William Porter v. State , 513 S.W.3d 695 ( 2017 )

Opinion issued January 10, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00960-CR
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WILLIAM PORTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1430828
OPINION
The State charged William Porter with murder. Porter pleaded not guilty, and
a jury returned a verdict of guilty and assessed his punishment at 33 years’
confinement. On appeal, Porter contends that the trial court erred in admitting
testimony from Porter’s attorney about that attorney’s removal and secretion of a
bullet from the crime scene because it constitutes a privileged communication under
the attorney-client privilege. We conclude that the attorney’s conduct does not fall
within the attorney-client relationship and thus does not fall within the privilege. We
therefore affirm.
BACKGROUND
The murder
On a Saturday evening in August 1986, Porter and his girlfriend, Anita Fries,1
began using drugs at Porter’s home. Porter was a drug dealer for the neighborhood.
He was upset that several people, including the decedent, Gerald Oncale, owed
money to him. When Porter learned that Oncale was nearby, Porter left the house
and met Oncale around the corner. At that meeting, Oncale agreed to cash a check
at a nearby convenience store to pay Porter the money that Oncale owed to him.
Oncale cashed the check and paid Porter some of the money he owed. Oncale told
Porter he had just purchased an “eight-ball” of cocaine and offered to share the drugs
with Porter.
Porter invited Oncale to join him and Fries for the evening. The three returned
to Porter’s home. Oncale pulled his truck into the driveway behind Porter’s vehicle.
They went inside Porter’s house and began using the drugs.
1
By the time of trial, Anita Fries’s surname was Olivo. For clarity, this opinion refers
to her as Fries throughout.
2
The conversation turned to Oncale’s source for his drug supply. Oncale
revealed that he had obtained the drugs from the same individual that Porter used for
his supply. Porter became angry with Oncale, who was seated on the couch in the
living room. The argument became heated, and Porter, standing on the other side of
the coffee table across from Oncale, drew his gun. Oncale, who was seated on the
couch, began to stand up. Porter ordered Oncale to sit back down. Porter then shot
Oncale, who fell backward on the couch, slid onto the floor, and died.
Fries panicked and ran to Porter’s mother’s house across the street. She told
Porter’s mother, Inga, what had happened. Inga instructed Fries to stay there while
she went across the street to Porter’s house. Fries watched as Porter dragged
Oncale’s body outside onto the front porch and went back inside. Porter retrieved a
bucket of water and washed some of the blood off of the porch. Porter gathered the
drugs in the house and placed them in a bag. He tied the bag with a length of fishing
line, walked to a storm drain in the street nearby, and tied the bag to the grate of the
storm drain so that the bag of drugs was hanging just below it.
Inga and Porter then staged the house to appear as if a robbery had occurred.
Inga told Fries that they were going to call the police and told Fries not to reveal
what had happened to the police. Inga threatened that something bad would happen
to Fries and her children if Fries did not comply.
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The investigation
Deputy J. Denholm of the Harris County Sheriff’s Office arrived at the scene
early that morning. Fries was standing outside Porter’s house, and she confirmed
that they had reported the shooting. As Denholm entered the house, he noticed that
the front door had been splintered, but the deadbolt was undamaged. Oncale’s body
was on the floor just inside the door. Porter was kneeling over the body. Denholm
observed that Oncale had been shot in the chest.
Denholm found no signs of struggle inside the house. At that time, Fries told
Denholm that she was asleep when the shooting occurred and did not know what
had happened. Porter told Denholm that he shot Oncale about 15 minutes before
Denholm arrived, in self-defense, after he found Oncale kicking in the front door.
Porter said that he knew Oncale but that they had not been getting along, and that
Oncale should not have been at Porter’s home.
Denholm placed Porter in his patrol car and went back into the house to
continue his investigation. Denholm found the proffered explanation of the
circumstances suspicious for several reasons: Oncale had no mask and was not
armed; Oncale’s truck was in the driveway; Fries and Porter stated that they had just
been in bed, yet they were fully dressed; there were marks and blood smears on the
front porch, indicating that Oncale’s body had been dragged and that someone had
tried to wipe up some of the blood; and there was an unexplained bloodstain on the
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rug in the living room. Further, the reported timing of the incident was not consistent
with the appearance of the body or of pooled blood nearby. The location of the
bullet’s entry and exit wounds also showed that the bullet had traveled downward
through Oncale’s body, which was not consistent with Porter’s explanation of the
events.
Denholm returned to the patrol car to check on Porter. Porter volunteered that
he had never had to shoot anyone, and that after shooting Oncale, Porter had tried to
resuscitate him and had carried Oncale outside. He also added that he had tried to
drive Oncale to the hospital, but realized that Oncale’s truck had blocked him in the
driveway. Denholm suspected that Porter was “making stuff up on the fly.”
