Carmona v. State

BAIRD, Judge,

concurring.

I concur in the judgment of the Court.

I.

THE FACTS

During cross-examination, the State sought to impeach appellant with statements made to a polygraph examiner employed by appellant’s attorney. The statements were contained in a written report prepared by the polygraph examiner. It is undisputed that appellant’s counsel provided a copy of the report to the district attorney and to the police department.1 Appellant objected, contending the admission of the statements would violate the attorney-client privilege. The trial judge overruled the objection, determined the privilege had been waived and permitted the impeachment.

II.

ATTORNEY-CLIENT PRIVILEGE

Relying on Fuller v. State, 835 S.W.2d 768 (Tex.App.—Eastland 1992, pet. ref'd), the Court of Appeals held appellant waived the attorney-client privilege when his attorney voluntarily disclosed the polygraph examiner’s report. Carmona v. State, 880 S.W.2d 227, 234, n. 3 (Tex.App.—Austin 1994).2

A.

Conversations between an attorney and a client are generally privileged and may not be disclosed. The attorney-client privilege is found within Tex.R.Ceim.Evid. 503(b):

General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client and made: (1) between him or his representative and his lawyer or his lawyer’s representative, (2) between his lawyer and the lawyer’s representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer, or a representative of a lawyer representing *956another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client. A client has a privilege to prevent the lawyer or the lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.3

Statements made to an expert hired by defense counsel, including all notes and written reports, are subject to the attorney-client privilege. Ballew v. State, 640 S.W.2d 237, 240 (Tex.Cr.App.1980).

The Rules of Criminal Evidence make it clear the attorney-client privilege is held by the client, not the attorney. Tex.R.Crim. Evid. 503(c) 4; and, 1 Steven Goode et. al., Texas Practice: Texas Rules of Evidence: Civil and Criminal § 503.2, at 321 (2d ed. 1993). And, only the client, or an attorney acting with the client’s consent, may waive the attorney-client privilege. Burnett v. State, 642 S.W.2d 765, 770 (Tex.Cr.App.1982); and, E. Cleary, McCormick’s Handbook on the Law of Evidence 194 (2d ed. 1972). Texas law does not authorize attorneys to unilaterally waive the attorney-client privilege for their clients; only the client may relinquish the privilege. Cruz v. State, 586 S.W.2d 861 (Tex.Cr.App.1979).

“A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). In Cruz, 586 S.W.2d 861, we considered waiver of the attorney-client privilege. Cruz telephoned his attorney, describing an incident where Cruz shot and killed another. The attorney met Cruz, discussed the shooting and viewed the body and crime scene. Cruz and the attorney returned to the attorney’s office and the attorney prepared a written statement, with “Miranda warnings,” concerning the shooting. Id., 586 S.W.2d at 862-863.

Cruz and his attorney then went to the police station. When the police requested the opportunity to take Cruz’s statement the attorney provided the prepared statement. Further, when police attempted to read Cruz the “Miranda warnings,” the attorney interrupted, stating Cruz understood his rights. Cruz signed the prepared statement without reading it. Id., 586 S.W.2d at 863.

We held Cruz’s statement was inadmissible because it was obtained in violation of the attorney-client privilege. Id., 586 S.W.2d at 865. We stated:

... By giving the statement to the police, [Cruz’s] attorney ... disclosed the contents of communications confidentially made to him by appellant during the existence of their attorney-client relationship. These communications did not relate to the commission of future crimes and the client did not knowingly consent to disclosure; the attorney was not excused from his duty to preserve the confidences of his client.

Ibid. We further held the attorney-client privilege was personal to the client and could not be waived solely by Cruz’s attorney. And we refused to imply Cruz’s consent to the waiver:

... Nor can it be said that [Cruz], by signing the statement after it was given to" the police, had waived a privilege so vitally important to him in this case. Waiver mil not be “lightly inferred” and this act alone, done by appellant at the behest of [his] attorney ... fails to show either an intention by appellant to waive his rights or a *957sufficient awareness of the nature and significance of his conduct.

