                                 Fourth Court of Appeals
                                         San Antonio, Texas

                                    MEMORANDUM OPINION
                                             No. 04-19-00833-CV

                                       IN RE Christopher BURDICK

                                      Original Mandamus Proceeding 1

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Luz Elena D. Chapa, Justice
                  Beth Watkins, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: March 11, 2020

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           Relator, Christopher Burdick, and his former wife, Kathryn Saunders, are engaged in a

discovery dispute over whether certain text messages between Christopher and his current wife are

protected under the spousal privilege. Christopher asserts the trial court abused its discretion by

overruling his spousal privilege objection. He also asserts the trial court erred by ordering him to

produce other spousal communications that are outside the scope of Kathryn’s discovery request.

We agree and conditionally grant the petition for writ of mandamus.

                                               BACKGROUND

           Christopher and Kathryn were divorced in June 2015. They have two children, a girl born

in 2006 and a boy born in 2008. On August 13, 2018, Christopher filed a petition to modify the


1
 This proceeding arises out of Cause No. 2015-CI-00691, styled In the Interest of A.A.B. and C.C.B., Minor Children,
pending in the 225th Judicial District Court, Bexar County, Texas, the Honorable Peter Sakai presiding.
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parent-child relationship in which he asked (1) to be appointed the joint managing conservator

with the exclusive right to determine the children’s primary residence in Bexar County; (2) that

Kathryn’s access to and possession of the children be limited; and (3) that Kathryn be required to

use a Soberlink device no less than five times daily, to install an interlock device on her motor

vehicle, and to submit to drug testing. In his petition for writ of mandamus, Christopher contends

he sought the modifications “as a result of an incident that occurred in August 2018.” He does not

elaborate on the nature of the “incident.” 2

           Kathryn served Christopher with a Second Request for Production and Inspection of

Documents in which she sought a number of documents including the following:

           28. Any text message between [Christopher] and [his current wife] Sarah Burdick.
           Including, but not limited to, any text messages exchanged during the month of
           August 2018.

           Christopher objected and filed a motion for protective order in which he sought protection

from producing any communications between him and his current wife Sarah on the ground the

communications were protected under the spousal privilege. Kathryn filed a motion to overrule

the objections and to compel production. The trial court conducted a hearing on the parties’

motions, during which time the court and Christopher’s attorney addressed Christopher’s motion

for protective order:

           [Counsel]: Well, Your Honor, my motion for protective order then is not being —
           I want to be clear, it’s not being ruled on today.
           Court: Correct.
           [Counsel]: Okay.

2
    During a later hearing, Kathryn’s attorney stated:

                     I wanted to make sure that we’re clear on the spousal privilege. Here’s the issue Your
           Honor. This case was initiated, I’ll be very brief, but I think you need a little factual background.
           This case was initiated in August of 2018 by [Christopher]. It was initiated after the two children,
           who were in the home of their mother, my client, and had been following a week-on, week-off
           schedule for about three years, essentially, were — either ran away or were lured away by their
           father, but it is uncontested that both their father and his current wife were involved in picking them
           up a block or so from my client’s home without my client’s knowledge or consent.


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        The court then addressed Christopher’s objections to Kathryn’s second request for

production, including number 28, which is the subject of this original proceeding. The following

exchange occurred between the trial court and Christopher’s attorney:

        [Counsel]: Okay. Then No. 28 is a spousal privilege, Your Honor.
        Court: I will allow you to assert that. And, obviously, then it will have to be an in
        camera review and an argument of the law as to whether or not your privilege
        should be sustained. So —
        [Counsel] Well, now, Your Honor —
        Court: — I just ask that you submit it by way of privileged log.
        [Counsel]: Okay. And —
        ...
        [Counsel]: — how long do I have to submit these documents?
        Court: And how much —
        [Counsel]: Your Honor, I’ve been told they’re voluminous.
        Court: How much time do you need?
        [Counsel]: Well, there’s about 500 pages of text messages between my client and
        his spouse.

        Following the hearing, the trial court issued a letter ruling overruling Christopher’s spousal

privilege objection as well as his other general objections. Christopher filed his petition for writ

of mandamus (and, later, an amended petition). We stayed the trial court’s ruling compelling

production of the text messages and ordered Christopher to file the text messages with this court

for an in camera review. The text messages have been filed and Kathryn filed a response to the

petition.

                                   STANDARD OF REVIEW

        Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of

discretion when there is no other adequate remedy at law. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d

619, 623 (Tex. 2007) (orig. proceeding). To satisfy the clear abuse of discretion standard, the

relator must show “the trial court could reasonably have reached only one decision.” Walker v.

Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). “Mandamus is appropriate to protect

confidential documents from discovery.” In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 256



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(Tex. 2005) (orig. proceeding).     “If the trial court issues an erroneous order requiring the

production of privileged documents, the party claiming the privilege is left without an adequate

appellate remedy.” In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig.

proceeding).