Denholm and the other officers involved in the investigation into Oncale’s
death believed that Porter’s house had been staged to make it look like a burglary
had occurred. At the time, however, the investigation did not yield enough evidence
to support a charge against Porter.
The attorney’s removal and secretion of material evidence
Later that morning, after the police had left the scene, Porter paged Marshall
Shelsy, a local attorney, who was involved in a personal relationship with Porter’s
sister at that time. Shelsy arrived at the scene of the crime and agreed to act as
Porter’s attorney. Shelsy then performed a walk-through at the house with each
witness, including Fries.
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When Fries and Shelsy walked through the house, Porter was not present.
Fries led Shelsy to the living room and told Shelsy that she witnessed Porter shoot
Oncale while Oncale was sitting on the living-room couch. She pointed out the
middle cushion where Oncale had been seated.
Shelsy found a bullet hole in the couch cushion. He removed the cushion and
moved the couch. He then found a bullet hole in the back of the couch close to the
floor. Shelsy reached into the hole and pulled out a .45 caliber bullet. Shelsy placed
the bullet into his pocket and said to Fries, “Never speak of it again.”
Fries regretted lying to the police about the shooting. Several months after
the incident, after she had ended her relationship with Porter, Fries went to the Harris
County Sheriff’s office. She gave a written statement explaining that she had not
been truthful during the initial investigation, and she recounted that Porter shot
Oncale while Oncale was seated on the couch inside the house. She also stated that
Porter’s attorney had removed the bullet from the crime scene. Fries testified
similarly to these events at the trial.
The renewed investigation
More than 25 years later, in 2013, the sheriff’s office renewed its investigation
into Oncale’s death. Sergeant E. Clegg spoke with Fries. Fries’s responses were
consistent with her 1987 written statement, in which she stated that Porter shot
Oncale during an argument while Oncale was seated on the couch. She repeated to
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Clegg her statements about her walk-through with Shelsy and the events relating to
Shelsy’s recovery and removal of the bullet.
The investigators then subpoenaed Shelsy to appear before a grand jury.
Shelsy received immunity in exchange for his testimony, and he was ordered to
provide truthful testimony to the grand jury. Shelsy initially was evasive in
answering questions, but he eventually admitted to the grand jury that he had found
the bullet, taken it from the crime scene and placed it in his files, and later discarded
it. The grand jury indicted Porter for murder.
Shelsy’s testimony
At the trial, the State sought to introduce the events relating to Shelsy’s
conduct at the crime scene as observational facts that were not privileged. The trial
court held a hearing outside the presence of the jury to determine the admissibility
and scope of Shelsy’s testimony at trial. During the hearing, Shelsy testified that he
and Porter had communications about the case, and the “focus of the investigation”
when he did a walk-through with Porter was “[p]rincipally the front of the house.”
Shelsy then participated in a walk-through with Fries, where the “principal of [his]
focus” was “the living room.” Shelsy testified that Porter was not present when
Shelsy examined the couch and removed the bullet.
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Porter’s counsel at trial objected that Shelsy’s testimony was inadmissible
evidence that fell within the attorney-client privilege. Counsel called Porter to the
stand to confirm that Porter was asserting the privilege and did not desire to waive
it. Before Shelsy testified, the trial court overruled the objection, but it limited
Shelsy’s testimony “as it specifically relates to the events relating to the observation
and recovery of a projectile and what was done with the projectile.” The court
further warned, “In terms of [Shelsy] testifying as to what his observations were
about the scene, what that means, what that characterizes, what it comports with, I’m
not inclined to allow the State to get into that.” More specifically, the trial court
stated, “I’m going to limit it to . . . that he went in there, that he observed the thing
on [the] couch, that he recovered the projectile and put it in his pocket.”
Shelsy then testified before the jury that he met Porter through Porter’s sister,
whom Shelsy had been dating. Porter called Shelsy after the shooting, and Shelsy
arranged to visit the next day, which was a Sunday. Shelsy arrived at the home
around midday. According to his practice, he walked through the scene with each
witness. While on the walk-through with Fries, Shelsy observed a “tear mark or a
hole” in the front of the couch. Shelsy moved the couch and found a hole in the
lower back of the couch. Shelsy noticed the bullet behind the couch; he recovered
the bullet, showed it to Fries, and put it in his pocket. Shelsy put the bullet in a film
canister and stored it with the notes he took during his interviews with Porter and
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Fries. Shelsy kept the bullet with his files for about 25 years, after which time he
discarded the bullet along with his old files. Shelsy acknowledged that his conduct
could constitute evidence tampering, a felony under Texas law.
