one department of government to the jury erred in rejecting his insanity defense because a
interfere with the powers of another is null and preponderance of the evidence supported it; (2) the trial court
void. Tex. Const. art. 2, § 1. erred in overruling his objection to the State's definition of
“wrong” in the context of discussing the insanity defense
during voir dire; (3) the trial court erred in denying his motion
Cases that cite this headnote to suppress the testimony of Charles Storer, an attorney and
friend whom he called in the course of committing the offense;
and (4) the consolidated court costs were unconstitutional
because they included a crime stoppers fee that does not fund
any costs of the court's function.
[43] Constitutional Law
Sentencing and punishment
Constitutional Law
Criminal Law We affirm.
Costs
Constitutional and statutory provisions

The statutory scheme for collection of the crime Background
stoppers fee did not improperly delegate a power
to the judicial branch that was more appropriately Appellant and the complainant, Janet McAfee, married in
attached to the executive branch, as argued by 1991. In 2006, appellant began to suffer from various health
defendant; funds collected for the crime stoppers problems. These issues led to the breakup of appellant's
assistance fund were sufficiently related to the marriage to Janet, and the two were in the process of getting
collection of evidence in criminal cases to divorced. The record contains conflicting evidence regarding
constitute legitimate criminal justice activities. the nature of appellant's physical and mental health issues and
Tex. Loc. Gov't Code Ann. §§ 133.102(a)(1), includes testimony that appellant suffered from drug and
(e)(2), 414.001(2); Tex. Crim. Proc. Code Ann. alcohol abuse, depression, anxiety and panic attacks,
art. 102.013. degenerative neurological disease, and dementia. It is
undisputed that at the time of the offense appellant was living
in an assisted living facility.
1 Cases that cite this headnote

A. The Commission of the Offense
On May 8, 2010, Janet picked appellant up to attend the Art
Car Parade, and the two spent the day together viewing the
parade and later returning to the home they had shared and
where Janet still lived. That evening, a panic alarm in the
On Appeal from the 339th District Court, Harris County, home was activated, and Houston Police Officer R.
Texas, Trial Court Case No. 1262341 Nellippallil was dispatched to the home to investigate. He was
met by appellant, who told Officer Nellippallil that everything
Attorneys and Law Firms was fine and it was a false alarm. Officer Nellippallil testified
that appellant, whom he believed to be the homeowner,
Jessica A. Caird, Devon Anderson and Alan Curry, for The appeared normal and understood his questions. Officer
State of Texas. Nellippallil left the home believing nothing was wrong.

Jani Maselli Wood, for Kenneth Cooper McAfee.
McAfee v. State, --- S.W.3d ---- (2015)

Janet's alarm company also contacted the police regarding the saw that she was lying on her side, unmoving, and the officer
alarm, and a second officer, Officer B. Scott, was dispatched observed blood stains. Appellant continued to insist that Janet
to the home later that evening. As he approached the house, he was fine and that she was just sleeping, and he refused to
met one of Janet's neighbors who expressed her concern for allow the police to enter. At one point, appellant also told the
Janet, stating that she had also received an alarm call officers that he wanted to kill himself, but Officer Scott
regarding the house. Officer Scott asked the neighbor to call testified that he seemed calm, even while making his suicide
Janet, and he rang the door bell. Appellant eventually threat.
answered the door and again told Officer Scott that everything
was fine and it was a false alarm. As Officer Scott returned to
his vehicle, Janet's neighbor stopped him and explained that Eventually, the police dispatched a SWAT team and a Crisis
she knew Janet and appellant were having marital issues and Intervention Response Team (“CIRT”) to the home. Michael
she was concerned for Janet's safety. Hawkins, a clinician with the CIRT, attempted to
communicate with appellant. Hawkins testified that his
training and experience as a licensed professional counselor
Officer Scott then returned to the door and asked to speak with and his crisis intervention training equipped him to recognize
Janet directly. Appellant showed his driver's license to the people suffering from psychosis, hallucinations, and other
officer and claimed that Janet was sleeping and could not acute mental illness. He stated that when he arrived on the
come to the door. When Officer Scott insisted on seeing Janet, scene, he spoke with appellant over the phone and attempted
appellant refused to wake her and refused to allow the officer to get appellant to exit the house. Hawkins testified that while
inside to check on her. Appellant asked if Officer Scott had a he was speaking with appellant, he noticed that appellant
search warrant requiring him to give the officer access to the seemed sad and depressed. In fact, appellant told Hawkins that
home. As Officer Scott was having this discussion with he was depressed, and Hawkins understood from his
appellant, he saw Janet come into view from around the discussion with appellant that the problems had something to
comer, and he saw that she was staggering. Officer Scott asked do with money. However, Hawkins did not observe any speech
her if she was okay, and she told him that she was not and fell or behavior that indicated that appellant was suffering from
to the floor. At that point, appellant immediately shut the door psychosis or hallucinations. Rather, appellant was
in Officer Scott's face and locked it. Officer Scott did not see communicating clearly and his thoughts and words seemed to
any blood or obvious wounds on Janet at that time, but he be “in order” and made sense in context.
informed dispatch of the situation and requested that Officer
Nellippallil return to provide backup so that they could
investigate further. Hawkins also testified that, while he was on the phone with
appellant, appellant asked to speak with his attorney.
Appellant initially indicated that he would come out of the
*2 While Officer Scott was discussing the situation with home after his attorney arrived, and appellant later stated that
dispatch, he observed appellant leave the house with his dog. he would hurt himself if the police entered the home.
Officer Scott approached appellant, questioning him about Appellant's attorney, Charles Storer, arrived on the scene at
Janet's condition and asking why he shut the door so abmptly. some point and spoke to appellant on the phone.
Appellant told him that Janet had been drinking and was
feeling sick as a result. Officer Scott believed that appellant
initially had planned to leave the home, because he was While Hawkins was talking with appellant, the SWAT team
carrying keys to the vehicle and tried to start the engine, but arrived and Officer M. Scales used a magnification scope to
after Officer Scott approached him, appellant put the dog in look into the bedroom where Janet was lying on the bed.
the car and then went back inside the house. Officer Scales did not observe any signs of life from Janet, but
he saw appellant come into the room and lie down next to his
wife. He saw appellant raise one of Janet's legs and let it fall
Officer Scott testified that appellant seemed normal and spoke back onto the bed, and Officer Scales stated that appellant
to him calmly, trying to convince him that everything was appeared resigned at that point. As the other members of the
okay and that he could leave. However, Officer Scott remained SWAT team entered the home, Officer Scales saw appellant
concerned about Janet's safety and waited outside the house shoot himself in the head. Appellant was taken to a local
for backup to arrive. When Officer Nellippallil arrived, they hospital for treatment of his gunshot wound, but Janet was
once again rang the door bell. Appellant did not answer the declared dead at the scene. An autopsy later revealed that she
door. However, one of the officers spoke to appellant by had been shot four times, and physical evidence in the house
phone while the other walked around the outside of the house indicated that she had been shot somewhere outside the
and was able to see of Janet through a bedroom window. He bedroom, had at one point been walking around after being

© 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)

shot, and had been dragged through the kitchen and into the following his medical leave, but he was unable to pass the
hallway. Detectives also discovered bloody towels in a clothes required tests and never returned to active employment. Steets
hamper concealed by the shower curtain. was not aware of any problems between appellant and Janet,
and he was not aware that appellant had ever demonstrated
any anger or violence issues prior to 2006.
*3 Houston Police Officer T. Moore was assigned to guard
appellant while he was at the hospital, and he testified that he
heard a nurse ask appellant why he was in the hospital. Janet's mother, Rosemary Foltyn, testified regarding
Appellant told the nurse he was there because he shot his wife. appellant's relationship with Janet. She stated that they married
An HPD homicide investigator likewise visited the hospital to in 1991. In 2006, appellant had a breakdown involving a panic
get appellant's statement. Appellant asked him how much time attack at work and subsequent treatment for depression, which
he could get for murder and then decided to wait to give a Foltyn was aware had caused Janet and appellant's marriage to
statement until his attorney was present. As part of the suffer. Foltyn also testified that appellant had a history of
investigation, the officer requested to view appellant's mail alcohol and drug abuse. She recalled an incident in 2009 when
while he was confined in the Harris County Jail. A few days she visited Janet and they returned from an outing to find
after appellant arrived at the jail, he sent a letter to his ex-wife, appellant passed out and naked in the hallway, incapacitated
Brenda McAfee, in which he wrote, “I'd say that insanity will due to alcohol and drug use. Foltyn also recounted an incident
be an interesting angle in the trial.” in May 2009 when she became concerned for appellant's
safety while Janet was out of the country. When she called
him, he sounded intoxicated, so she called a neighbor to check
Appellant was tried for Janet's murder, and he asserted the on him, and he was subsequently taken to the hospital for an
affirmative defense of insanity. “overdose situation.”