                                    SPOUSAL PRIVILEGE

       Texas Rule of Evidence 504 provides in pertinent part as follows:

       (a) Confidential Communication Privilege.

               (1) Definition. A communication is “confidential” if a person makes
               it privately to the person’s spouse and does not intend its disclosure
               to any other person.
               (2) General Rule. A person has a privilege to refuse to disclose and
               to prevent any other person from disclosing a confidential
               communication made to the person’s spouse while they were
               married. This privilege survives termination of the marriage.
                                               ....

TEX. R. EVID. 504(a)(1), (2).

       The spousal privilege does not apply to, among other things, communications made in the

furtherance of crime or fraud; and crimes against family, spouse, household member, or minor

child. See id. 504(a)(4).

       As the party seeking to avoid discovery, Christopher had the burden to establish by

testimony or affidavit a prima facie case for the privilege. See Christus Santa Rosa, 492 S.W.3d

at 279. In her response to Christopher’s petition for writ of mandamus, Kathryn contended

Christopher did not present any affidavits or other evidence to support his claim that the requested

text messages were privileged. However, the documents themselves may constitute sufficient

evidence to make the prima facie showing. In re Stephens Inc., 579 S.W.3d 438, 445 (Tex. App.—

San Antonio 2019, orig. proceeding). If the party asserting the privilege establishes a prima facie

case for the privilege and “tenders documents to the trial court, the trial court must conduct an in



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camera inspection of those documents before deciding to compel production.” In re E.I. DuPont

de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (per curiam). If

Christopher presented a prima facie case establishing the text messages are privileged, the burden

then shifted to Kathryn to prove an exception to the privilege applies. See Christus Santa Rosa,

492 S.W.3d at 279-80.

       We have reviewed the 700 pages of text messages submitted for our in camera review.

Every text message is a communication between only Christopher and Sarah, and no third party is

included within those communications. The text messages themselves, therefore, establish a prima

facie case for the private nature of the act of communication between spouses. See TEX. R. EVID.

504(a)(1) (“A communication is ‘confidential’ if a person makes it privately to the person’s spouse

. . . .”). However, whether Christopher did not intend to disclose those text messages to any other

person is a question of fact. See Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.—Waco

1997, orig. proceeding) (holding, “issue of confidentiality focuses on the intent of the parties at

the time the communications are made”); Cameron County v. Hinojosa, 760 S.W.2d 742, 745

(Tex. App.—Corpus Christi 1988, orig. proceeding) (“However, if there is evidence that suggests

the privilege may not apply because the communication was not intended to be confidential, the

privilege was waived, etc., it becomes a fact question for the trial court, which must be resolved

from the documents themselves and/or extrinsic evidence presented at the hearing.”).

       If there is evidence the privilege may not apply because the communication was not

intended to remain confidential or because the privilege was waived, a fact issue exists for the trial

court to resolve. Stephens Inc., 579 S.W.3d at 443. “If the parties present conflicting evidence on

the applicability of the privilege, the trial court’s decision is conclusive.” Id. The record appears

to show Christopher was not given the opportunity to present evidence that he and Sarah intended

the text messages to remain confidential because the trial court declined to hear his motion for


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protective order. Kathryn’s attorney alluded to possible contradictory evidence that the spouses

did not intend the communications to be confidential or the privilege was waived by stating at the

hearing:

                Remember what the rule says. Rule 504 says you have to have intended the
         communication to have been confidential. And if they’re texting to one another
         about where to meet, and then go to the police station, that’s not confidential. But
         I can argue that at the appropriate time, but I wanted you to have that database.
         [Emphasis added.]

         Because the trial court did not consider Christopher’s motion for protective order, neither

Christopher nor Kathryn was able to establish whether the text messages were intended for

disclosure to any other person or whether an exception to the spousal privilege applied. Therefore,

the trial court abused its discretion by compelling production of the text messages.

                                                 CONCLUSION

         We conclude the trial court abused its discretion by overruling Christopher’s spousal

privilege objection in the absence of allowing evidence on the issue of whether Christopher did

not intend the “disclosure [of the text messages] to any other person.” See TEX. R. EVID. 504(a)(1).

Therefore, we conditionally grant the petition for writ of mandamus and direct the trial court to

vacate its letter ruling of November 15, 2019, no later than fifteen days from the date of this

opinion. 3

                                                           Luz Elena D. Chapa, Justice




3
  In his second issue, Christopher contends the trial court’s hearing only addressed Kathryn’s second request for
production and not her third request; however, the binder of text messages given to the trial court for in camera review
included text messages from September 1, 2018 through September 3, 2019—all outside the scope of Kathryn’s
second request for production. Therefore, Christopher asserts the trial court abused its discretion by ordering the
entire binder of text messages turned over to Kathryn. Because we order the trial court to vacate its November 15,
2019 letter ruling, we do not address this complaint.


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