DISCUSSION
Porter contends that the trial court erred in denying his motion to exclude
Shelsy’s testimony because its admission violates the attorney-client privilege.
A. Applicable Law and Standard of Review
We review the trial court’s ruling denying applicability of a privilege for an
abuse of discretion. Carmona v. State, 947 S.W.2d 661, 664 (Tex. Crim. App. 1997).
We reverse the ruling only if “the trial court applied an erroneous legal standard, or
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 legal
conclusion.” Id. (quoting DuBose v. State, 915 S.W.2d 493, 498 (Tex. Crim. App.
1996)). A party asserting a privilege has the burden of showing that the privilege
applies. McAfee v. State, 467 S.W.3d 622, 645 (Tex. App.—Houston [1st Dist.]
2015, pet. ref’d); see Carmona, 947 S.W.2d at 663.
The Texas Rules of Evidence protect from disclosure the communications
between a client and his counsel when they are kept confidential and are made to
facilitate the rendition of legal services. See TEX. R. EVID. 503(b)(1); Cameron v.
State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007); McAfee, 467 S.W.3d at 642–43.
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The scope of the privilege is limited to communications “made by a client seeking
legal advice from a lawyer in [the lawyer’s] capacity as such and the communication
must relate to the purpose for which the advice is sought.” State v. DeAngelis, 116
S.W.3d 396, 404 (Tex. App.—El Paso 2003, no pet.), quoted in McAfee, 467 S.W.3d
at 642. Disclosure by the attorney does not waive the privilege absent the client’s
consent. McAfee, 467 S.W.3d at 643 (citing Carmona, 947 S.W.2d at 663).
Subsection (b)(2) of Rule 503 provides for a “Special Rule in a Criminal
Case.” TEX. R. EVID. 503(b)(2). This special rule recognizes a privilege “to prevent
a lawyer . . . from disclosing any other fact that came to the knowledge of the lawyer
or the lawyer’s representative by reason of the attorney-client relationship.” Id.
B. Analysis
This case presents the issue of whether the attorney-client privilege, including
the special rule for criminal cases, protects from disclosure the attorney’s description
of conduct he engaged in to remove and secrete material evidence from the crime
scene.
In that regard, Shelsy’s testimony did not concern a communication that he
had with Porter, nor work done to facilitate the rendition of legal advice. It
concerned Shelsy’s conduct in actively concealing available evidence from the
authorities. Although Shelsy believed that he “was doing the right thing, protecting
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[his] client,” he admitted that his acts constituted tampering with evidence, a felony
offense.
Neither Rule 503, nor the special rule for criminal cases, extend the privilege
to bar testimony regarding attorney conduct that constitutes tampering with
evidence. Such conduct is not in furtherance of the attorney-client relationship,
which is required to invoke the privilege. See Clark v. State, 261 S.W.2d 339, 347
(Tex. Crim. App.) (op. on reh’g), cert. denied, 346 U.S. 855, 74 S. Ct. 69 (1953)
(holding that attorney’s statement to client to “get rid of the weapon and sit tight”
overheard by telephone operator was not privileged). Texas Disciplinary Rule 1.05
and Texas Rule of Evidence 503 prohibit the use of the attorney-client privilege to
protect a client seeking a lawyer’s assistance to commit a crime or fraud. Mixon v.
State, 224 S.W.3d 206, 210 n.1 (Tex. Crim. App. 2007). Concomitantly, when a
lawyer engages in tampering with evidence, with or without the client’s knowledge,
he is not engaged in the rendition of legal services for that client. See TEX. R. EVID.
503(a)(1), (3) (defining “client” as one who “is rendered professional legal services
by a lawyer” or “consults a lawyer with a view to obtaining professional legal
services” and “lawyer” as a person authorized to practice law).
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In Clark v. State, the Court of Criminal Appeals explained that the attorney-
client privilege is constrained, by definition, to the provision of legal services, not to
include the commission of a crime. 261 S.W.2d at 347; see also TEX. R. EVID.
503(d)(1) (noting that the privilege does not apply “[i]f the lawyer’s services were
sought or obtained to enable or aid anyone to commit or plan to commit what the
client knew or reasonable should have known to be a fraud.”). In rejecting the claim
of privilege in Clark, the Court reasoned:
One who knowing that an offense has been committed and conceals the
offender or aids him to evade arrest or trial becomes an accessory. The
fact that the aider may be a member of the bar and the attorney for the
offender will not prevent his becoming an accessory.
261 S.W.2d at 347. The Court held that the overheard conversation was admissible
because the statement was “not within the realm of legitimate counsel and
employment.” Id.