B. Facts Relevant to Voir Dire *4 Foltyn believed that Janet had given appellant an ultimatum
During its voir dire examination of the venire, the State to “choose between the booze, drugs, your alcohol, or I'm
explained the elements of the affirmative defense of insanity leaving.” Instead, appellant entered the assisted living facility
in an attempt to ascertain whether the potential jurors would because “someone had to take care of him; and [Janet] would
properly apply the law. The prosecutor explained that there not bring him home.” Foltyn testified that this was because of
were essentially three prongs to the insanity defense and stated appellant's drug use and Janet's concern that he “would be
that a defendant asserting the insanity defense would be doing the same old thing.”
required to establish that he was suffering from a severe
mental disease or defect and that there was a causal connection
between the mental illness and the crime. Finally, the Janet and appellant's neighbor, Betty McCagnan, likewise
prosecutor stated, “Third prong[:] Did the defendant know that testified about the overdose incident. She testified that Foltyn
his conduct was wrong? Wrong is defined as legally, socially called her and asked her to go check on appellant. When
or morally impermissible.” Appellant objected, stating, “There McCagnan arrived at appellant's home, she discovered him in
is no legal definition for wrong, and I object to her inserting the living room looking “extremely pale” with “some bruising
her definition. Because since there is no legal definition, then along his legs.” She understood that appellant had “[t]aken a
it's up to the jury.” The State replied that it used the definition lot of pills,” so she called an ambulance, and appellant was
“from case law.” Appellant argued, “It's not in the statute taken to the hospital. McCagnan also testified that Janet had
law.” The trial court overruled the objection.2 given appellant an ultimatum because she wanted him “to
clean it up, get on with it, and she wasn't going to be around to
watch him destroy himself.” McCagnan testified that Janet
C. Facts Relevant to Appellant's Insanity Defense eventually filed for divorce and that appellant went to live in
A significant portion of the trial involved evidence relevant to an assisted living facility because Janet wanted “to protect
appellant's mental state before, during, and after the offense him” and “didn't want him to have access to the internet so that
and the validity of his insanity defense. Appellant's former he could order prescription drugs, or whatever drugs, whatever
supervisor, Paul Steets, testified that appellant had worked at he was ordering.”
a brokerage firm until September 2006, when he had a panic
attack while at work. Following that incident, appellant was
unable to focus and could not complete his work, so he went McCagnan testified that appellant left the first assisted living
on medical leave. Steets testified that appellant needed to facility, lived somewhere else for a time, and eventually
complete some continuing education courses to return to work moved into another assisted living facility. She recalled that

© 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)

there were occasions during this time when Janet did not know filed a counterpetition on appellant's behalf in the divorce
where appellant was, and Janet was afraid that appellant might proceeding.
hurt her. McCagnan stated that Janet sent a letter to her and
other neighbors at one point informing them that a friend had
helped appellant escape from the “supervised facility” where Amaldo Mariano, the assistant director of appellant's assisted
he had been staying and that she did not know where he was. living facility, testified that his facility assisted its residents in
Janet's letter stated that she was afraid because appellant had their daily living by providing meals, housekeeping, and
threatened to kill her before, and she had a letter from his medication management. The facility was not a treatment
psychiatrist explaining that he was a danger to himself and facility or a “lockup” facility, so it was not an appropriate
others. Janet informed her neighbors that she had installed an place for someone suffering from dementia or cognitive
alarm system and new locks and asked that they call the police disorders. He recalled that, at the time appellant was admitted,
if they saw anyone at the house while she was out of the appellant indicated that he suffered from depression. Mariano
country. did not recall appellant claiming that he suffered from
dementia. Mariano testified that appellant told him about
various aspects of his relationship with Janet, including
Appellant's friend, Charles Storer, testified regarding his appellant's statement that she had threatened to report his drug
relationship with appellant. Storer testified that he had known usage to his employer and his statements that she had made
appellant for about twenty-five years and that their relationship various other threats against him. Mariano testified that
had begun as a friendship. Storer described himself as appellant fed, dressed, and groomed himself without
“probably [appellant's] closest friend.” Storer maintained a assistance, that he acted alert and did not display any cognitive
friendship with appellant in which they would visit socially, issues, and that appellant seemed to function fine while he was
attending special events or going out to eat as often as twice a in the facility. Mariano also agreed that the nature of the
week. However, following appellant's breakdown at work in facility necessarily limited appellant's access to prescription
2006, Storer noticed a change in appellant and did not see him drugs and alcohol.
as often socially. He testified that appellant's personality
underwent a drastic change— appellant went from an
outgoing, positive person to a withdrawn and Appellant's treating psychiatrist, Dr. Scott Sprabery, testified
uncommunicative person almost overnight. that he treated appellant from September 2007 until April
2010, approximately one month before the murder. Dr.
Sprabery testified that his main practice involved prescribing
After 2006, Storer tried to maintain contact with appellant but medication and medication management. In September 2007,
only saw him once or twice a month. Storer testified that he when he first saw appellant, appellant was taking an
visited appellant in the assisted living facility and that, at one antidepressant, two anti-anxiety medications, an antipsychotic,
point, appellant called him to come remove him from the a stimulant, and a sleep aid, and he was undergoing
facility. Storer had concerns about the first assisted living electroconvulsive therapy for depression. Dr. Sprabery
facility where appellant lived, in part because of the strict testified that appellant presented with symptoms of depression,
regulations in place there and because of the other kinds of anxiety, poor energy, and “continuing crying spells.” He
people living there. Appellant told Storer that he did not like testified that, at the time he first saw him, appellant had been
the facility and asked Storer to pick him up. Storer brought out of work for almost a year due to his worsening depression
appellant home with him and allowed appellant to live with and had had two hospitalizations from which he was still
him and his wife for a few weeks. However, this arrangement trying to recover.
ended when appellant overdosed and had to be taken back to
the hospital.
Dr. Sprabery testified that while appellant was hospitalized
prior to coming into his care appellant exhibited “psychotic
*5 Storer testified that he was representing appellant pro bono, features,” such as delusions that there was something wrong
without a formal, written agreement, in his divorce from Janet with his body or believing that he had been poisoned. After
at the time of the murder and that he had “reservations” about completing his own evaluation of appellant, Dr. Sprabery
the way Janet was treating appellant with regard to the diagnosed appellant as having “major depressive disorder,
divorce. He believed that Janet was trying to take advantage recurrent, severe” and also determined that appellant had a
of appellant and that, although Janet had tried to help panic disorder. Dr. Sprabery subsequently modified appellant's
appellant for a while, she had essentially abandoned him. medications multiple times and took appellant off of his
However, Storer had never heard appellant say anything antipsychotic medication prior to appellant's removal to an
disparaging about Janet. Four days before the murder, Storer assisted living facility.