Ibid.

Cruz is consistent with Supreme Court precedent holding waiver of a privilege or right should not be lightly inferred, and courts should “indulge every reasonable presumption against waiver.”5 Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177 (1937). Accordingly, courts should presume that a defendant did not waive his rights. North Carolina v. Butler, 441 U.S. 369, 372-373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979); and, Carnley v. Cochran, 369 U.S. 506, 515, 82 S.Ct. 884, 889, 8 L.Ed.2d 70 (1962). Therefore, a heavy burden rests on the prosecution to prove a knowing and intelligent waiver. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966); Carnley, 369 U.S. at 515-516, 82 S.Ct. at 890; Barker v. Wingo, 407 U.S. 514, 526, 92 S.Ct. 2182, 2190, 33 L.Ed.2d 101 (1972); Johnson, 304 U.S. at 464-465, 58 S.Ct. at 1023; and, Webb v. State, 533 S.W.2d 780, 785 (Tex.Cr.App.1976). And, this burden cannot be sustained from a silent record. Carnley v. Cochran, 369 U.S. at 516, 82 S.Ct. at 890; and, Barker v. Wingo, 407 U.S. at 526, 92 S.Ct. at 2190.

B.

Following this rationale the majority correctly holds the party asserting the waiver has the burden of going forward with evidence of waiver. Ante, at 954. Therefore, the majority correctly disavows Fuller and correctly notes that the Court of Appeals’ reliance on Fuller was misplaced. Ibid. And, because we only review “decisions” of the courts of appeals, see, Tex.R.App.P. 200 et. seq., the majority correctly remands this case to the Court of Appeals to reach a decision under the correct legal standard. Sotelo v. State, 913 S.W.2d 507, 510 (Tex.Cr.App.1995); Denton v. State, 920 S.W.2d 311 (Tex.Cr.App.1996); Craig v. State, 825 S.W.2d 128, 130 (Tex.Cr.App.1992); Lee v. State, 791 S.W.2d 141, 142 (Tex.Cr.App.1990); and Williams v. State, 790 S.W.2d 643, 645 (Tex.Cr.App.1990).6

III.

PRESERVATION OF ERROR

The Court of Appeals did not reach appellant’s contention that his impeachment by statements made to the polygraph examiner violated the work-product doctrine. Instead, the Court of Appeals held appellant’s objection under the attorney-client privilege was insufficient to preserve this error for appeal under Tex.R.App.Proc. 52(a), and 74(d) and (f). Carmona, 880 S.W.2d at 235. The majority affirms holding, “... an objection based on the attorney-client privilege does not preserve for appeal a claim based on the work-product doctrine.” Ante, at 953. I agree.

Although a general objection will preserve error when the error is obvious from the surrounding context, we have consistently held that the point of error must correspond to the objection made at trial. See, Turner v. State, 805 S.W.2d 423, 431 (Tex.Cr.App.1991) (To preserve an issue for appellate review, the point of error must at least minimally comport with the objection at trial.); Long v. State, 800 S.W.2d 545, 548 (Tex.Cr.App.1990) (While a specific objection is usually required to preserve error, a general objection will suffice if the complaint is obvious *958from the surrounding context.); and, Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977) (A specific objection is required to preserve error in most cases, but a general objection will suffice when the objection is clear from surrounding context.). Because appellant’s objection did not address the work-product doctrine, the issue is whether, considering the surrounding context, appellant’s objection was sufficient to apprize the trial judge of a violation of the doctrine.