Shelsy’s testimony concerning his actions in taking and secreting the bullet is
subject to a similar analysis—the acts to which he testified fall outside the privilege
itself. Shelsy was dating Porter’s sister at the time. He told the jury that he removed
and then stored the bullet with his files and, after 25 years, he discarded the bullet
with his old files. Although Shelsy subjectively may have considered his conduct to
be in his client’s interest, that conduct does not, as a matter of law, constitute the
rendition of professional legal services. See Clark, 261 S.W.2d at 347.
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Porter contends that Rule 503(b)(2)’s special rule for criminal cases broadens
the attorney-client privilege to include Shelsy’s testimony because Shelsy related
facts that came to his knowledge through his representation of Porter. But the special
rule is subject to the definitions that govern the privilege; it exists only for facts that
came to the attorney’s knowledge “by reason of the attorney-client relationship.”
See TEX. R. EVID. 503(b)(2) (protecting from disclosure any fact that came to the
lawyer’s knowledge through “the attorney-client relationship.”). The special rule
does not disregard the defining parameters of this relationship in what it means to
act as an “attorney” and a “client.” Id. 503(a)(1), (3). The “attorney-client
relationship” exists between clients, who are defined as those seeking or accepting
legal services, and lawyers, who are defined as those who are authorized to provide
legal services. See id. Shelsy’s removal and secretion of the bullet was not a legal
service. Rather, he acted outside of his role as a lawyer by tampering with the crime
scene. He did so in front of a witness and outside his client’s presence. His
knowledge of his own conduct in secreting evidence was not gained “by reason of”
his attorney-client relationship with Porter, but through acts that he committed
outside the scope of that relationship.
For this reason, Porter’s reliance on Sanford v. State, 21 S.W.3d 337 (Tex.
App.—El Paso 2000, no pet.), is misplaced. In Sanford, the defendant assaulted and
kidnapped a former business associate using the associate’s van to conduct the
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kidnapping. Id. at 340. Shortly after the crime, a police investigator arrived at
Sanford’s attorney’s office, while Sanford was meeting with the attorney. Id. at 341.
The attorney stepped out of the meeting to speak with the investigator. Id. at 342.
The attorney returned to his office and asked Sanford whether he knew the van’s
location. Id. Then, the attorney stepped out and told the investigator, “‘It might be
at the coliseum and it might have the keys in it.’” Id. The El Paso Court of Appeals
observed that the attorney-client privilege did not prevent disclosure of the facts
surrounding the van’s location. Id. at 343–44. But, it held, the privilege did prohibit
the State from introducing at trial that Sanford’s attorney was the source of the
information that led police to the van, because the attorney had been provided that
information in a communication from his client. Id. at 344.
Unlike Sanford, this case does not involve the disclosure of an attorney-client
communication. Fries testified to the circumstances surrounding the location of the
bullet until the point that Shelsy removed it; Porter does not claim a privilege over
the subject matter of Fries’s eyewitness testimony. Shelsy’s testimony was
necessary because he removed and secreted the bullet. Because Shelsy’s acts were
unlawful, they cannot have been taken in furtherance of the attorney-client
relationship between Porter and Shelsy. See Clark, 261 S.W.2d at 347 (“The rule of
public policy which calls for the privileged character of the communication between
attorney and client, we think, demands that the rule be confined to the legitimate
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course of professional employment. It cannot consistent with the high purpose and
policy supporting the rule be here applied.”). Accordingly, we hold that Rule
503(b)(2) does not grant a privilege to protect these events from disclosure.
Finally, other than his discovery, secretion, and eventual destruction of the
bullet, which the trial court established as the scope of the allowable testimony,
Shelsy’s testimony overlaps with Fries’s testimony; thus, any error in failing to
further limit it was rendered harmless by its admission elsewhere in the record. See
Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“An error [if any] in
the admission of evidence is cured where the same evidence comes in elsewhere
without objection.”); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston
[1st Dist.] 2002, pet. ref’d) (noting that any error in admitting evidence is cured
where same evidence comes in elsewhere without objection).
Fries testified that she met with attorney “Shelby” at Inga’s house. Fries took
Shelsy into the living room. She testified that she told Shelsy that she saw Porter
shoot Oncale on the living-room couch. She observed Shelsy inspect the couch,
retrieve the bullet from that area, and put the bullet into his pocket. Shelsy’s
testimony was consistent with, and cumulative of, Fries’s testimony on these issues.
CONCLUSION
We hold that the trial court did not abuse its discretion in admitting Shelsy’s
testimony about his removal and secretion of the bullet, because these acts do not
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fall within the attorney-client relationship, and knowledge of them was not gained
by reason of that relationship. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Bland, Massengale, and Lloyd.
Publish. TEX. R. APP. P. 47.2(b).
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