© 2015 Thomson Reuters. No claim to original U.S. Government Works.
McAfee v. State, --- S.W.3d ---- (2015)

psychiatrist, evaluated appellant on June 16, 2010. He
diagnosed appellant with a cognitive disorder and severe
Dr. Sprabery also testified that appellant's hospital records major depression that manifested itself with “psychotic
indicated that he had a long-term stimulant addiction over features.” Dr. Pollock explained that this meant that appellant's
approximately twenty years of his adult life and that he had disorder was accompanied by a break with reality and an
concerns about prescribing stimulants for someone with inability to judge or analyze real world events properly. Dr.
appellant's history. He stated that appellant never presented Pollock also determined that appellant suffered from a
with or complained of any psychosis or delusions while under neurological disease of the brain and central nervous system
his care. Dr. Sprabery also testified that appellant never and that he suffered from dementia as well. Dr. Pollock
informed him that he had any addiction to alcohol. If Dr. testified that appellant's disorders were aggravated by stress
Sprabery had suspected alcohol abuse, he would have been and that exposure to severe stress could cause him to develop
very concerned because the combined effects of alcohol with psychotic behavior. Dr. Pollock acknowledged that his opinion
some of the medications appellant was taking could have been that appellant suffered from a vascular neurocognitive disorder
very dangerous. Dr. Sprabery acknowledged that long-term conflicted with the opinion of appellant's treating psychiatrist,
use of methamphetamines and alcohol can cause depression, who had found no neurological reasons for appellant's
and he also stated that amphetamine use can cause memory depression, despite reviewing the same MRI scans on which
deficits and change brain chemicals when used for extensive his own opinion was based.
periods of time, as appellant had done over the course of
twenty years.
Dr. David Axelrad testified as appellant's expert psychiatrist
at trial. He reviewed extensive documentation regarding
*6 Dr. Sprabery's last appointment with appellant occurred appellant's health and the reports of other doctors who had
less than a month before the murder. Appellant complained of treated appellant, and he spent several hours meeting with
persistent depression and sleep difficulties. Appellant did not appellant. His first meeting with appellant occurred on June 7,
demonstrate or complain of psychotic behavior, hallucinations, 2010, and he also met with appellant on April 6, 2011,
or delusions. February 29, 2012, and May 1, 2012. Dr. Axelrad prepared a
lengthy report expressing his finding that, on the night of the
offense, appellant suffered from “major depressive disorder,
Dr. Jamal Rafique, the staff psychiatrist for the Harris County severe, with psychotic and melancholy features” and a “major
Jail, testified regarding the jail's records of appellant's mental vascular neurocognitive disorder with significant behavioral
health. When appellant first arrived in the jail in 2010 after disturbance.”
Janet's murder, he underwent an initial assessment. Appellant
did not report any delusions or hallucinations. In May 2010,
a psychologist working with the mental health unit of the jail Dr. Axelrad testified that appellant suffered from a psychotic
diagnosed appellant with major depressive disorder without episode on the night he committed the offense, which mean
psychosis. Appellant's health records also demonstrated that he that appellant could not know what was true or not true and
had a traumatic brain injury as a result of the self-inflicted would not know right from wrong. Dr. Axelrad opined that
gunshot wound at the time of the murder. appellant did not know right from wrong when he shot his
wife. He testified that it was possible for appellant to
demonstrate clarity of thought and realize his acts were wrong
Appellant's first “psychiatric incident” occurred in January after the psychotic episode was over.
2011, after he had been incarcerated for approximately eight
months. Appellant experienced delusions that people were
chasing him. At that time, appellant was referred to the mental *7 Dr. Mark Moeller testified as the State's expert psychiatrist.
health unit for closer monitoring and mental health treatment. Dr. Moeller met with appellant on two occasions and spent
When Dr. Rafique first met with appellant in January 2011, he about four hours reviewing appellant's medical records. He
diagnosed appellant as having dementia and also believed he testified that there was no causal connection between
might have a psychotic illness. Dr. Rafique was not able to appellant's disorders and the murder. Dr. Moeller likewise did
confirm his “working diagnosis” of dementia with possible not believe that appellant was suffering from dementia and did
psychosis because he never met with appellant again. not agree with appellant's neurologist and neuropsychiatrist
that appellant was suffering from a major neurovascular
disorder; rather, after viewing appellant's MRIs and other
Dr. Richard Pollock, a neuropsychologist who was hired by records, he believed the amount of degeneration shown in the
the defense and worked closely with appellant's expert brain was normal.

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McAfee v. State, --- S.W.3d ---- (2015)

wife. Storer then drove to the house where appellant had shot
Janet and made a statement to a police officer at the scene.
Dr. Axelrad testified regarding the shortcomings in Dr.
Moeller's expert report and opinion testimony. He stated that
Dr. Moeller's opinion did not “address the substantive deficits Regarding the specific legal advice that he gave appellant on
in [appellant's] cognitive abilities that were identified by the the phone that night, Storer testified that appellant told him
two latest neuropsychologists who evaluated” appellant and that “they were going to execute him for what he had done to
who were experts in their field. his wife,” and Storer told him that it was not a capital crime
and “they're not going to try to kill you over it.” Storer
acknowledged that he would have given the same advice to a
D. Facts Relevant to Admission of Storer's Phone client or a friend.
Conversations with Appellant on the Evening of the Murder
The State called Charles Storer, appellant's friend and divorce
attorney, during its case-in-chief. However, appellant moved Storer also acknowledged that he informed the police that he
to suppress Storer's testimony based on an assertion of never represented appellant as his criminal lawyer. According
attorney-client privilege, and the trial court held a hearing to to the statement that Storer made to the police, the majority of
determine whether appellant's statements to Storer were his conversation with appellant involved appellant's
covered by the privilege. representations that he was going to kill himself and Storer's
attempts to talk him out of committing suicide. Storer
acknowledged that when he gave his statement to the police
At the suppression hearing, Storer testified that appellant regarding his conversations with appellant, it never occurred
called him on the evening that he murdered Janet and admitted to him to assert the attorney-client privilege on appellant's
that he had “done something horrible” and that he had killed behalf. However, the evidence also demonstrated that the
his wife. Storer stated that the phone conversation was private, police were aware that Storer had acted as appellant's attorney
that appellant was talking to him as his attorney, that he gave in his divorce proceedings, and appellant repeatedly told the
appellant legal advice, and that when he arrived at the scene SWAT officers that he wanted to talk to his attorney and that
later in the evening, he introduced himself to the police as he would not come out of the house until his attorney arrived.
appellant's attorney. Storer further testified that appellant had Storer further testified that he had helped facilitate appellant's
not waived his attorney-client privilege. hiring of a criminal defense attorney, and he had maintained
a friendship with appellant while he was incarcerated in the
Harris County Jail.
On cross-examination, the State established that Storer had
been an attorney for approximately thirty years and that his
main practice areas were family law, probate, and personal *8 At the suppression hearing, appellant argued that Storer's
bankruptcy. Several years after he met appellant, Storer testimony regarding his conversations with appellant on the
represented appellant in his divorce from his first wife. After evening of the murder was inadmissible because the
that time, Storer maintained a personal, social relationship conversations were protected by the attorney-client privilege.
with appellant. Storer also considered Janet a friend. Appellant argued that, although he eventually hired
criminal-defense counsel, at the time of the offense he did not
have any other counsel—Storer was the only attorney he had.
Janet filed for divorce in March 2010, and Storer began to The State argued that the purpose of the privilege was to
represent appellant in the divorce proceeding on May 4, 2010, protect attorney-client communications pertaining to legal
approximately four days before the murder. Storer stated that representation and that it would be an abuse of the privilege to
he and appellant had a verbal attorney-client agreement, and protect a defendant's inculpatory statements solely on the basis
he admitted that he had never agreed to represent appellant in that they were made to a friend who also happened to be an
any criminal matters and that he was not a criminal-defense attorney. The State argued that there was no on-going
attorney. attorney-client relationship between Storer and appellant at the
time of the communications, that Storer never represented
appellant in this or any other criminal matter, and that
Storer testified that on the night of May 8, 2010, when appellant called Storer because Storer was his best friend, not
appellant called to tell him that he had shot Janet, he because he was a lawyer.
immediately called 9–1–1 and reported that appellant, whom
he described in the 9–1–1 call as a friend, had just shot his

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McAfee v. State, --- S.W.3d ---- (2015)

The trial court ruled that the attorney-client privilege did not defendant is claiming that his evidence is more than sufficient
exist and denied appellant's motion to suppress. to support his affirmative defense, while the State's evidence
is insufficient to rebut it.”).