The work-produet doctrine is designed to facilitate effective representation by providing attorneys with “a privileged area within which [he or she] can analyze and prepare his or her case.” Owens-Corning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749, 750 (Tex.1991); and, 1 Steven Goode et. al., Texas Practice: Texas Rules of Evidence: Civil and Criminal § 503.2, at 323 (2d ed. 1993). See also, Washington v. State, 856 S.W.2d 184, 187-88 (Tex.Cr.App.1993) (A defense investigator’s taped interview of a witness was protected because the work-product doctrine protects attorneys’ preparatory work from discovery.). Conversely, the purpose of the attorney-client privilege is to promote communication between attorney and client unrestrained by fear that these confidences may later be revealed. See, 1 Steven Goode et. al., Texas Practice: Texas Rules of Evidence: Civil and Criminal § 503.2, at 323 (2d ed. 1993) (Outlining the difference between the work-product doctrine and attorney-client privilege.). Compare, Washington, 856 S.W.2d at 187-88 (The focus of the work-product doctrine is on the attorney’s need to prepare a ease for trial.); with, Austin v. State, 934 S.W.2d 672, 673 (Tex.Cr.App.1996) (“The purpose of the attorney-client privilege is to promote communication between attorney and client unrestrained by fear that these confidences may later be revealed.”); and, Cruz, 586 S.W.2d at 865 (The purpose of the attorney-client privilege is to promote straightforward communication between clients and their attorneys). Thus, the work-product doctrine and the attorney-client privilege address different spheres of privilege; one focuses on the attorney’s preparation and the other centers on the communications between the attorney and client. Thus, an objection contending a violation of the attorney-client privilege would not apprize the trial judge of a possible violation of the work-product doctrine. See, James v. State, 772 S.W.2d 84, 99-100 (Tex.Cr.App.1989) (An objection based on relevance will not preserve error for an objection to the improper use of character evidence.). In light of the record in this particular case, I agree with the majority that appellant failed to preserve for appellate review any error relating to the work-product doctrine. Tex. R.App.P. 52(a) (Specific objection is required to preserve error for appellate review.). See, Turner, 805 S.W.2d at 431 (Complaining party must make a timely, specific objection to preserve error for appellate review.).

With these comments, I join the judgment of the Court.

MEYERS, J., joins this opinion.

. Several of the statements were contained only in the polygraph examiner's notes. The record does not establish how the district attorney’s office obtained those notes.

. In Fuller, the defendant and his co-defendant shot the defendant's step-father. Fuller and his co-defendant went to see an attorney with whom they discussed the shooting. When Fuller and his co-defendant left to retrieve their weapons, the attorney called the authorities, told them of the shooting and that Fuller and his co-defendant acted in self defense. Later that day the attorney, Fuller and the co-defendant went to the sheriff's department and surrendered their weapons. The attorney again discussed the shooting with the authorities. At trial the State sought to admit the attorney's statements to the authorities. Fuller and his co-defendant contended these statements were privileged because the attorney’s knowledge came solely from attorney-client communications. Fuller, 835 S.W.2d at 769.

The Fuller Court held an attorney may waive the attorney-client privilege with the client’s implied consent Fuller, 835 S.W.2d at 771. The Court found Fuller and his co-defendant impliedly consented to the waiver of their attorney-client privilege because they accompanied the attorney to meet with the sheriff, failing to either claim the privilege or refute the disclosure of privileged information made in their presence. Ibid.

. All emphasis is supplied unless otherwise indicated.

. Tex.R.Crim.Evid. 503(c) provides:

Who may claim the privilege. The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.

. Indeed, “[s]uch an approach, by presuming waiver of a fundamental right from inaction, is inconsistent with this Court’s pronouncements on waiver of constitutional rights.” Barker v. Wingo, 407 U.S. 514, 526, 92 S.Ct. 2182, 2189, 33 L.Ed.2d 101 (1972). Further, "[w]e generally disfavor inferred waivers of constitutional rights." Estelle v. Williams, 425 U.S. 501, 515, 96 S.Ct. 1691, 1698, 48 L.Ed.2d 126 (1976) (Powell, J., concurring).

. I pause to note the impropriety of the majority stating, "appellant produced no evidence he intended for his communications to Barton to be confidential.” Ante, at 954 n. 6. The confidentiality determination should be made by the Court of Appeals. That Court is certainly aware that confidentiality is required because on original submission it stated, “[appellant’s] communication with Barton must have been intended to be confidential_” 880 S.W.2d at 234.