Opinion issued January 10, 2017




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-15-00960-CR
                           ———————————
                       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.

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      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.



                                          5
       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



                                           6
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.




                                           7
      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



                                           8
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.



                                          9
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




                                            10
[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).




                                          11
      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.




                                           12
      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



                                            13
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



                                          14
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



                                         15
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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