Storer testified before the jury regarding his twenty-five year
friendship with appellant, just as he had in the suppression A. Standard of Review
hearing. Regarding the night of the murder, Storer testified [1] [2]The Texas Court of Criminal Appeals has adopted the
that he had “[m]aybe six or eight” phone conversations with civil standard of factual-sufficiency review for challenges to
appellant. He stated that he left the scene of the murder around the rejection of an affirmative defense because the burden of
midnight and that he visited the police station the next day to proof is that of “preponderance of the evidence,” the same
give a statement regarding what he knew about the murder. burden applied in civil proceedings. Id. at 671 (citing Meraz
v. State, 785 S.W.2d 146, 149, 153–55 (Tex.Crim.App.1990)).
In making a factual-sufficiency claim, the defendant is
Following the testimony of numerous other witnesses, during asserting that, considering the entire body of evidence, the
the rebuttal phase of trial, the State offered the recording of jury's adverse finding on his affirmative defense was so
the 9–1–1 call Storer made and again called him to the stand. “against the great weight and preponderance” of the evidence
Appellant renewed his objection to the admission of Storer's as to be manifestly unjust. Id.
testimony, which the trial court noted for the record.

*9 [3] [4] [5]Accordingly, we must view the entirety of the
Storer testified that he called 9–1–1 “almost immediately” evidence in a neutral light. Id. However, we “may not usurp
after his first phone conversation with appellant on the evening the function of the jury by substituting [our] judgment in place
of the murder and then he went to the scene. He recalled that of the jury's assessment of the weight and credibility of the
appellant told him that “that something horrible has happened, witnesses' testimony.” Id. We may “sustain a defendant's
that he had just shot Janet.” Storer recalled that appellant had factual-sufficiency claim only if, after setting out the relevant
“snapped,” that appellant believed he was in trouble, and that evidence and explaining precisely how the contrary evidence
appellant wanted to commit suicide. Storer and appellant greatly outweighs the evidence supporting the verdict, [we]
discussed where appellant wanted to be buried, and appellant clearly state[ ] why the verdict is so much against the great
asked him to look after his son. Storer also recalled appellant's weight of the evidence as to be manifestly unjust,
telling him that he believed his life was over and that either he conscience-shocking, or clearly biased.” Id. If we determine
was going to spend the rest of his life in jail for killing Janet that the evidence supporting an affirmative defense so greatly
or that he would be executed. outweighs the State's contrary evidence that the verdict is
manifestly unjust, then we may reverse the trial court's
judgment and remand for a new trial. Id. at 672.
E. The Jury's Verdict and the Trial Court's Judgment
The jury rejected appellant's affirmative defense and found
him guilty of murder. The trial court assessed his punishment [6] [7]Insanity is an affirmative defense, which must be proved
at ninety-nine years' confinement and assessed a $10,000 fine. by a preponderance of the evidence. Tex. Penal Code Ann. §§
The trial court also assessed the statutorily required $133 in 2.04, 8.01 (Vernon 2011). To establish the affirmative defense
consolidated court costs. of insanity, the defendant must prove “that, at the time of the
conduct charged, the actor, as a result of severe mental disease
or defect, did not know that his conduct was wrong.” Id. §
8.01(a). The law presumes that the accused is sane, and the
Insanity Defense accused bears the burden of proving by a preponderance of the
evidence that he is insane. Martinez v. State, 867 S.W.2d 30,
In his first issue, appellant challenges the factual sufficiency 33 (Tex.Crim.App.1993); see Ruffin v. State, 270 S.W.3d 586,
of the jury's rejection of his insanity defense. Stated another 591–92 (Tex.Crim.App.2008) (“Texas law ... presumes that a
way, appellant argues that he offered so much evidence in criminal defendant is sane and that he intends the natural
support of his insanity defense and the State offered so little consequences of his acts.”).
evidence rebutting his defense that the jury's rejection of his
affirmative defense was against the great weight and
preponderance of the evidence. See Matlock v. State, 392 [8] [9] [10]The insanity defense focuses on whether the
S.W.3d 662, 670 n. 29 (Tex.Crim.App.2013) (“Technically, accused understood the nature of his action and whether he
a defendant's claim is not one of ‘factual sufficiency.’ ... The knew he should not do it. Ruffin, 270 S.W.3d at 592; Bigby v.

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McAfee v. State, --- S.W.3d ---- (2015)

State, 892 S.W.2d 864, 877–78 (Tex.Crim.App.1994). In the the inadequacies of Dr. Moeller's report and expert testimony
context of the insanity defense, the word “wrong” means in comparison to the testimony and report of his own expert,
illegal. Ruffin, 270 S.W.3d at 592. If the accused knows that Dr. Axelrad, who conducted a thorough evaluation of
his conduct is “illegal” by societal standards, then he appellant and his medical records and determined that
understands that his conduct is wrong, even if, due to a mental appellant did not know right from wrong at the time of the
disease or defect, he thinks his conduct is morally justified. offense. Appellant also relies on evidence indicating that he
See id. Thus, proof of a mental disease or defect alone is not had no prior criminal history, and he argues that it was not
sufficient to establish an affirmative defense of insanity. Nutter until he became ill and his brain degenerated that he and Janet
v. State, 93 S.W.3d 130, 132 (Tex.App.–Houston [14th Dist.] began to have marital difficulties. He argues that a
2001, no pet.); see Bigby, 892 S.W.2d at 877–78 (“The issue preponderance of the evidence established that he was “a very
of insanity is not strictly medical. It also involves both legal sick man”—“[a] once powerful and wealthy stockbroker
and ethical considerations.”). forced to leave his home ... and go to an assisted living facility
for dementia.”

[11]Although jurors may not arbitrarily disregard expert
testimony as to insanity, neither may they give conclusive The record contains evidence from Dr. Rafique, the jail
effect to such testimony. Graham v. State, 566 S.W.2d 941, psychiatrist, and appellant's expert witnesses, Dr. Axelrad and
950–51 (Tex.Crim.App.1978) (“Opinion testimony does not Dr. Pollock, that appellant suffered from delusions, dementia,
establish material facts as a matter of law.”). The and possible psychosis in addition to his depression, and those
circumstances of the crime itself are also important in doctors believed that appellant's disorders were attributable to
determining the mental state of the accused at the time of the a degenerative neurological disorder. Dr. Axelrad opined that
commission of the offense, and evidence indicating knowledge appellant did not know that his actions were wrong at the time
of wrongful conduct, such as an attempt to conceal he committed the murder. On the other hand, the State's expert
incriminating evidence or elude law enforcement, may be witness, Dr. Moeller, opined that appellant was not suffering
considered.Id. at 951; see also Torres v. State, 976 S.W.2d from a degenerative neurological disorder and that appellant
345, 347–48 (Tex.App.–Corpus Christi 1998, no pet.) was sane at the time he committed the offense, in conflict with
(holding that, in reaching its decision on insanity, jury may the opinions of Dr. Pollock and Dr. Axelrad. Dr. Moeller's
consider circumstantial evidence, including defendant's expert report is shorter than Dr. Axelrad's report, and Dr.
demeanor before and after committing crime, defendant's Moeller did not place the same value on the opinions and
attempts to evade police or conceal incriminating evidence, reports of some of the experts that Dr. Axelrad relied upon in
defendant's expressions of regret or fear of consequences of reaching his opinion. However, this fact by itself does not
his actions, and any other possible explanations for defendant's indicate that the jury's rejection of appellant's insanity defense
behavior). went against the great weight and preponderance of the
evidence.

