This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

rules (Rule 503. Lawyer-Client Privilege)

• When there is a compelling need to call defense attorney as a witness in the case, the trial court must take all appropriate ameliorative measures to prevent harm. Appropriate ameliorative measures include, but are not limited to: (1) substitution of another attorney to replace defense counsel once it becomes apparent that the testimony is required; and (2) appointment of an additional attorney to represent the defendant during the questioning of defense counsel if there is a compelling need for counsel to testify. The trial court must also be confident that defense counsel's credibility before the jury will not be impugned, tarnished, or discredited in any way; the jury will not be confused by the testimony, the subsequent argument relating to the testimony, or the break in the proceedings; and the testimony will not involve, relate to or touch upon any privileged communication. The State may indeed call defense counsel to the stand, and the court may require the lawyer testify, but the State will do so at its own peril. Flores v State (December 15, 2004, No. PD-1908-02)

• A lawyer acting as witness against his client cannot properly perform his duties to his client. With the lawyer on the stand and the client at counsel table, it is impossible for the defendant to consult with his attorney; a lawyer who is testifying for the State cannot adequately protect the record; also, one would have to avoid divulging any privileged information and inadvertent admissions and anticipate the effect of one's answers, while keeping in mind the issues upon which cross-examination of oneself would be required. And, after being burdened with this impossible task, the lawyer would then be faced with cross-examining himself and arguing the client's case to the jury. It is inconceivable that a lawyer, seeking to convince a jury of the innocence of his client, or that the accused has not been proven guilty, can perform that high duty when he assumes the dual role of defense counsel and witness for the prosecution. Such a procedure sullies the entire legal profession. Flores v State (December 15, 2004, No. PD-1908-02)

no error (Rule 503. Lawyer-Client Privilege)

• It was not error to deny motion to suppress evid gained by search of def's attorney's office, over contention seizure violated attorney-client privilege. The item seized was a letter def had mailed to his mother that stated, on its face, that it was written by someone named Robin. First, def steadfastly asserted he did not author the letter. Additionally, the letter was sent to and handled by several third parties. There was no evidence in the record that def intended the communication to be privileged, and, because the purpose of the letter was to perpetrate a fraud, the letter would have been excepted from the attorney-client privilege. Swearingen v State (March 26, 2003, No. 73,851)

harmless (Rule 503. Lawyer-Client Privilege)

• No reversible error presented by violation of attorney-client privilege when prosecutors read hand-written communications from def to counsel, obtained from def's jail cell after def attempted to commit suicide, where proceedings were not adversely tainted. The prosecutor who reviewed the privileged documents testified that he did not use any of the information in the three pages of material in preparing the case, and when questioned specifically about an issue discussed at trial that def's attorneys identified as potentially coming from the materials, the prosecutor pointed to several other sources in which he had obtained the information. Murphy v State (June 25, 2003, No. 74,145)

rules: existence of marriage (Rule 504. Husband-Wife Privileges)

• The existence of an informal marriage may be proven in a judicial proceeding in one of two ways. There can be a showing that a declaration of marriage has been signed. If there is no declaration, there must be evidence that the man and woman first agreed to be married and then lived together in Texas as husband and wife while representing to others that they were married. Fam. Code sec. 2.401 (a)(1)(2). Jasper v State (November 28, 2001, No. 73,817)

no error: existence of marriage (Rule 504. Husband-Wife Privileges)

• It was not error for trial court to fail to rule that def was married to a key state witness. Facts showed that witness had been living with def at his parents' home since the age of fifteen and that the two had a child together. Trial court did not abuse discretion in rejecting def's claim that he and witness were informally married at the time of her testimony where witnesses who testified on issue gave conflicting testimony and failed to establish that an informal marriage existed between def and witness. Jasper v State (November 28, 2001, No. 73,817)

notes (Rule 505. Communications to Clergymen)

• It was not error to apply law of California to issue of admissibility of statement def made to pastor in California, under "most significant relationship" test, over def's contention "most significant relationship" test should not apply because rules at issue in this case were procedural and evidentiary in nature, rather than rules pertaining to substantive rights. Privileges, unlike other rules of evidence, and unlike rules of procedure, are peculiar in their purpose of preserving a substantive right. Unlike other rules of evidence, privileges are not designed primarily to exclude unreliable evidence. In fact, privileges expressly subordinate the goal of truth-seeking to other societal interests protected by the privilege. Privileges are an exception to the general rule of the forum, otherwise applicable to most other rules of evidence, as privileges are more akin to rules pertaining to substantive rights. Gonzalez v State (May 16, 2001, No. 1378-00)

• On challenge to admissibility of statement made by def to pastor while in California, no merit to def's contention that Court of Appeals erred in concluding that, because the communication took place in California, then California was the state with the most significant relationship with the communication. Although appellant committed the offense in Texas and the communication concerned the commission of that offense, pastor had no apparent ties to Texas: there is no evidence that def and pastor had any prior relationship outside of the state of California; def confided in pastor in his capacity as a clergyman serving in the state of California, where def was then living; def had no reason to think that his communication would somehow be affected by the laws of Texas; pastor himself had no intentions of keeping a communication confidential if it involved a victim, and had warned def of this position. It was not error to hold that California was the state with the most significant relationship with the communication. Gonzalez v State (May 16, 2001, No. 1378-00)

• The comments to the Restatement (Second) of Conflict of Laws provide that the state where the communication took place is generally the state with the most significant relationship. Gonzalez v State (May 16, 2001, No. 1378-00)

• On challenge to admissibility of statement made by def to member of clergy while in California, no merit to def's contention that even if California had the most significant relationship with the communication, Texas law should nonetheless control because admission of the questioned communication would be contrary to the strong public policy of Texas. The privilege, on its face under Rule 505, appears to be absolute and without exception, but there is some indication that disclosure may be compelled in two situations: (1) The Texas Family Code (34.04) provides that, with the exception of the attorney-client privilege, evidence will not be excluded on the ground of a privileged communication in proceedings regarding abuse and neglect of a child. (2) A clergyman may also be deemed to have waived any privilege and may be compelled to disclose a confidential communication if he testifies as a character witness for the confidant. Despite Rule 505's facially absolute language, court declined to view the privilege as so deeply-rooted in the state's jurisprudential history that application of another state's version of the privilege, under the facts of this case, would be abhorrent to this State's public policy. Gonzalez v State (May 16, 2001, No. 1378-00)

• Rules of privilege are not evidentiary in their focus, but are established for the purpose of protecting certain relationships and encouraging open and free-flow of communication between persons in such relationships. Gonzalez v State (May 16, 2001, No. 1378-00)