[12]Whether the defense of insanity was proved is a decision
that lies within the province of the jury, both as to the Appellant construes the evidence as demonstrating that he was
credibility of witnesses and the weight of the evidence and as “a very sick man” who was forced to move to an assisted
to the limits of the defense. Bigby, 892 S.W.2d at 878; see living facility for dementia. This view of the evidence does not
also Reyna v. State, 116 S.W.3d 362, 367 (Tex.App.–El Paso account for the testimony of Rosemary Foltyn, Betty
2003, no pet.) (“The issue of insanity at the time of the offense McCagnan, Charles Storer, and Dr. Sprabery that appellant
lies within the province of the jury, and we will overturn its had a history of drug and alcohol abuse that could also have
decision only where insanity is undisputed or resolved to one contributed to his mental disorders. Foltyn testified that
end of the spectrum outside the realm of discretion.”). appellant had a history of drug and alcohol abuse, and Dr.
Sprabery testified regarding the negative effects drug and
alcohol abuse could have had on appellant's health.
B. Analysis Furthermore, several witnesses, including Mariano,
*10 [13]Here, appellant argues that the great weight and McCagnan, and Foltyn, testified that appellant was not placed
preponderance of the evidence presented at trial supports his in assisted living due to dementia, but rather as a result of his
claim of insanity, and, therefore, the jury erred in rejecting his drug issues.
affirmative defense. Appellant argues that the State's expert
witness, Dr. Moeller, did not conduct a thorough investigation
and “only reiterated the facts of the offense in determining There was no medical evidence indicating that appellant
[appellant] was sane at the time of the offense.” He points to suffered from anything other than severe major depressive

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McAfee v. State, --- S.W.3d ---- (2015)

disorder and anxiety until after he committed the murder, shot After the officers discovered the crime, appellant insisted on
himself in the face, and was incarcerated in the Harris County contacting his lawyer and refused to leave his house. Hawkins,
Jail. Appellant's treating psychiatrist, Dr. Sprabery, testified the crisis intervention counselor, testified that appellant did
that he treated appellant up until the month preceding the not demonstrate any of the characteristics of someone
offense and he had never had any reason to believe that experiencing psychosis or hallucinations. At the hospital,
appellant suffered from psychosis, delusions, hallucinations, appellant told a nurse that he had shot his wife, and he refused
dementia, or any degenerative neurological disorder or other to give a statement to police regarding the incident before
physiological reason for his mental disorders. Dr. Rafique, the consulting with his lawyer. This evidence regarding appellant's
jail psychiatrist, testified that the jail records demonstrated demeanor before, during, and after the crime, his attempts to
only that appellant suffered from major depressive disorder evade police or conceal incriminating evidence, and his
until January 2011, months after the murder, at which time expressions of regret or fear for the consequences of his
appellant began experiencing symptoms of psychosis and actions is relevant to the jury's decision to reject appellant's
dementia. Dr. Pollock, one of appellant's expert witnesses, insanity defense. See Torres, 976 S.W.2d at 347–48; see also
conceded that his diagnosis of degenerative neurological Robinson v. State, 236 S.W.3d 260, 267–68
disorder conflicted with that of appellant's treating (Tex.App.–Houston [1st Dist.] 2007, pet. ref'd) (holding that
psychiatrist, who did not believe appellant's disorders were the evidence of flight may demonstrate consciousness of guilt).
result of a physical disorder. Thus, while there were Finally, the evidence from multiple witnesses regarding
conflicting expert opinions, we cannot say the overwhelming appellant's history of drug abuse and evidence that appellant
weight of the medical evidence indicated that appellant and Janet were divorcing provide other possible explanations
suffered from dementia or psychosis at the time he committed for appellant's behavior. See Torres, 976 S.W.2d at 347–48.
the murder. See Tex. Penal Code Ann. § 8.01(a) (providing
that affirmative defense of insanity applies to actor who did
not know his conduct was wrong “as a result of severe mental We conclude that there was sufficient evidence from which the
disease or defect”). jury could determine that appellant was aware at the time he
murdered Janet that his conduct was wrong. See Tex. Penal
Code Ann. § 8.01(a); Bigby, 892 S.W.2d at 877–78 (stating
*11 Furthermore, contrary to appellant's assertion, it is proper that insanity defense focuses on whether accused understood
for the jury to consider the circumstances of the crime itself. nature of his action and whether he knew he should not do it).
See Graham, 566 S.W.2d at 950 (stating that although jurors We cannot conclude that the evidence supporting appellant's
may not arbitrarily disregard expert testimony as to insanity, affirmative defense so greatly outweighs the State's contrary
neither may they give conclusive effect to such testimony); see evidence that the jury's verdict was manifestly unjust. See
also Torres, 976 S.W.2d at 347–48 (holding that, in reaching Matlock, 392 S.W.3d at 671–72.
its decision on insanity, jury may consider circumstantial
evidence, including defendant's demeanor before and after
committing crime, defendant's attempts to evade police or We overrule appellant's first issue.
conceal incriminating evidence, defendant's expressions of
regret or fear of consequences of his actions, and any other
possible explanations for defendant's behavior).
The State's Definition of “Wrong” During Voir Dire

The record indicates that, on the night of the offense, appellant In his second issue, appellant argues that the trial court erred
appeared normal when Officers Nellipallil and Scott came to in overruling his objection to the State's use of an improper
investigate the security alarm and he told them it was a false definition of “wrong” during voir dire.
alarm. He lied to them and attempted to conceal Janet from
them, closing the door in Officer Scott's face when Janet
stumbled into view, and the officers originally believed his lie. Here, the State defined the term “wrong” in the context of its
When the officers returned to the house to check on Janet, attempt to ascertain whether the potential jurors would
appellant asked for a warrant before he would allow them to properly apply the law of insanity. The prosecutor stated that
enter the home. Appellant tried to flee with his car keys and “[w]rong is defined as legally, socially or morally
his dog, but he left the dog in the vehicle and returned to the impermissible.” Appellant objected, stating, “There is no legal
house when he was confronted by the officers. definition for wrong, and I object to her inserting her
definition. Because since there is no legal definition, then it's
up to the jury.” The State replied that it used the definition

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“from case law.” Appellant argued, “It's not in the statute that “inquiry into a prospective juror's understanding
law.” The trial court overruled the objection. of what proof beyond a reasonable doubt means
constitutes a proper question regardless of whether
the law specifically defines that term. The jury's
*12 On appeal, appellant argues that the trial court erred in ability to apply the correct standard of proof remains
allowing the State to give “its own definition of wrong” and an issue in every criminal case”).
that the prosecutor's statement of law regarding the definition
of “wrong” was incorrect. See Thompson v. State, 95 S.W.3d
537, 541 (Tex.App.–Houston [1st Dist.] 2002, no pet.)
(holding that voir dire questions that misstate law are [19] [20]Rather, when a term is undefined in the
improper). Appellant argues that, by overruling his objection, charge, we presume that the jury “attach[ed] a
“the [trial] court gave the definition its imprimatur” and common understanding to the meaning of the term [
impinged on the jury's ability to assign the term any meaning ].” Smith v. State, 297 S.W.3d 260, 275
which is acceptable in common parlance. (Tex.Crim.App.2009). A trial court's erroneous
ruling on issues relating to questioning a venire
panel about its understanding of the burden of proof
A. Standard of Review is non-constitutional error subject to a harm analysis
[14] [15] [16] [17]“The trial court has broad discretion over under Texas Rule of Appellate Procedure 44.2(b).
the process of selecting a jury.” Fuller v. State, 363 S.W.3d See Tex.R.App. P. 44.2; Fuller, 363 S.W.3d at
583, 585 (Tex.Crim.App.2012) (quoting Sells v. State, 121 587–89; Rich v. State, 160 S.W.3d 575, 577
S.W.3d 748, 755–56 (Tex.Crim.App.2003)). We will not (Tex.Crim.App.2005). We review non-constitutional
disturb the trial court's ruling on the propriety of a particular error to determine whether it affected an appellant's
voir dire question absent an abuse of discretion. Id. A trial substantial rights. Tex.R.App. P. 44.2(b); Johnson v.
court abuses its discretion when it prohibits a proper question State, 43 S.W.3d 1, 4 (Tex.Crim.App.2001). An
about a proper area of inquiry. Id. A question is proper if it error affects a substantial right “when the error has
seeks to discover a juror's views on an issue applicable to the a substantial and injurious effect or influence” on the
case. Id. However, voir dire questions that misstate the law are verdict. Id.
improper. Thompson, 95 S.W.3d at 541.

B. Analysis
[18]Generally, a prosecutor's statements during voir dire will *13 [21]Preliminarily, we note that appellant's
not constitute error unless they are contrary to the trial court's complaint is not one of charge error—the jury
charge. See Wilder v. State, 111 S.W.3d 249, 253 charge did not define the term “wrong,” nor does
(Tex.App.–Texarkana 2003, pet. ref'd). The Court of Criminal appellant argue that the charge should have included
Appeals has held that voir dire questions regarding a a definition of that term. See Kirsch v. State, 357
particular, statutorily undefined term are proper when the S.W.3d 645, 651–52 (Tex.Crim.App.2012) (holding
question seeks to discover the venire members' views on an that fact that appellate court defined
issue applicable to the trial, is not repetitious, and is not in an statutorily-undefined term when reviewing
improper form. Fuller, 363 S.W.3d at 586 (quoting Woolridge sufficiency of the evidence in one case does not
v. State, 827 S.W.2d 900, 906 (Tex. Crim.App.1992)). The necessarily mean definition must or even should be
court stated, provided to jury in future cases); Ramos v. State,
303 S.W.3d 302, 308 (Tex.Crim.App.2009) (holding
[T]he fact that no definition will be provided that, as general rule, terms need not be defined in
[in the jury charge] for a term does not render jury charge if they are not statutorily defined). Thus,
a prospective juror's understanding of that appellant's reliance on the reasoning in Kirsch,
term irrelevant. To the contrary, that which analyzed the harm of providing an instruction
understanding becomes more crucial to the to the jury in the jury charge itself, is misplaced in
intelligent exercise of either the State's or the this case. See 357 S.W.3d at 651–52.
defendant's peremptory challenges because
there is no definition to guide what could be a
juror's skewed perception of the term. The question in this case is whether the trial court
erred, as a matter of law, by allowing the State to
Id. (stating, in context of analyzing allegedly give an improper definition of the word “wrong” to
improper definition of “beyond a reasonable doubt,” the jury that was not later incorporated in an

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McAfee v. State, --- S.W.3d ---- (2015)

instruction in the charge. The Penal Code does not that the error had a substantial or injurious effect or
define “wrong.” However, the Court of Criminal influence on the verdict against appellant or that
Appeals has held that “wrong” in the context of the appellant's substantial rights were affected, as
affirmative defense of insanity means “illegal” by required to demonstrate reversible error. See
societal standards.Ruffin, 270 S.W.3d at 592; see Tex.R.App. P. 44.2(b); Johnson, 43 S.W.3d at 4.
also Bigby, 892 S.W.2d at 878 (holding that focus of
insanity inquiry should not be on appellant's
morality, but should instead be on “whether [he] *14 We overrule appellant's second issue.
understood the nature and quality of his action and
whether it was an act he ought to do.... By accepting
and acknowledging his action was ‘illegal’ by
societal standards, [Bigby] understood that others Admission of Storer's Testimony
believed his conduct was ‘wrong’ ”) (internal
citations omitted). In his third issue, appellant argues that the trial court
erred in denying his motion to suppress the
testimony of Charles Storer, his attorney and friend
The prosecutor's definition of “wrong” as “legally, whom he called in the course of committing the
socially, or morally impermissible” expressed a offense.
commonly accepted meaning of the word that was
somewhat broader than the strict legal definition of
wrong as “illegal” by societal standards. Compare A. Standard of Review
Ruffin, 270 S.W.3d at 592 (holding that “wrong,” in [22] [23]“In reviewing a trial court's ruling on a
context of insanity defense, means “illegal” by motion to suppress, appellate courts must view the
societal standards) and Bigby, 892 S.W.2d at 878 evidence in the light most favorable to the trial
(holding that focus of insanity inquiry should be on court's ruling.” Johnson v. State, 414 S.W.3d 184,
“whether [appellant] understood the nature and 192 (Tex.Crim.App.2013); see also Shepherd v.
quality of his action and whether it was an act he State, 273 S.W.3d 681, 684 (Tex.Crim.App.2008)
ought to do.... By accepting and acknowledging his (holding that we review denial of motion to suppress
action was ‘illegal’ by societal standards, [Bigby] evidence for abuse of discretion). When, as here, a
understood that others believed his conduct was trial court makes explicit fact findings, we must
‘wrong’ ”), with Merriam–Webster's Collegiate determine whether the evidence viewed in the light
Dictionary 1447 (11th ed.2003) (defining “wrong” most favorable to the trial court's ruling supports the
as “not according to the moral standard” or “not fact findings. See Johnson, 414 S.W.3d at 192; see
right or proper according to a code, standard, or also State v. Cullen, 195 S.W.3d 696, 699
convention”). Appellant does not identify any other (Tex.Crim.App.2006) (holding that trial court's
point in the proceedings where the State's definition findings of fact and conclusions of law are sufficient
of the word “wrong” was used, and it is undisputed if they are “recorded in some way, whether written
that the jury charge did not include any definition of out and filed by the trial court, or stated on the
the word “wrong.” We thus presume that the jury record at the hearing”).
“attach[ed] a common understanding to the meaning
of term[ ].” See Smith, 297 S.W.3d at 275 (holding
that jurors are presumed to attach common [24] [25] [26] [27]We review motions to suppress
understanding of meaning of terms that are not pursuant to a bifurcated standard under which the
defined in jury charge). Moreover, that meaning was trial court's determinations of historical facts and
closely similar to the definition in case law and, if mixed questions of law and fact that rely on
anything, was more favorable to appellant than the credibility are granted almost total deference when
strict legal definition. supported by the record. Johnson, 414 S.W.3d at
192. However, for questions of law or mixed
questions of law and fact that do not depend on the
Assuming without deciding that the trial court erred evaluation of credibility and demeanor, we review
by permitting the prosecution to define the word the trial court's ruling de novo. Id. At a suppression
“wrong” during voir dire by using a commonly hearing, the trial court “is the sole trier of fact and
accepted definition that was broader than the judge of the credibility of the witnesses and the
definition set out in case law, we cannot conclude weight to be given their testimony.” Wiede v. State,

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McAfee v. State, --- S.W.3d ---- (2015)

214 S.W.3d 17, 24–25 (Tex.Crim.App.2007). The by the client or the attorney on behalf of the client.
trial court may choose to believe or disbelieve any Tex.R. Evid. 503(c); 61 Tex. B.J. at 382; Cameron,
part or all of a witness's testimony. State v. Ross, 32 241 S.W.3d at 19; see also Carmona v. State, 941
S.W.3d 853, 855 (Tex.Crim.App.2000). We sustain S.W.2d 949, 953 (Tex.Crim.App.1997) (holding that
the trial court's ruling if it is reasonably supported by attorney-client privilege is designed for client's
the record and correct on any theory of law benefit by guaranteeing confidentiality to promote
applicable to the case. Laney v. State, 117 S.W.3d forthright communications between lawyer and
854, 857 (Tex.Crim.App.2003). client). The client can waive the privilege by
voluntarily disclosing or consenting to the disclosure
of a significant part of the privileged matter.Tex.R.
[28]Confidential communications between client and Evid. 511(1), 61 Tex. B.J. at 387;4 Carmona v. State,
counsel made to facilitate legal services are 947 S.W.2d 661, 663 (Tex.App.–Austin 1997, no
generally insulated from disclosure. See Tex.R. pet.). Disclosure by the attorney does not waive the
Evid. 503(b)(1), 61 Tex. B.J. 374, 381 (Tex. & privilege absent the client's consent. Carmona, 947
Tex.Crim.App.1998, amended 2015) (providing that S.W.2d at 663 (citing Cruz v. State, 586 S.W.2d
client has privilege to refuse to disclose and to 861, 865 (Tex.Crim.App.1979)).
prevent any other person from disclosing
confidential communications between client and
lawyer made for purpose of facilitating rendition of [31]A party asserting a privilege has the burden of
professional legal services to client);3 Cameron v. showing that the privilege applies. Peto v. State, 51
State, 241 S.W.3d 15, 19 (Tex.Crim.App.2007). S.W.3d 326, 327 (Tex.App.–Houston [1st Dist.]
Thus, the scope of the attorney-client privilege as set 2001, pet. ref'd); Carmona, 947 S.W.2d at 663
out in the rules of evidence is limited to (“The privilege claimant must prove the existence of
communications “made by a client seeking legal the privilege.”) (citing Austin v. State, 934 S.W.2d
advice from a lawyer in her capacity as such and the 672, 674 (Tex.Crim.App.1996), and Carmona, 941
communication must relate to the purpose for which S.W.2d at 954 n. 6).
the advice is sought.” State v. DeAngelis, 116
S.W.3d 396, 404 (Tex.App.–El Paso 2003, no pet.).
“[T]he proof, express or circumstantial, must [32] [33] [34] [35]Once the privilege has been
indicate the client's desire for confidence and established, the party seeking to establish waiver of
secrecy.” Id. the privilege has the burden of going forward with
evidence that supports a finding of waiver.
Carmona, 947 S.W.2d at 663 (citing Carmona, 941
*15 “A communication is ‘confidential’ if not S.W.2d at 953). Waiver may be inferred from the
intended to be disclosed to third persons other than totality of the circumstances and reasonable
those to whom disclosure is made in furtherance of inferences. Id. The disclosure of the privileged
the rendition of professional legal services to the material by defense counsel is relevant in
client or those reasonably necessary for the determining waiver. Id. After the State has gone
transmission of the communication.” Tex.R. Evid. forward with evidence supporting waiver of the
503(a)(5), 61 Tex. B.J. at 381; DeAngelis, 116 privilege, the party claiming the privilege “may find
S.W.3d at 404. Rule 503(b)(2) adds a special rule of it wise to present evidence of no waiver.” Id.
privilege for criminal cases: “In criminal cases, a
client has a privilege to prevent the lawyer or
lawyer's representative from disclosing any other [36] [37]We review the trial court's decision on the
fact which came to the knowledge of the lawyer or applicability of a privilege for an abuse of discretion.
the lawyer's representative by reason of the Id. at 664. We can reverse a decision only if “the
attorney-client relationship.” Tex.R. Evid. 503(b)(2), trial court applied an erroneous legal standard, or
61 Tex. B.J. at 381; Cameron, 241 S.W.3d at 19. when no reasonable view of the record could support
the trial court's conclusion under the correct law and
the facts viewed in the light most favorable to its
[29] [30]“In general, privileges are exclusionary legal conclusion.” Id. (quoting DuBose v. State, 915
rules of evidence that may be used to suppress S.W.2d 493, 498 (Tex.Crim.App.1996)).
relevant evidence.” Cameron, 241 S.W.3d at 19.
The rule specifies that the privilege may be claimed

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McAfee v. State, --- S.W.3d ---- (2015)

B. Analysis facilitate legal services. See Tex.R. Evid. 503(a)(5),
*16 [38]Here, appellant moved to suppress Storer's 61 Tex. B.J. at 381 (“A communication is
testimony regarding the content of appellant's phone ‘confidential’ if not intended to be disclosed to third
calls to him on the night of the murder based on an persons other than those to whom disclosure is made
assertion of attorney-client privilege. The trial court in furtherance of the rendition of professional legal
held a hearing and determined that the services to the client or those reasonably necessary
attorney-client privilege did not apply to the phone for the transmission of the communication.”);
calls appellant made in the course of committing the Cameron, 241 S.W.3d at 19. Nor did these phone
offense. calls constitute the disclosure of “any other fact
which came to the knowledge of the lawyer or the
lawyer's representative by reason of the
The record contains conflicting evidence regarding attorney-client relationship.” See Tex.R. Evid.
the nature of appellant's relationship with Storer at 503(b)(2), 61 Tex. B.J. at 381; Cameron, 241
the time the phone calls occurred. Storer testified S.W.3d at 19. Rather, the evidence supports the trial
that he communicated that night with appellant as his court's conclusion that appellant's communications
attorney and provided him with legal advice. The were made to Storer in his capacity as appellant's
record also contained evidence that appellant told close friend, and not as an attorney providing legal
police that he wanted to see his attorney and that representation.
when Storer arrived on the scene, he introduced
himself as appellant's attorney.
Although the record contains some conflicting
evidence, the trial court is the sole trier of fact and
However, it was undisputed that appellant and Storer judge of the credibility of the witnesses and the
were long-time friends, and Storer testified that he weight to be given their testimony at a suppression
was probably appellant's closest friend. Appellant hearing, and we are to grant almost total defense to
did not call Storer's legal office; rather, he called the trial court's determinations of historical fact and
Storer's cell phone. Storer also acknowledged that he mixed questions of law and fact that rely on
did not typically practice criminal defense law. credibility when they are supported by the record.
During the suppression hearing, he testified that the See Johnson, 414 S.W.3d at 192; Wiede, 214
advice he gave appellant consisted of informing him S.W.3d 17, 24–25. We cannot conclude that the trial
that the murder was not a capital offense for which court “applied an erroneous legal standard” or that
he could receive the death penalty, and Storer “no reasonable view of the record could support the
admitted that this was the type of advice he would trial court's conclusion” that appellant failed to meet
give to anyone, whether they were a client or a his burden of establishing that the attorney-client
friend. The remaining content of the phone privilege applied to his communications. See
conversations—e.g., appellant's assertion that he Carmona, 947 S.W.2d at 664.
wanted to commit suicide and his wishes for his
burial, and Storer's attempt to talk appellant out of
killing himself—are more typically conversations *17 Given this record, we cannot conclude that the
one would have with a friend, not one's attorney. trial court abused its discretion in finding that the
Storer acknowledged, both to police officers on the attorney-client privilege did not apply to these
day following the murder and at trial, that he had communications. See Johnson, 414 S.W.3d at 192
never represented appellant in a criminal matter. (evidence must be viewed in light most favorable to
And Storer acknowledged that when he called 9–1–1 trial court's ruling); Carmona, 941 S.W.2d at 953
and later made his statement to police, it did not (attorney-client privilege is designed to guarantee
occur to him to assert the attorney-client privilege on confidentiality to promote forthright communication
appellant's behalf. between lawyers and client); see also DeAngelis,
116 S.W.3d at 404 (attorney-client privilege applies
to communications “made by a client seeking legal
Viewing the evidence in the light most favorable to advice from a lawyer in her capacity as such and the
the trial court's ruling, as we must, we conclude there communication must relate to the purpose for which
is evidence to support the trial court's ruling that the advice is sought” and “the proof ... must indicate
these communications were not confidential the client's desire for confidence and secrecy.”).
communications between client and counsel made to

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McAfee v. State, --- S.W.3d ---- (2015)

We have viewed the Texas [separation-of-powers]
We overrule appellant's third issue. provision as generally susceptible to violation in one
of two ways:

(1) when one branch of government assumes or is
Constitutionality of Court Costs delegated a power “more properly attached” to
another branch, or
Following his conviction, the trial court assessed the
mandatory $133 in consolidated court costs. In his
fourth issue, appellant complains that a portion of (2) when one branch unduly interferes with
the court costs, the “crime stoppers fee,” does not another branch so that the other branch cannot
fund any cost for the court's function and thus is effectively exercise its constitutionally assigned
facially unconstitutional. Appellant argues that this powers.
fee should more properly be characterized as a tax
and that requiring courts to collect costs for such a
tax or program that is not refunded back to the courts Id. (quoting Ex parte Gill, 413 S.W.3d 425, 431–32
is a violation of the separation of powers clause (Tex.Crim.App.2013)). Appellant argues that the
because it imposes an executive function on the statutory scheme for collection of the crime stoppers
judicial branch. fee improperly delegates a power to the judicial
branch that is more appropriately attached to the
executive branch. See id.
A. Standard of Review
[39] [40] [41]In addressing a constitutional
challenge, this court “must begin with the Regarding the allocation of court costs addressed by
presumption that the statute is valid and that the appellant, Texas Local Government Code section
Legislature did not act arbitrarily or unreasonably in 133.102(a)(1) provides that a person convicted of a
enacting it.” State v. Rosseau, 396 S.W.3d 550, 557 felony offense “shall pay as a court cost, in addition
(Tex.Crim.App.2013); Salinas v. State, 426 S.W.3d to all other costs,” $133. Tex. Local Gov't Code
318, 326 (Tex.App.–Houston [14th Dist.] 2014, pet. Ann. § 133.102(a)(1) (Vernon Supp.2014). The
granted). The party challenging the statute “has the Local Government Code further provides that these
burden to establish its unconstitutionality.” Rosseau, court costs “shall be collected and remitted to the
396 S.W.3d at 557; Salinas, 426 S.W.3d at 326. comptroller” and that the comptroller shall allocate
“[T]o prevail on a facial challenge, a party must a statutorily determined percentage of the court costs
establish that the statute always operates according to a list of specific accounts and funds. Id.
unconstitutionally in all possible circumstances.” § 133.102(b), (e); see also Tex. Const. art. IV, § 1
Rosseau, 396 S.W.3d at 557; Salinas, 426 S.W.3d at (providing that Comptroller of Public Accounts is
326. one of six officers of state's executive department).
Among those funds is “crime stoppers assistance,”
which is to receive 0.2581 percent of the
[42]The Texas Constitution contains an express consolidated court costs, or, in this case,
separation-of-powers provision. Tex. Const, art. II, approximately $0.34. See Tex. Local Gov't Code
§ 1; Ex parte Lo, 424 S.W.3d 10, 28 Ann. § 133.102(e)(2).
(Tex.Crim.App.2013) (op. on reh'g). “This division
ensures that power granted one branch may be
exercised by only that branch, to the exclusion of *18 Texas Code of Criminal Procedure chapter 102
others,” and “therefore requires that ‘any attempt by provides specifically for the allocation of the crime
one department of government to interfere with the stoppers assistance account. Tex.Code Crim. Proc.
powers of another is null and void.’ ” Ex parte Lo, Ann. art. 102.013 (Vernon 2006). Specifically,
424 S.W.3d at 28 (quoting Meshell v. State, 739 article 102.013 provides:
S.W.2d 246, 252 (Tex.Crim.App.1987)). The Court
of Criminal Appeals has recently held: The legislature shall appropriate funds from
the crime stoppers assistance account to the
Criminal Justice Division of the Governor's
Office. The Criminal Justice Division may use

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McAfee v. State, --- S.W.3d ---- (2015)

10 percent of the funds for the operation of the also O'Bannon v. State, 435 S.W.3d 378, 381–82
toll-free telephone service under Section (Tex.App.–Houston [14th Dist.] 2014, no pet.)
414.012, Government Code, and shall (analyzing similar complaint).
distribute the remainder of the funds only to
crime stoppers organizations. The Criminal
Justice Division may adopt a budget and rules In both Salinas and O'Bannon, the Fourteenth Court
to implement the distribution of these funds. of Appeals held that the appellant failed to satisfy his
burden to show that the statute was facially invalid
Id. art. 102.013(a). because he had not shown that the funds would not
be used for criminal justice activities once they were
distributed. See O'Bannon, 435 S.W.3d at 382;
Salinas, 426 S.W.3d at 327. Here, appellant argues
The Texas Government Code contains provisions that he need not provide evidence regarding how the
defining and regulating crime stoppers organizations. “crime stoppers assistance” fee is distributed
It defines “crime stoppers organizations” to include because the Code of Criminal Procedure provides
either private or public organizations that pay that those funds are to be distributed to “the Criminal
“rewards to persons who report to the organization Justice Division of the Governor's Office,” which
information about criminal activity and that forward[ “may use 10 percent of the funds for the operation of
] the information to the appropriate law enforcement the toll-free [crime stoppers] telephone service” and
agency.” Tex. Gov't Code Ann. § 414.001(2) “shall distribute the remainder of the funds only to
(Vernon 2012). The Government Code also provides crime stoppers organizations.” See Tex.Code Crim.
for a “Texas Crime Stoppers Council,” organized Proc. Ann. art. 102.013(a). He contends that these
under the criminal justice division of the governor's are not judicial branch activities, but executive
office, to “encourage, advise, and assist in the branch activities that are administered by the
creation of crime stoppers organizations” and to executive branch of the State government.
“encourage, advise, and assist crime stoppers
organizations in implementing” programs, among
other duties. Id. §§ 414.002(a), 414.005 (Vernon *19 A review of the statutes related to crime
2012 & Supp.2014). stoppers organizations, however, reveals that funds
collected for the “crime stoppers assistance” fund are
sufficiently related to the collection of evidence in
B. Analysis criminal cases to constitute legitimate criminal
[43]Here, appellant complains that the “crime justice activities. See O'Bannon, 435 S.W.3d at 382
stoppers fee,” included in the consolidated court (addressing similar argument regarding collection of
costs assessed against him, is not actually a cost of DNA testing fee). “Crime stoppers organizations”
court, but is instead a tax. He argues that delegating include either private or public organizations that
the collection of this tax to the judicial branch pay “rewards to persons who report to the
violates the separation of powers clause of the Texas organization information about criminal activity and
Constitution by delegating a power to the judicial that forward[ ] the information to the appropriate law
branch that is more appropriately attached to the enforcement agency.”Tex. Gov't Code Ann. §
executive branch. Thus, he argues, the court costs 414.001(2). The “Texas Crime Stoppers Council”
are facially unconstitutional. has numerous duties, including the duties to
“encourage, advise, and assist in the creation of
crime stoppers organizations,” to “foster the
Our sister court of appeals recently addressed a detection of crime and encourage persons to report
similar argument when an appellant argued that information about criminal acts,” to “promote the
Local Government Code section 133.102 was process of crime stoppers organizations to forward
facially unconstitutional because “the uses specified information about criminal acts to the appropriate
in section 133.102(e) for the court costs collected law enforcement agencies,” to “help law
under section 133.102(a)(1) include uses that are not enforcement agencies detect and combat crime by
properly characterized as ‘costs of court’ ” and, increasing the flow of information to and between
therefore, that section “impermissibly requires the law enforcement agencies,” and to “encourage,
judicial branch to perform an executive function by advise, and assist crime stoppers organizations in
collecting a tax.” Salinas, 426 S.W.3d at 325; see

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McAfee v. State, --- S.W.3d ---- (2015)

implementing” specialized programs targeting sex
offenders, among other duties. Id. § 414.005.

Thus, this statutory scheme allocates resources to be
expended for legitimate criminal justice purposes.
See O'Bannon, 435 S.W.3d at 382 (holding that
“interconnected provisions” permitted DNA Testing
Fee to be redistributed through state highway fund to
Department of Public Safety “for legitimate criminal
justice purposes”); cf. Ex parte Lo, 424 S.W.3d at 28
(holding that separation-of-powers provision may be
violated “when one branch of government assumes
or is delegated a power ‘more properly attached’ to
another branch” or “when one branch unduly
interferes with another branch so that the other
branch cannot effectively exercise its constitutionally
assigned powers.”). Accordingly, appellant has
failed to satisfy his burden to show that the statute is
facially invalid. See Rosseau, 396 S.W.3d at 557.

We overrule appellant's fourth issue.

Conclusion

We affirm the judgment of the trial court.

All Citations

--- S.W.3d ----, 2015 WL 2235122

Footnotes

1 See Tex. Penal Code Ann. § 19.02 (Vernon 2011).

2 The jury charge did not define “wrong.” The jury charge contained, in relevant part, an instruction that the jury could find appellant
not guilty by reason of insanity if it found by a preponderance of the evidence that, “as a result of severe mental disease or defect,
[he] did not know that his conduct was wrong.”

3 Effective April 1, 2015, the Texas Supreme Court adopted amendments to the rules of evidence. 78 Tex. B.J. 42, 42 (Tex.2015). The
revisions to Rule of Evidence 503 were stylistic and do not affect the substance of the rule. We cite the old rule, as that version as
in effect at the time this case was tried.

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McAfee v. State, --- S.W.3d ---- (2015)

4 Effective April 1, 2015, Rule 511 was revised to conform with Federal Rule of Evidence 502. 78 Tex. B.J. at 42. Rule of Evidence
511(a)(1) now provides: “A person upon whom these rules confer a privilege against disclosure waives the privilege if ... the person
or a predecessor of the person while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of
the privileged matter unless such disclosure is itself privileged [.]” Tex.R. Evid. 511(a)(1). Again, we cite the prior version of the
rule, which was in effect at the time this case was tried.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works.

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